Approved and recommended for enactment in all the states with comments


Part 2. Venue for Probate and Administration; Priority to Administer; Demand for Notice



Download 3.59 Mb.
Page23/48
Date30.04.2018
Size3.59 Mb.
#46985
1   ...   19   20   21   22   23   24   25   26   ...   48
Part 2. Venue for Probate and Administration; Priority to Administer; Demand for Notice
SECTION 3-201. Venue for First and Subsequent Estate Proceedings; Location of Property.

(a) Venue for the first informal or formal testacy or appointment proceedings after a decedent’s death is:

(1) in the [county] where the decedent had his domicile at the time of his death; or

(2) if the decedent was not domiciled in this state, in any [county] where property of the decedent was located at the time of his death.

(b) Venue for all subsequent proceedings within the exclusive jurisdiction of the court is in the place where the initial proceeding occurred, unless the initial proceeding has been transferred as provided in Section 1-303 or subsection (c).

(c) If the first proceeding was informal, on application of an interested person and after notice to the proponent in the first proceeding, the court, upon finding that venue is elsewhere, may transfer the proceeding and the file to the other court.

(d) For the purpose of aiding determinations concerning location of assets which may be relevant in cases involving non-domiciliaries, a debt, other than one evidenced by investment or commercial paper or other instrument in favor of a non-domiciliary is located where the debtor resides or, if the debtor is a person other than an individual, at the place where it has its principal office. Commercial paper, investment paper and other instruments are located where the instrument is. An interest in property held in trust is located where the trustee may be sued.

Comment


Sections 1-303 and 3-201 cover the subject of venue for estate proceedings. Sections 3-202, 3-301, 3-303 and 3-309 also may be relevant.
The provisions for transfer of venue appear in Section 1-303.
The interplay of these several sections may be illustrated best by examples.
Example 1. A formal probate or appointment proceeding is initiated in A County. Interested persons who believe that venue is in B County rather than A County must raise their question about venue in A County, because Section 1-303 gives the court in which the proceeding is first commenced authority to resolve disputes over venue. If the court in A County erroneously determines that it has venue, the remedy is by appeal.
Example 2. An informal probate or appointment application is filed and granted without notice in A County. If interested persons wish to challenge the Registrar’s determination of venue, they may not simply file a formal proceeding in the county of their choice and thus force the proponent in the prior proceeding to debate the question of venue in their county. Section 3-201(b) locates the venue of any subsequent proceeding where the first proceeding occurred. The function of subsection (b) is obvious when one thinks of subsequent proceedings as those which relate to claims, or accounts, or to efforts to control a personal representative. It is less obvious when it seems to locate the forum for squabbles over venue at the place accepting the first informal application. Still, the applicant seeking an informal order must be careful about the statements he makes in his application because he may be charged with perjury under Section 1-310 if he is deliberately inaccurate. Moreover, the Registrar must be satisfied that the allegations in the application support a finding of venue. Section 3-201(c) provides a remedy for one who is upset about the venue-locating impact of a prior order in an informal proceeding and who does not wish to engage in full litigation about venue in the forum chosen by the other interested person unless he is forced to do so. Using it, he may succeed in getting the A County Court to transfer the proceedings to the county of his choice. He would be well advised to initiate formal proceedings if he gets the chance, for if he relies on informal proceedings, he, too, may be “bumped” if the judge in B County agrees with some movant that venue was not in B County.
Example 3. If the decedent’s domicile was not in the state, venue is proper under Sections 3-201 and 1-303 in any county where he had assets.
One contemplating starting administration because of the presence of local assets should have several other sections of the Code in mind. First, by use of the recognition provisions in Article IV, it may be possible to avoid administration in any state other than that in which the decedent was domiciled. Second, Section 3-203 may apply to give priority for local appointment to the representative appointed at domicile. Third, under Section 3-309, informal appointment proceedings in this state will be dismissed if it is known that a personal representative has been previously appointed at domicile.
SECTION 3-202. Appointment or Testacy Proceedings; Conflicting Claim of Domicile in Another State. If conflicting claims as to the domicile of a decedent are made in a formal testacy or appointment proceeding commenced in this state, and in a testacy or appointment proceeding after notice pending at the same time in another state, the court of this state must stay, dismiss, or permit suitable amendment in, the proceeding here unless it is determined that the local proceeding was commenced before the proceeding elsewhere. The determination of domicile in the proceeding first commenced must be accepted as determinative in the proceeding in this state.

Comment


This section is designed to reduce the possibility that conflicting findings of domicile in two or more states may result in inconsistent administration and distribution of parts of the same estate. Section 3-408 dealing with the effect of adjudications in other states concerning testacy supports the same general purpose to use domiciliary law to unify succession of property located in different states.
Whether testate or intestate, succession should follow the presumed wishes of the decedent whenever possible. Unless a decedent leaves a separate will for the portion of his estate located in each different state, it is highly unlikely that he would want different portions of his estate subject to different rules simply because courts reach conflicting conclusions concerning his domicile. It is pointless to debate whether he would prefer one or the other of the conflicting rules, when the paramount inference is that the decedent would prefer that his estate be unified under either rule rather than wasted in litigation.
The section adds very little to existing law. If a previous estate proceeding in State A has determined that the decedent was a domiciliary of A, persons who were personally before the court in A would be precluded by the principles of res judicata or collateral estoppel (and full faith and credit) from relitigating the issue of domicile in a later proceeding in State B. Probably, it would not matter in this setting that domicile was a jurisdictional fact. Stoll v. Gottlieb, 59 S.Ct. 134, 305 U.S. 165, 83 L. Ed. 104 (1938). Even if the parties to a present proceeding were not personally before the court in an earlier proceeding in State A involving the same decedent, the prior judgment would be binding as to property subject to the power of the courts in A, on persons to whom due notice of the proceeding was given. Riley v. New York Trust Co., 62 S.Ct. 608, 315 U.S. 343, 86 L. Ed. 885 (1942); Mullane v. Central Hanover Bank and Trust Co., 70 S.Ct. 652, 339 U.S. 306, 94 L. Ed. 865 (1950).
Where a court learns that parties before it are also parties to previously initiated litigation involving a common question, traditional judicial reluctance to deciding unnecessary questions, as well as considerations of comity, are likely to lead it to delay the local proceedings to await the result in the other court. A somewhat more troublesome question is involved when one of the parties before the local court manifests a determination not to appear personally in the prior initiated proceedings so that he can preserve his ability to litigate contested points in a more friendly, or convenient, forum. But, the need to preserve all possible advantages available to particular litigants should be subordinated to the decedent’s probable wish that his estate not be wasted in unnecessary litigation. Thus, the section requires that the local claimant either initiate litigation in the forum of his choice before litigation is started somewhere else, or accept the necessity of contesting unwanted views concerning the decedent’s domicile offered in litigation pending elsewhere.
It is to be noted, in this connection, that the local suitor always will have a chance to contest the question of domicile in the other state. His locally initiated proceedings may proceed to a valid judgment accepting his theory of the case unless parties who would oppose him appear and defend on the theory that the domicile question is currently being litigated elsewhere. If the litigation in the other state has proceeded to judgment, Section 3-408 rather than the instant section will govern. If this section applies, it will mean that the foreign proceedings are still pending, so that the local person’s contention concerning domicile can be made therein even though until the defense of litigation elsewhere is offered in the local proceedings, he may not have been notified of the foreign proceeding.
SECTION 3-203. Priority Among Persons Seeking Appointment as Personal Representative.

