CHAPTER 4 The Probate Process

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1 CHAPTER 4 The Probate Process DISCUSSION QUESTIONS 1. Describe the probate process. The probate process is a legal proceeding that serves to prove the validity of any existing will, supervise the orderly distribution of the decedent s assets to the heirs, and protect creditors by ensuring that valid debts of the estate are paid. Probate is also the legal process for the surviving heirs to obtain legal title to their inherited property. 2. Describe at least three advantages and three disadvantages of the probate process. Advantages Protects creditors. Provides clear title to heirs. Improves the likelihood that parties of interest will receive notice and the opportunity to be heard. Provides for an orderly administration of the decedent s assets. Disadvantages May be costly. Can result in delays. Open to public scrutiny. 3. Identify alternatives to probate regarding the disposition of property. Property held tenancy by the entirety or joint tenancy with right of survivorship. Property held within a revocable living trust. Property held within an irrevocable trust. Proceeds of an insurance policy with named beneficiary. Pay-on-death (POD) or transfer-on-death (TOD) accounts for bank and investment accounts. 4. Discuss the main differences between an executor and an administrator. The main differences between an executor and an administrator are that the decedent chooses the executor while the probate court names the administrator. While the administrator must post a bond, that requirement can be waived for the executor by the decedent in the will. DISCUSSION QUESTIONS 31

2 5. List the duties of the executor and the administrator. Executor Locates and proves the will. Locates witnesses to the will. Receives letters testamentary from court. Administrator Petitions court for his or her own appointment. Receives letters of administration. Posts the required bond. Both Locate and assemble property. Safeguard, manage, and invest property. Advertise in legal newspapers that the person has died in order to put creditors and other interested parties on notice. Locate and communicate with potential beneficiaries. Pay the expenses of the decedent. Pay the debts of the decedent. File tax returns, such as forms 1040, 1041, 706, and 709, and make tax payments. Distribute assets to beneficiaries according to the will or the laws of intestacy. 6. Define pay-on-death and transfer-on-death accounts. Pay-on-death (POD) and transfer-on-death (TOD) accounts are bank (POD) or investment (TOD) accounts with listed beneficiaries. Because the accounts have listed beneficiaries, the assets within the account transfer by virtue of contract law and do not pass through probate. 7. Identify assets that pass outside of probate by contract law. Assets that transfer by contract are assets with listed named beneficiaries other than the decedent. The following assets transfer by contract: life insurance, pension plans, IRAs, annuities, pay-on-death accounts, and transfer-on-death accounts. 8. Identify assets that pass outside of probate by titling or trust law. The following assets transfer by trust and titling law: joint tenancy with right of survivorship (JTWROS), tenancy by the entirety, and all trust accounts. 32 CHAPTER 4: THE PROBATE PROCESS

3 MULTIPLE-CHOICE PROBLEMS 1. If Paula died with each of the following property interests, which will be excluded from her probate estate? a. Property owned as community property. b. Property held tenancy in common. c. Death proceeds of life insurance payable to a living stranger. d. Property owned fee simple. The correct answer is c. All except c are included in a decedent s probate estate. Life insurance and other death proceeds are included in the decedent s gross estate, but are not included in the decedent s probate estate. 2. Many planners believe that the best estate plan excludes as many assets as possible from the probate estate. Which of the following statements justifies these planners belief? a. The probate assets are not subject to creditors. b. The probate estate is filed with the court and can become public knowledge. c. The more excluded assets from the probate estate, the more expensive the administration is likely to be. d. The more assets that go through the probate process, the faster the heirs are likely to receive the assets. The correct answer is b. The probate estate becomes public knowledge, thus eliminating the privacy of the deceased. 3. Which of the following is generally included in a decedent s probate estate? a. Revocable trust with a named living beneficiary. b. Fee simple ownership specifically bequeathed in a decedent s will. c. Life insurance with a named living beneficiary. d. Transfer-on-death investment account with a named living beneficiary. The correct answer is b. Any property owned fee simple would be included in the probate estate. Generally, the other options listed will avoid probate as long as the listed beneficiary is alive to receive the proceeds of the policy/account or trust. If the beneficiaries have predeceased the decedent, or if beneficiaries have not been named, the proceeds will revert to the decedent s estate and pass through probate. 4. Craig s attorney has advised him to set up trusts to avoid probate. Which of the following statements regarding the probate process is not correct? a. The distribution of probate assets can be delayed. b. Through the probate process heirs and/or legatees are given clear title to the property. c. Creditors are protected through the probate process. d. The probate process is confidential. MULTIPLE-CHOICE PROBLEMS 33

4 The correct answer is d. The probate process is not confidential. Certain information is required to be filed with the court and becomes public information. Answers a, b, and c are true statements. 5. Which of the following property interests of a decedent will avoid probate? a. Proceeds of life insurance payable to the decedent s estate. b. Community property. c. Property owned tenants in common with decedent s father. d. Proceeds of life insurance payable to the decedent s living son. The correct answer is d. Proceeds of a life insurance policy payable to the decedent s living son will avoid probate. Answers a, b, and c will be included in the probate estate. 6. Which of the following is a disadvantage of the probate process? a. The decedent s heirs and/or legatees are given clear title to property. b. The probate process requires several court filings. c. The probate process provides for an orderly distribution of the decedent s assets. d. The decedent s creditors are protected. The correct answer is b. The probate process requires several court filings which create additional costs and becomes public information. This is a definite disadvantage to the probate process. Answers a, c, and d are all advantages of the probate process. 7. Which of the following is considered an advantage of the probate process? a. The probate process creates delays. b. The probate process is costly. c. Heirs receive property with clear title. d. Information that is filed with the court becomes public information. The correct answer is c. A definite advantage to the probate process is that the heirs are able to secure clear title to assets. Answers a, b, and d are all disadvantages to the probate process. 8. Ramona inherited the property listed below from her father upon his death. Which of the following property interests passed to her through probate? a. A 2005 Porsche titled and held within a revocable living trust. b. Ramona s father s community property share of a vacation property. c. A $300,000 distribution to Ramona, as listed beneficiary, from her father s 401(k) plan. d. Title to a Manhattan condo previously owned within a trust with Ramona listed as the beneficiary at her father s death. 34 CHAPTER 4: THE PROBATE PROCESS

