Probate and Administration of Decedents’ Estates (Portfolio 804)

Description

The Bloomberg Tax Portfolio, Probate and Administration of Decedents’ Estates, No. 804, is an introduction to, and overview of, the process of probate and estate administration. Although the laws of each state differ with respect to the specifics of estate administration, there are sufficient common elements in estate administration in the various jurisdictions to justify the analysis in this Portfolio. Since the Portfolio does not rely on the probate law of any one state, extensive reference is made to the Uniform Probate Code (UPC), which has been enacted in only a minority of states, and the organization of the Detailed Analysis follows that of the UPC.

In addition to relying on the UPC, the Portfolio makes extensive reference to the statutory and case law of the states where appropriate to illustrate the requirements of probate and estate administration, as well as to highlight the differing approaches taken in different jurisdictions. A practitioner seeking guidance as to the requirements of a particular state should make reference to the many excellent estate administration guides published by state and local bar associations and their continuing education affiliates.

The Detailed Analysis begins with a discussion of the purpose of the probate process and examines alternative methods for transferring property at death. It then addresses the issues of where the will should be probated and the appointment of the executor/personal representative. The responsibilities of the executor are described in detail, as well as the supervisory role of the probate court. Particular attention is given to the executor’s role in marshaling the assets of the estate, the management of those assets, responding to claims of creditors, tax elections, apportionment of death taxes, sales of estate property, and distributing the estate to its heirs. The role of the attorney in representing the estate is also discussed, including the determination of attorneys’ fees and their approval by the court. The Portfolio also examines the ethical issues that may face the attorney for an estate, with recommendations as to how the attorney can ethically and competently represent the estate. The Worksheets include practice aids useful in an estate practice.

This Portfolio may be cited as Bekerman, 804 T.M., Probate and Administration of Decedents’ Estates.

Table of Contents

I. Introduction and Overview
II. Goal of State Probate Law
III. Fundamental Role of the Fiduciary
IV. Must There Be Probate?
V. Taking Steps to Minimize or Avoid Probate
VI. Where Should the Estate Be Probated? Issues of Jurisdiction and Venue
VII. Appointment of the Personal Representative and Key Issues with Respect to the Appointment
VIII. A Job Description for the Personal Representative – An Overview of Rights, Duties, Powers and Potential Liabilities
IX. Gathering and Inventorying the Estate – The First Essential Function of the Personal Representative
X. Hiring Agents and Attorneys to Assist in Estate Administration
XI. Attorneys’ Fees
XII. Managing the Assets of the Estate
XIII. Liability of the Executor in Contract and Tort
XIV. Handling Creditors’ Claims
XV. Overview of Various Estate and Income Tax Elections
XVI. Apportionment of Estate and State Death Taxes
XVII. Raising Funds in the Estate: Issues Associated with Sales of Estate Property
XVIII. Accounting for, Settling, and Closing the Estate
XIX. Paying the Personal Representative
XX. Ancillary Administration
XXI. Joint Executors
XXII. An Overview of the Ethics Issues in Probate and Estate Administration