(a) Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order:

(1) the person with priority as determined by a probated will including a person nominated by a power conferred in a will;

(2) the surviving spouse of the decedent who is a devisee of the decedent;

(3) other devisees of the decedent;

(4) the surviving spouse of the decedent;

(5) other heirs of the decedent;

(6) 45 days after the death of the decedent, any creditor.

(b) An objection to an appointment can be made only in formal proceedings. In case of objection the priorities stated in subsection (a) apply except that

(1) if the estate appears to be more than adequate to meet exemptions and costs of administration but inadequate to discharge anticipated unsecured claims, the court, on petition of creditors, may appoint any qualified person;

(2) in case of objection to appointment of a person other than one whose priority is determined by will by an heir or devisee appearing to have a substantial interest in the estate, the court may appoint a person who is acceptable to heirs and devisees whose interests in the estate appear to be worth in total more than half of the probable distributable value, or, in default of this accord any suitable person.

(c) A person entitled to letters under paragraphs (2) through (5) of subsection (a) above, and a person aged [18] and over who would be entitled to letters but for his age, may nominate a qualified person to act as personal representative. Any person aged [18] and over may renounce his right to nominate or to an appointment by appropriate writing filed with the court. When two or more persons share a priority, those of them who do not renounce must concur in nominating another to act for them, or in applying for appointment.

(d) Conservators of the estates of protected persons, or if there is no conservator, any guardian except a guardian ad litem of a minor or incapacitated person, may exercise the same right to nominate, to object to another’s appointment, or to participate in determining the preference of a majority in interest of the heirs and devisees that the protected person or ward would have if qualified for appointment.

(e) Appointment of one who does not have priority, including priority resulting from renunciation or nomination determined pursuant to this section, may be made only in formal proceedings. Before appointing one without priority, the court must determine that those having priority although given notice of the proceedings have failed to request appointment or to nominate another for appointment, and that administration is necessary.

(f) No person is qualified to serve as a personal representative who is:

(1) under the age of [21];

(2) a person whom the court finds unsuitable in formal proceedings.

(g) A personal representative appointed by a court of the decedent’s domicile has priority over all other persons except where the decedent’s will nominates different persons to be personal representative in this state and in the state of domicile. The domiciliary personal representative may nominate another, who shall have the same priority as the domiciliary personal representative.

(h) This section governs priority for appointment of a successor personal representative but does not apply to the selection of a special administrator.

Comment


The priorities applicable to informal proceedings are applicable to formal proceedings. However, if the proceedings are formal, a person with a substantial interest may object to the selection of one having priority other than because of will provisions. The provision for majority approval which is triggered by such a protest can be handled in a formal proceeding since all interested persons will be before the court, and a judge capable of handling discretionary matters, will be involved.
In considering this section as it relates to a devise to a trustee for various beneficiaries, it is to be noted that “interested persons” is defined by Section 1-201 to include fiduciaries. Also, Sections 1-403(2) and 3-912 show a purpose to make trustees serve as representatives of all beneficiaries. The provision in subsection (d) is consistent.
If a state’s statutes recognize a public administrator or public trustee as the appropriate agency to seek administration of estates in which the state may have an interest, it would be appropriate to indicate in this section the circumstances under which such an officer may seek administration. If no officer is recognized locally, the state could claim as heir by virtue of Section 2-105.
Subsection (g) was inserted in connection with the decision to abandon the effort to describe ancillary administration in Article IV. Other provisions in Article III which are relevant to administration of assets in a state other than that of the decedent’s domicile are Section 1-301 (territorial effect), Section 3-201 (venue), Section 3-308 (informal appointment for non-resident decedent delayed 30 days), Section 3-309 (no informal appointment here if a representative has been appointed at domicile), Section 3-815 (duty of personal representative where administration is more than one state) and Sections 4-201 to 4-205 (local recognition of foreign personal representatives).
The meaning of “spouse” is determined by Section 2-802.
SECTION 3-204. Demand for Notice of Order or Filing Concerning Decedent’s Estate. Any person desiring notice of any order or filing pertaining to a decedent’s estate in which he has a financial or property interest, may file a demand for notice with the court at any time after the death of the decedent stating the name of the decedent, the nature of his interest in the estate, and the demandant’s address or that of his attorney. The clerk shall mail a copy of the demand to the personal representative, if one has been appointed. After filing of a demand, no order or filing to which the demand relates shall be made or accepted without notice as prescribed in Section 1-401 to the demandant or his attorney. The validity of an order which is issued or filing which is accepted without compliance with this requirement shall not be affected by the error, but the petitioner receiving the order or the person making the filing may be liable for any damage caused by the absence of notice. The requirement of notice arising from a demand under this provision may be waived in writing by the demandant and shall cease upon the termination of his interest in the estate.

Comment


The notice required as the result of demand under this section is regulated as far as time and manner requirements are concerned by Section 1-401.
This section would apply to any order which might be made in a supervised administration proceeding.
Part 3. Informal Probate and Appointment Proceedings; succession without administration
Subpart 1. Informal Probate and Appointment Proceedings
SECTION 3-301. Informal Probate or Appointment Proceedings; Application; Contents.