5 The correct answer is b. Community property passes through probate. Property held within a revocable living trust transfers per the trust document, thus avoiding the probate process. A distribution to a listed beneficiary of a qualified retirement plan passes per contract law, thus avoiding the probate process. Real estate included in a trust transfers per the trust document, thus avoiding the probate process. 9. Tom died owning the following property. Which would not be included in Tom s probate estate? 1. A certificate of deposit, in Tom s name, at the local bank. 2. An interest in commercial investment real estate held tenancy in common with a son of the decedent. 3. Retirement plan proceeds made payable to Tom s daughter. 4. A mountain vacation home Tom owns jointly (JTWROS) with his wife. a. 1 only. b. 3 and 4. c. 1, 2, and 3. d. 1, 2, and 4. The correct answer is b. Items 3 and 4 are not included in Tom s probate estate. Retirement plan proceeds payable to a listed living beneficiary transfer by contract law, and property owned JTWROS transfers by operation of state law to the surviving joint tenants. Items 1 and 2 are included in Tom s probate estate. A certificate of deposit in Tom s name would be included in Tom s probate estate. Interest in property held as a tenancy in common does not have an automatic right of survivorship and thus must transfer through the probate process for retitling. 10. Which of the following items will pass through probate? a. Retirement plan with someone other than the decedent listed as the beneficiary. b. Investment real estate held JTWROS. c. Personal residence held tenancy by the entirety. d. Life insurance policy with no designated beneficiary. The correct answer is d. A life insurance policy without a named beneficiary is included in the decedent s probate estate. Proceeds of a life insurance policy with a listed beneficiary pass to the listed beneficiary by contract law and avoid the probate process. An interest in property held JTWROS passes by state law to the surviving joint tenants and avoids the probate process. An interest in property held tenancy by the entirety passes by state law to the surviving spouse and avoids the probate process. MULTIPLE-CHOICE PROBLEMS 35

6 11. Carol s executor has located all of her property. Given the following property listing, what is the total value of Carol s probate estate? Life Insurance Face $1,000,000 Beneficiary is James, Carol s son. 401(k) Balance $350,000 Beneficiary is Carla, Carol s Daughter Vacation Home Value $460,000 Titled Tenancy by Entirety with Jim Automobile Value $24,000 Owned by Carol a. $24,000. b. $484,000. c. $834,000. d. $1,024,000. The correct answer is a. Only the automobile, valued at $24,000, would be included in Carol s probate estate. Because Carol has a named beneficiary, the life insurance and the 401(k) will transfer per contract law to the listed beneficiaries. The property owned tenancy by the entirety will transfer automatically, per the state law, to Carol s husband Jim. 12. Krista would like to reduce the risk of public scrutiny of her assets at her death. Which of the following would not help Krista accomplish this goal? a. Place all property in trust. b. Retitle property so that it is titled with a survivorship feature. c. Include a specific bequest of each and every item Krista owns in her will. d. Use items such as annuities, PODs and TODs. The correct answer is c. Krista must avoid the probate process if she wants to avoid public scrutiny. The probate estate includes any asset that must be retitled, or does not transfer by operation of law or trust document. Answer c would not help Krista accomplish her goal because even specific bequests are included in the probate estate. Property placed in trust will transfer per the trust document. Property titled with a survivorship feature will transfer per the operation of law. Items such as annuities, PODs, and TODs will transfer per contract law. All of these methods will avoid the probate process, thus helping Krista accomplish her goal of avoiding public scrutiny. 36 CHAPTER 4: THE PROBATE PROCESS

7 13. Eric owns the following property: Property Joint Owner Titling Home None Fee Simple Stock in ABC Corp Brother, Jim Tenancy in Common Beach House Wife, Rebecca Tenancy by the Entirety Checking Account None Pay-on-Death to Son Which of the following is included in Eric s probate estate? a. Home and stock in ABC Corp. b. Home, beach house, and checking account. c. Stock in ABC Corp and checking account. d. Home only. The correct answer is a. Eric s home and his tenancy in common interest in the ABC Corp stock owned with his brother will be included in his probate estate. Eric owns the home outright and the property will have to pass through probate for retitling. An interest held as a tenancy in common does not have an automatic right of survivorship, and as such, must pass through probate for retitling. The beach house owned tenancy by entirety with his wife, Rebecca, has an automatic right of survivorship to his wife. The property will pass by operation of state law and will not pass through the probate process. The checking account with the POD beneficiary designation will transfer to Eric s son per contract law and will not pass through the probate process. MULTIPLE-CHOICE PROBLEMS 37

8 38 CHAPTER 4: THE PROBATE PROCESS

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