(a) Applications for informal probate or informal appointment shall be directed to the Registrar, and verified by the applicant to be accurate and complete to the best of his knowledge and belief as to the following information:

(1) Every application for informal probate of a will or for informal appointment of a personal representative other than a special or successor representative, shall contain the following:

(A) a statement of the interest of the applicant;

(B) the name, and date of death of the decedent, his age, and the county and state of his domicile at the time of death, and the names and addresses of the spouse, children, heirs and devisees and the ages of any who are minors so far as known or ascertainable with reasonable diligence by the applicant;

(C) if the decedent was not domiciled in the state at the time of his death, a statement showing venue;

(D) a statement identifying and indicating the address of any personal representative of the decedent appointed in this state or elsewhere whose appointment has not been terminated;

(E) a statement indicating whether the applicant has received a demand for notice, or is aware of any demand for notice of any probate or appointment proceeding concerning the decedent that may have been filed in this state or elsewhere; and

(F) that the time limit for informal probate or appointment as provided in this [article] has not expired either because three years or less have passed since the decedent’s death, or, if more than three years from death have passed, circumstances as described by Section 3-108 have occurred authorizing tardy probate or appointment.

(2) An application for informal probate of a will shall state the following in addition to the statements required by paragraph (1):

(A) that the original of the decedent’s last will is in the possession of the court, or accompanies the application, or that an authenticated copy of a will probated in another jurisdiction accompanies the application;

(B) that the applicant, to the best of his knowledge, believes the will to have been validly executed;

(C) that after the exercise of reasonable diligence, the applicant is unaware of any instrument revoking the will, and that the applicant believes that the instrument which is the subject of the application is the decedent’s last will.

(3) An application for informal appointment of a personal representative to administer an estate under a will shall describe the will by date of execution and state the time and place of probate or the pending application or petition for probate. The application for appointment shall adopt the statements in the application or petition for probate and state the name, address and priority for appointment of the person whose appointment is sought.

(4) An application for informal appointment of an administrator in intestacy shall state in addition to the statements required by paragraph (1):

(A) that after the exercise of reasonable diligence, the applicant is unaware of any unrevoked testamentary instrument relating to property having a situs in this state under Section 1-301, or, a statement why any such instrument of which he may be aware is not being probated;

(B) the priority of the person whose appointment is sought and the names of any other persons having a prior or equal right to the appointment under Section 3-203.

(5) An application for appointment of a personal representative to succeed a personal representative appointed under a different testacy status shall refer to the order in the most recent testacy proceeding, state the name and address of the person whose appointment is sought and of the person whose appointment will be terminated if the application is granted, and describe the priority of the applicant.

(6) An application for appointment of a personal representative to succeed a personal representative who has tendered a resignation as provided in 3-610(c), or whose appointment has been terminated by death or removal, shall adopt the statements in the application or petition which led to the appointment of the person being succeeded except as specifically changed or corrected, state the name and address of the person who seeks appointment as successor, and describe the priority of the applicant.

(b) By verifying an application for informal probate or informal appointment, the applicant submits personally to the jurisdiction of the court in any proceeding for relief from fraud relating to the application, or for perjury, that may be instituted against him.

Comment
Forcing one who seeks informal probate or informal appointment to make oath before a public official concerning the details required of applications should deter persons who might otherwise misuse the no-notice feature of informal proceedings. The application is available as a part of the public record. If deliberately false representation is made, remedies for fraud will be available to injured persons without specified time limit (see Article I). The section is believed to provide important safeguards that may extend well beyond those presently available under supervised administration for persons damaged by deliberate wrongdoing.
Section 1-310 deals with verification.
In 1975, the Joint Editorial Board recommended the addition of subsection (b) to reflect an improvement accomplished in the first enactment in Idaho. The addition, which is a form of long-arm provision that affects everyone who acts as an applicant in informal proceedings, in conjunction with Section 1-106 provides a remedy in the court of probate against anyone who might make known misstatements in an application. The addition is not needed in the case of an applicant who becomes a personal representative as a result of his application, for the implied consent provided in Section 3-602 would cover the matter. Also, the requirement that the applicant state that time limits on informal probate and appointment have not run, formerly appearing as (D) under paragraph (2) was expanded to refer to informal appointment and moved into paragraph (1). Correcting an oversight in the original text, this change coordinates the statements required in an application with the limitations provisions of Section 3-108.
SECTION 3-302. Informal Probate; Duty of Registrar; Effect of Informal Probate. Upon receipt of an application requesting informal probate of a will, the Registrar, upon making the findings required by Section 3-303 shall issue a written statement of informal probate if at least 120 hours have elapsed since the decedent’s death. Informal probate is conclusive as to all persons until superseded by an order in a formal testacy proceeding. No defect in the application or procedure relating thereto which leads to informal probate of a will renders the probate void.

Comment


Sections 68 and 70 of the Model Probate Code (1946) contemplate probate by judicial order as the only method of validating a will. This “umbrella” section and the sections it refers to describe an alternative procedure called “informal probate”. It is a statement of probate by the Registrar. A succeeding section describes cases in which informal probate is to be denied. “Informal probate” is subjected to safeguards which seem appropriate to a transaction which has the effect of making a will operative and which may be the only official reaction concerning its validity. “Informal probate”, it is hoped, will serve to keep the simple will which generates no controversy from becoming involved in truly judicial proceedings. The procedure is very much like “probate in common form” as it is known in England and some states.
SECTION 3-303. Informal Probate; Proof and Findings Required.

(a) In an informal proceeding for original probate of a will, the Registrar shall determine whether:

(1) the application is complete;

(2) the applicant has made oath or affirmation that the statements contained in the application are true to the best of his knowledge and belief;

(3) the applicant appears from the application to be an interested person as defined in Section 1-201(23);

(4) on the basis of the statements in the application, venue is proper;

(5) an original, duly executed and apparently unrevoked will is in the Registrar’s possession;

(6) any notice required by Section 3-204 has been given and that the application is not within Section 3-304; and

(7) it appears from the application that the time limit for original probate has not expired.

(b) The application shall be denied if it indicates that a personal representative has been appointed in another [county] of this state or except as provided in subsection (d) below, if it appears that this or another will of the decedent has been the subject of a previous probate order.

(c) A will which appears to have the required signatures and which contains an attestation clause showing that requirements of execution under Section 2-502, 2-503 or 2-506 have been met shall be probated without further proof. In other cases, the Registrar may assume execution if the will appears to have been properly executed, or he may accept a sworn statement or affidavit of any person having knowledge of the circumstances of execution, whether or not the person was a witness to the will.

(d) Informal probate of a will which has been previously probated elsewhere may be granted at any time upon written application by any interested person, together with deposit of an authenticated copy of the will and of the statement probating it from the office or court where it was first probated.

(e) A will from a place which does not provide for probate of a will after death and which is not eligible for probate under subsection (a) above, may be probated in this state upon receipt by the Registrar of a duly authenticated copy of the will and a duly authenticated certificate of its legal custodian that the copy filed is a true copy and that the will has become operative under the law of the other place.

Comment


The purpose of this section is to permit informal probate of a will which, from a simple attestation clause, appears to have been executed properly. It is not necessary that the will be notarized as is the case with “pre-proved” wills in some states. If a will is “pre-proved” as provided in Article II, it will, of course, “appear” to be well executed and include the recital necessary for easy probate here. If the instrument does not contain a proper recital by attesting witnesses, it may be probated informally on the strength of an affidavit by a person who can say what occurred at the time of execution.
Except where probate or its equivalent has occurred previously in another state, informal probate is available only where an original will exists and is available to be filed. Lost or destroyed wills must be established in formal proceedings. See Section 3-402. Under Section 3-401, pendency of formal testacy proceedings blocks informal probate or appointment proceedings.
SECTION 3-304. Informal Probate; Unavailable in Certain Cases. Applications for informal probate which relate to one or more of a known series of testamentary instruments (other than a will and one or more codicils thereto) the latest of which does not expressly revoke the earlier, shall be declined.

Comment


The Registrar handles the informal proceeding, but is required to decline applications in certain cases where circumstances suggest that formal probate would provide desirable safeguards.
SECTION 3-305. Informal Probate; Registrar Not Satisfied. If the Registrar is not satisfied that a will is entitled to be probated in informal proceedings because of failure to meet the requirements of Sections 3-303 and 3-304 or any other reason, he may decline the application. A declination of informal probate is not an adjudication and does not preclude formal probate proceedings.

Comment


The purpose of this section is to recognize that the Registrar should have some authority to deny probate to an instrument even though all stated statutory requirements may be said to have been met. Denial of an application for informal probate cannot be appealed. Rather, the proponent may initiate a formal proceeding so that the matter may be brought before the judge in the normal way for contested matters.
SECTION 3-306. Informal Probate; Notice Requirements.

[(a)]* The moving party must give notice as described by Section 1-401 of his application for informal probate to any person demanding it pursuant to Section 3-204, and to any personal representative of the decedent whose appointment has not been terminated. No other notice of informal probate is required.

[(b) If an informal probate is granted, within 30 days thereafter the applicant shall give written information of the probate to the heirs and devisees. The information shall include the name and address of the applicant, the name and location of the court granting the informal probate, and the date of the probate. The information shall be delivered or sent by ordinary mail to each of the heirs and devisees whose address is reasonably available to the applicant. No duty to give information is incurred if a personal representative is appointed who is required to give the written information required by Section 3-705. An applicant’s failure to give information as required by this section is a breach of his duty to the heirs and devisees but does not affect the validity of the probate.]

* This paragraph becomes subsection (a) if optional subsection (b) is accepted.

Comment
This provision assumes that there will be a single office within each county or other area of jurisdiction of the probate court which can be checked for demands for notice relating to estates in that area. If there are or may be several registrars within a given area, provision would need to be made so that information concerning demands for notice might be obtained from the chief registrar’s place of business.
In 1975, the Joint Editorial Board recommended the addition, as a bracketed, optional provision, of subsection (b). The recommendation was derived from a provision added to the Code in Idaho at the time of original enactment. The Board viewed the addition as interesting, possibly worthwhile, and worth being brought to the attention of enacting states as an optional addition. The Board views the informational notice required by Section 3-705 to be of more importance in preventing injustices under the Code, because the opening of an estate via appointment of a personal representative instantly gives the estate representative powers over estate assets that can be used wrongfully and to the possible detriment of interested persons. Hence, the Section 3-705 duty is a part of the recommended Code, rather than a bracketed, optional provision. By contrast, the informal probate of a will that is not accompanied or followed by appointment of a personal representative only serves to shift the burden of making the next move to disinterested heirs who, inter alia, may initiate a Section 3-401 formal testacy proceeding to contest the will at any time within the limitations prescribed by Section 3-108.
SECTION 3-307. Informal Appointment Proceedings; Delay in Order; Duty of Registrar; Effect of Appointment.

(a) Upon receipt of an application for informal appointment of a personal representative other than a special administrator as provided in Section 3-614, if at least 120 hours have elapsed since the decedent’s death, the Registrar, after making the findings required by Section 3-308, shall appoint the applicant subject to qualification and acceptance; provided, that if the decedent was a non-resident, the Registrar shall delay the order of appointment until 30 days have elapsed since death unless the personal representative appointed at the decedent’s domicile is the applicant, or unless the decedent’s will directs that his estate be subject to the laws of this state.

(b) The status of personal representative and the powers and duties pertaining to the office are fully established by informal appointment. An appointment, and the office of personal representative created thereby, is subject to termination as provided in Sections 3-608 through 3-612, but is not subject to retroactive vacation.

Comment


Section 3-703 describes the duty of a personal representative and the protection available to one who acts under letters issued in informal proceedings. The provision requiring a delay of 30 days from death before appointment of a personal representative for a non-resident decedent is new. It is designed to permit the first appointment to be at the decedent’s domicile. See Section 3-203.
SECTION 3-308. Informal Appointment Proceedings; Proof and Findings Required.

(a) In informal appointment proceedings, the Registrar must determine whether:

(1) the application for informal appointment of a personal representative is complete;

(2) the applicant has made oath or affirmation that the statements contained in the application are true to the best of his knowledge and belief;

(3) the applicant appears from the application to be an interested person as defined in Section 1-201(23);

(4) on the basis of the statements in the application, venue is proper;

(5) any will to which the requested appointment relates has been formally or informally probated; but this requirement does not apply to the appointment of a special administrator;

(6) any notice required by Section 3-204 has been given;

(7) from the statements in the application, the person whose appointment is sought has priority entitling him to the appointment.

(b) Unless Section 3-612 controls, the application must be denied if it indicates that a personal representative who has not filed a written statement of resignation as provided in Section 3-610(c) has been appointed in this or another [county] of this state, that (unless the applicant is the domiciliary personal representative or his nominee) the decedent was not domiciled in this state and that a personal representative whose appointment has not been terminated has been appointed by a court in the state of domicile, or that other requirements of this section have not been met.

Comment
Sections 3-614 and 3-615 make it clear that a special administrator may be appointed to conserve the estate during any period of delay in probate of a will. Even though the will has not been approved, Section 3-614 gives priority for appointment as special administrator to the person nominated by the will which has been offered for probate. Section 3-203 governs priorities for appointment. Under it, one or more of the same class may receive priority through agreement of the others.
The last sentence of the section is designed to prevent informal appointment of a personal representative in this state when a personal representative has been previously appointed at the decedent’s domicile. Sections 4-204 and 4-205 may make local appointment unnecessary. Appointment in formal proceedings is possible, however.
SECTION 3-309. Informal Appointment Proceedings; Registrar Not Satisfied. If the Registrar is not satisfied that a requested informal appointment of a personal representative should be made because of failure to meet the requirements of Sections 3-307 and 3-308, or for any other reason, he may decline the application. A declination of informal appointment is not an adjudication and does not preclude appointment in formal proceedings.

Comment


Authority to decline an application for appointment is conferred on the Registrar. Appointment of a personal representative confers broad powers over the assets of a decedent’s estate. The process of declining a requested appointment for unclassified reasons should be one which a registrar can use quickly and informally.
SECTION 3-310. Informal Appointment Proceedings; Notice Requirements. The moving party must give notice as described by Section 1-401 of his intention to seek an appointment informally: (i) to any person demanding it pursuant to Section 3-204; and (ii) to any person having a prior or equal right to appointment not waived in writing and filed with the court. No other notice of an informal appointment proceeding is required.

SECTION 3-311. Informal Appointment Unavailable in Certain Cases. If an application for informal appointment indicates the existence of a possible unrevoked testamentary instrument which may relate to property subject to the laws of this state, and which is not filed for probate in this court, the Registrar shall decline the application.



Subpart 2. Succession Without Administration
PREFATORY NOTE
This subpart to the Uniform Probate Code is an alternative to other methods of administering a decedent’s estate. The Uniform Probate Code otherwise provides procedures for informal administration, formal administration and supervised administration. This subpart adds another alternative to the system of flexible administration provided by the Uniform Probate Code and permits the heirs of an intestate or residuary devisees of a testator to accept the estate assets without administration by assuming responsibility for discharging those obligations that normally would be discharged by the personal representative.
The concept of succession without administration is drawn from the civil law and is a variation of the method which is followed largely on the Continent in Europe, in Louisiana and in Quebec.
This subpart contains cross-references to the procedures in the Uniform Probate Code and particularly implements the policies and concepts reflected in Sections 1-102, 3-101 and 3-901. These sections of the Uniform Probate Code provide in part:
SECTION 1-102. PURPOSES; RULE OF CONSTRUCTION.
(a) This Code shall be liberally construed and applied to promote its underlying purposes and policies.
(b) The underlying purposes and policies of this Code are:
(1) to simplify and clarify the law concerning the affairs of decedents, missing persons, protected persons, minors and incapacitated persons;
(2) to discover and make effective the intent of a decedent in the distribution of his property;
(3) to promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to his successors;
SECTION 3-101. DEVOLUTION OF ESTATE AT DEATH; RESTRICTIONS.
The power of a person to leave property by will, and the rights of creditors, devisees, and heirs to his property are subject to the restrictions and limitations contained in this Code to facilitate the prompt settlement of estates. Upon the death of a person, his real and personal property devolves to the persons to whom it is devised by his last will or to those indicated as substitutes for them in cases involving lapse, renunciation, or other circumstances affecting the devolution of testate estate, or in the absence of testamentary disposition, to his heirs, or to those indicated as substitutes for them in cases involving renunciation or other circumstances affecting devolution of intestate estates, subject to homestead allowance, exempt property and family allowance, to rights of creditors, elective share of the surviving spouse, and to administration.
SECTION 3-901. SUCCESSORS’ RIGHTS IF NO ADMINISTRATION.
In the absence of administration, the heirs and devisees are entitled to the estate in accordance with the terms of a probated will or the laws of intestate succession. Devisees may establish title by the probated will to devised property. Persons entitled to property by homestead allowance, exemption or intestacy may establish title thereto by proof of the decedent’s ownership, his death, and their relationship to the decedent. Successors take subject to all charges incident to administration, including the claims of creditors and allowances of surviving spouse and dependent children, and subject to the rights of others resulting from abatement, retainer, advancement, and ademption.
SECTION 3-312. Universal Succession; In General. The heirs of an intestate or the residuary devisees under a will, excluding minors and incapacitated, protected, or unascertained persons, may become universal successors to the decedent’s estate by assuming personal liability for (i) taxes, (ii) debts of the decedent, (iii) claims against the decedent or the estate, and (iv) distributions due other heirs, devisees, and persons entitled to property of the decedent as provided in Sections 3-313 through 3-322.

Comment


This section states the general policy of the subpart to permit heirs or residuary legatees to take possession, control and title to a decedent’s estate by assuming a personal obligation to pay taxes, debts, claims and distributions due to others entitled to share in the decedent’s property by qualifying under the statute. Although the surviving spouse most often will be an heir or residuary devisee, he or she may also be a person otherwise entitled to property of the decedent as when a forced share is claimed.
This subpart does not contemplate that assignees of heirs or residuary devisees will have standing to apply for universal succession since this involves undertaking responsibility for obligations of the decedent. Of course, after the statement of universal succession has been issued, persons may assign their beneficial interests as any other asset.
The subpart excludes incapacitated and unascertained persons as universal successors because of the need for successors to deal with the property for various purposes. The procedure permits competent heirs and residuary devisees to proceed even where there are some others incompetent or unascertained. If any unascertained or incompetent heir or devisee wishes, they may require bonding or if unprotected they may force the estate into administration. Subsequent sections permit the conservator, guardian ad litem or other fiduciary of unascertained or incompetent heirs or devisees to object. The universal successors’ obligations may be enforced by appropriate remedy. In Louisiana the procedure is available even though there are incompetent heirs for whom a tutor or guardian is appointed to act.
In restricting universal succession to competent heirs and residuary legatees, the subpart makes them responsible to incompetent heirs and legatees. This restriction is deemed appropriate to avoid the problems in dealing with the estate assets vested in an incompetent. This is a variation from the Louisiana practice. The procedure also contemplates that all competent heirs and residuary devisees join and does not permit only part of the heirs to petition for succession without administration. This position means that succession without administration is essentially a consent procedure available when family members are in agreement.
This subpart contemplates that known competent successors may proceed under it. Although all competent heirs are required to join in the informal process, the possibility of an unknown heir is not treated as jurisdictional. An unknown heir who appeared would be able to establish his or her rights as in administration unless barred by adjudication, estoppel or lapse of time.
SECTION 3-313. Universal Succession; Application; Contents.

(a) An application to become universal successors by the heirs of an intestate or the residuary devisees under a will must be directed to the Registrar, signed by each applicant, and verified to be accurate and complete to the best of the applicant’s knowledge and belief as follows:

(1) An application by heirs of an intestate must contain the statements required by Section 3-301(a)(1) and (4)(A) and state that the applicants constitute all the heirs other than minors and incapacitated, protected, or unascertained persons.

(2) An application by residuary devisees under a will must be combined with a petition for informal probate if the will has not been admitted to probate in this state and must contain the statements required by Section 3-301(a)(1) and (2). If the will has been probated in this state, an application by residuary devisees must contain the statements required by Section 3-301(a)(2)(C). An application by residuary devisees must state that the applicants constitute the residuary devisees of the decedent other than any minors and incapacitated, protected, or unascertained persons. If the estate is partially intestate, all of the heirs other than minors and incapacitated, protected, or unascertained persons must join as applicants.

(b) The application must state whether letters of administration are outstanding, whether a petition for appointment of a personal representative of the decedent is pending in any court of this state, and that the applicants waive their right to seek appointment of a personal representative.

(c) The application may describe in general terms the assets of the estate and must state that the applicants accept responsibility for the estate and assume personal liability for (i) taxes,(ii) debts of the decedent, (iii) claims against the decedent or the estate and (iv) distributions due other heirs, devisees, and persons entitled to property of the decedent as provided in Sections 3-316 through 3-322.

Comment
This section spells out in detail the form and requirements for application to the Registrar to become universal successors. The section requires the applicants to inform the Registrar whether the appointment of a personal representative has occurred or is pending in order to assure any administration is terminated before the application can be granted. The section requires applicants to waive their right to seek the appointment of a personal representative. The appointment of an executor would preclude or postpone universal succession by application for appointment unless the executor’s appointment is avoided because of lack of interest in the estate. See Sections 3-611, 3-912.
The statements in the application are verified by signing and filing and deemed to be under oath as provided in Section 1-310. Like other informal proceedings under the UPC, false statements constitute fraud (UPC Section 1-106).
Even though the presence of residuary devisees would seem to preclude partial intestacy (UPC Sections 2-605, 2-606), the last sentence of Section 3-313(a) regarding partial intestacy warns all parties that if there is a partial intestacy, the heirs must join. It avoids problems of determining whether the residuary takers are in all instances true residuary legatees, e.g., if a testator provides: “Lastly, I give 1/2 and only 1/2 of the rest of my estate to A.” (cf. UPC Section 2-603).
Section 3-313(c) provides that a general description of the assets may be included appropriate to the assets in the estate and adequate to inform the parties and the Registrar of the nature of the estate involved.
In the event an heir or residuary devisee were to disclaim prior to acceptance of the succession, those who would take in place of the disclaimant would be the successors who could apply to become universal successors. The disclaimant could not become a universal successor as to the disclaimed interest and would not be subject to liability as a universal successor.
Trustees of testamentary trusts have standing as devisees. If the trustee is a pecuniary devisee or a specific devisee other than a residuary devisee, he would administer the trust upon receipt of the assets from the universal successors and as a devisee could enforce distribution from the universal successors.
The trustee who is a residuary legatee has standing to qualify as a universal successor by acceptance of the decedent’s assets, then to discharge the obligations of the universal successor, and finally to administer the residue under the trust without appointment of a personal representative. The will would be probated in any event. The residuary trustee could choose to insist on appointment of a personal representative and not seek universal succession. Neither alternative could alter the provisions of the residuary trust.
SECTION 3-314. Universal Succession; Proof and Findings Required.

(a) The Registrar shall grant the application if:

(1) the application is complete in accordance with Section 3-313;

(2) all necessary persons have joined and have verified that the statements contained therein are true, to the best knowledge and belief of each;

(3) venue is proper;

(4) any notice required by Section 3-204 has been given or waived;

(5) the time limit for original probate or appointment proceedings has not expired and the applicants claim under a will;

(6) the application requests informal probate of a will, the application and findings conform with Sections 3-301(a)(2) and 3-303(a), (c), (d), and (e) so the will is admitted to probate; and

(7) none of the applicants is a minor or an incapacitated or protected person.

(b) The Registrar shall deny the application if letters of administration are outstanding.

(c) Except as provided in Section 3-322, the Registrar shall deny the application if any creditor, heir, or devisee who is qualified by Section 3-605 to demand bond files an objection.

Comment


This section outlines the substantive requirements for universal succession and is the guideline to the Registrar for approval of the application. As in UPC Section 3-303, review of the filed documents is all that is required, with the Registrar expected to determine whether to approve on the basis of information available to the Registrar. There is very little discretion in the Registrar except that if something appears lacking in the application, the Registrar would be able to request additional information. The analogy to UPC Section 3-303 is rather direct and the authority of the Registrar is somewhat more limited because there is no parallel section to UPC Section 3-305 as there is in probate. (See also UPC Section 3-309.)
Section 3-314(a)(5) requires that the application for universal succession under a will be made before the time limit for original probate has expired. Against the background of UPC Section 3-108 which limits administration proceedings after three years except for proof of heirship or will construction, the heirs could take possession of property and prove their title without the universal succession provisions.
The review of the application by the Registrar essentially is a clerical matter to determine if the application exhibits the appropriate circumstance for succession without administration. Hence, if there are letters of administration outstanding, the application must be denied under Section 3-314(b). Even though a disinterested executor under a will should not be able to preclude those interested in the estate from settling the estate without administration, coordination of the Registrar’s action with the process of the probate court is imperative to protect the parties and the public. Consequently, any outstanding letters must be terminated before succession without administration is approved. Under the Uniform Probate Code, those with property interests in the estate are viewed as “interested persons” (UPC Section 1-201(23)) and may initiate either informal (UPC Section 3-105) or formal proceedings (UPC Section 3-401); also the agreement of those interested in the estate is binding on the personal representative (UPC Sections 3-912, 3-1101). These provisions appear adequate to preclude the personal representative who has no other interest in the estate from frustrating those interested from utilizing succession without administration.
There is need for coordination with other process within the probate court when a petition for letters is pending (i.e., not withdrawn) as when letters were outstanding. The appropriateness of the appointment of the personal representative, i.e., whether administration was necessary, could be determined on an objection to the appointment under UPC Section 3-414(b); cf., Sections 3-608 to 3-612. If the appointment of a personal representative is denied, then the application for universal succession without administration could be approved in appropriate cases.
Section 3-314 does not require prior notice unless requested under UPC Section 3-204. Information to other heirs and devisees is provided after approval of the application. See Section 3-319.
If, after universal succession is approved, a creditor or devisee were not paid or secured, in addition to suing the successor directly, the creditor or devisee could move for appointment of a personal representative to administer the estate properly. This pressure on the universal successors to perform seems desirable. In view of the availability of informal administration and other flexible alternatives under the UPC, if any person properly moves for appointment of a personal representative, succession without administration should be foreclosed or terminated.
SECTION 3-315. Universal Succession; Duty of Registrar; Effect of Statement of Universal Succession. Upon receipt of an application under Section 3-313, if at least 120 hours have elapsed since the decedent’s death, the Registrar, upon granting the application, shall issue a written statement of universal succession describing the estate as set forth in the application and stating that the applicants (i) are the universal successors to the assets of the estate as provided in Section 3-312, (ii) have assumed liability for the obligations of the decedent, and (iii) have acquired the powers and liabilities of universal successors. The statement of universal succession is evidence of the universal successors’ title to the assets of the estate. Upon its issuance, the powers and liabilities of universal successors provided in Sections 3-316 through 3-322 attach and are assumed by the applicants.

Comment


This section provides for a written statement issued by the Registrar evidencing the right and power of the universal successors to deal with the property of the decedent and serves as an instrument of distribution to them. Although the application for universal succession may be filed anytime after death, within the time limit for original probate, the Registrar may not act before 120 hours have elapsed since the testator’s death. This period parallels provisions for other informal proceedings under the UPC, e.g., Sections 2-601, 3-302, 3-307.
SECTION 3-316. Universal Succession; Universal Successors’ Powers. Upon the [Registrar’s] issuance of a statement of universal succession:

(1) Universal successors have full power of ownership to deal with the assets of the estate subject to the limitations and liabilities in this [subpart]. The universal successors shall proceed expeditiously to settle and distribute the estate without adjudication but if necessary may invoke the jurisdiction of the court to resolve questions concerning the estate.

(2) Universal successors have the same powers as distributees from a personal representative under Sections 3-908 and 3-909 and third persons with whom they deal are protected as provided in Section 3-910.

(3) For purposes of collecting assets in another state whose law does not provide for universal succession, universal successors have the same standing and power as personal representatives or distributees in this state.

Comment
This section is the substantive provision (1) declaring the successors to be distributees and (2) to have the powers of owners so far as dealing with the estate assets subject to the obligations to others.
Details concerning the status of distributees under UPC Section 3-908 and the power to deal with property are provided in UPC Section 3-910.
Although one state cannot control the law of another, the universal successor should be recognized in other states as having the standing of either a foreign personal representative or a distributee of the claim to local assets. Paragraph (3) attempts to remove any limitation of this state in such a case.
SECTION 3-317. Universal Succession; Universal Successors’ Liability to Creditors, Other Heirs, Devisees and Persons Entitled to Decedent’s Property; Liability of Other Persons Entitled to Property.

(a) In the proportions and subject to the limits expressed in Section 3-321, universal successors assume all liabilities of the decedent that were not discharged by reason of death and liability for all taxes, claims against the decedent or the estate, and charges properly incurred after death for the preservation of the estate, to the extent those items, if duly presented, would be valid claims against the decedent’s estate.

(b) In the proportions and subject to the limits expressed in Section 3-321, universal successors are personally liable to other heirs, devisees, and persons entitled to property of the decedent for the assets or amounts that would be due those heirs, were the estate administered, but no allowance having priority over devisees may be claimed for attorney’s fees or charges for preservation of the estate in excess of reasonable amounts properly incurred.

(c) Universal successors are entitled to their interests in the estate as heirs or devisees subject to priority and abatement pursuant to Section 3-902 and to agreement pursuant to Section 3-912.

(d) Other heirs, devisees, and persons to whom assets have been distributed have the same powers and liabilities as distributees under Sections 3-908, 3-909, and 3-910.

(e) Absent breach of fiduciary obligations or express undertaking, a fiduciary’s liability is limited to the assets received by the fiduciary.

Comment
The purpose of succession without administration is not to alter the relative property interests of the parties but only to facilitate the family’s expeditious settlement of the estate. Consistent with this, the liability arising from the assumption of obligations is stated explicitly here to assist in understanding the coupling of power and liability. Subsection (b) includes an abatement reference that recognizes the possible adjustment that may be necessary by reason of excess claims under UPC Section 3-902.
In succession without administration, there being no personal representative’s notice to creditors, the short non-claim period under UPC Section 3-803(a)(1) does not apply and creditors are subject to the statutes of limitations and the limitation of three years on decedent’s creditors when no notice is published under UPC Section 3-803(a)(2). The general statutes of limitation are suspended for four months following the decedent’s death but resume thereafter under UPC Section 3-802. The assumption of liability by the universal successors upon the issuance of the Statement of Universal Succession is deemed to be by operation of law and does not operate to extend or renew any statute of limitations that had begun to run against the decedent. The result is that creditors are barred by the general statutes of limitation or 3 years whichever is the shorter.
The obligation of the universal successors to other heirs, devisees and distributees is based on the promise to perform in return for the direct distribution of property and any limitation or laches begins to run on issuance of the statement of universal succession unless otherwise extended by action or assurance of the universal successor.
It should be noted that this statute does not deal with the consequences or obligations that arise under either federal or state tax laws. The universal successors will be subject to obligations for the return and payment of both income and estate taxes in many situations depending upon the tax law and the circumstances of the decedent and the estate. These tax consequences should be determined before electing to utilize succession without administration.
SECTION 3-318. Universal Succession; Universal Successors’ Submission to Jurisdiction; When Heirs or Devisees May Not Seek Administration.

(a) Upon issuance of the statement of universal succession, the universal successors become subject to the personal jurisdiction of the courts of this state in any proceeding that may be instituted relating to the estate or to any liability assumed by them.

(b) Any heir or devisee who voluntarily joins in an application under Section 3-313 may not subsequently seek appointment of a personal representative.

Comment


This section imposes jurisdiction over the universal successors and bars them from seeking appointment as personal representative.
SECTION 3-319. Universal Succession; Duty of Universal Successors; Information to Heirs and Devisees. Not later than 30 days after issuance of the statement of universal succession, each universal successor shall inform the heirs and devisees who did not join in the application of the succession without administration. The information must be delivered or be sent by ordinary mail to each of the heirs and devisees whose address is reasonably available to the universal successors. The information must include the names and addresses of the universal successors, indicate that it is being sent to persons who have or may have some interest in the estate, and describe the court where the application and statement of universal succession has been filed. The failure of a universal successor to give this information is a breach of duty to the persons concerned but does not affect the validity of the approval of succession without administration or the powers or liabilities of the universal successors. A universal successor may inform other persons of the succession without administration by delivery or by ordinary first class mail.

Comment


The problem of residuary legatees or some of the heirs moving for universal succession without the knowledge of others interested in the estate is similar to that of informal administration. By this provision those devisees and heirs who do not participate in the application are informed of the application and its approval and may move to protect any interest that they perceive. The provision parallels UPC Section 3-705.
SECTION 3-320. Universal Succession; Universal Successors’ Liability For Restitution to Estate. If a personal representative is subsequently appointed, universal successors are personally liable for restitution of any property of the estate to which they are not entitled as heirs or devisees of the decedent and their liability is the same as a distributee under Section 3-909, subject to the provisions of Sections 3-317 and 3-321 and the limitations of Section 3-1006.

Comment


The liability of universal successors for restitution in the event a personal representative is appointed is spelled out in this section and keyed to the parallel sections in the UPC.
SECTION 3-321. Universal Succession; Liability of Universal Successors for Claims, Expenses, Intestate Shares and Devises. The liability of universal successors is subject to any defenses that would have been available to the decedent. Other than liability arising from fraud, conversion, or other wrongful conduct of a universal successor, the personal liability of each universal successor to any creditor, claimant, other heir, devisee, or person entitled to decedent’s property may not exceed the proportion of the claim that the universal successor’s share bears to the share of all heirs and residuary devisees.

Comment


This is the primary provision for the successor’s liability to creditors and others. The theory is that the universal successors as a group are liable in full to the creditors but that none have a greater liability than in proportion to the share of the estate received. Under the UPC, since informal administration is available with limited liability for the personal representative, the analogy to the Louisiana system would be to accept full responsibility for debts and claims if succession without administration is desired but to choose informal administration if protection of the inventory is desired.
This definition of liability assumes, first, that the devisees and heirs are subject to the usual priorities for creditors and devisees and abatement for them in Sections 3-316 and 3-317. Second, it is assumed that if a creditor or a subsequently appointed personal representative were to proceed against the successors, having jurisdiction by submission, Section 3-318, the liability would be on a theory of contribution by the successors with the burden on each universal successor to prove his or her own share of the estate and liability against that share.
Third, it is also assumed that, a creditor who is unprotected or unsecured under Section 3-322, can object to universal succession under Section 3-314(c) and if the creditor does not object, payments by the successors, like those by the decedent when alive, will be recognized as good without any theory of preferring creditors. Thus, until a creditor takes action to require administration; that creditor should be bound by the successors’ non-fraudulent prior payment to other creditors. If a creditor suspects insolvency, he can put the estate into administration and after the appointment of a personal representative would have the usual priority as to remaining assets. This would be subject to the theory of fraud, i.e., a knowing and conscious design on the part of the successors to ignore the priority of the decedent’s creditors to the harm of a creditor. This would constitute fraud that would defeat the limits on successor’s liability otherwise available under the statute.
SECTION 3-322. Universal Succession; Remedies of Creditors, Other Heirs, Devisees or Persons Entitled to Decedent’s Property. In addition to remedies otherwise provided by law, any creditor, heir, devisee, or person entitled to decedent’s property qualified under Section 3-605, may demand bond of universal successors. If the demand for bond precedes the granting of an application for universal succession, it must be treated as an objection under Section 3-314(c) unless it is withdrawn, the claim satisfied, or the applicants post bond in an amount sufficient to protect the demandant. If the demand for bond follows the granting of an application for universal succession, the universal successors, within 10 days after notice of the demand, upon satisfying the claim or posting bond sufficient to protect the demandant, may disqualify the demandant from seeking administration of the estate.

Comment


This section provides necessary protection to creditors and other heirs, devisees or persons entitled to distribution. Any person to whom a universal successor is obligated could pursue any available remedy, e.g., a proceeding to collect a debt or to secure specific performance. By this section, any creditor or other heir, devisee or person entitled to distribution may also demand protection and, if it is not forthcoming, put the estate into administration. This seems adequate to coerce performance from universal successors while assuring creditors their historical preference and other beneficiaries of the estate their rights.


Download 3.59 Mb.

Share with your friends:
1   ...   19   20   21   22   23   24   25   26   ...   48



The database is protected by copyright ©ininet.org 2024
send message
    Main page
effective date
national conference
exclusive jurisdiction
application thereof