Five Juicy questions where the heck does property go upon death of decedent?

rust.tippett@gmail.com

1. Five JUICY Questions

WHere THE HECK does propERTY Go upon death of decedent?

1. Was the property of decedent held in Joint Tenancy with right of survivorship?

   1. YES  property goes to surviving joint tenant through right of survivorship – NO PROBATE

   2. NO  continue analysis

2. Was there a Beneficiary Designation attached to the property?

   1. YES  property goes to designated beneficiary as a contractual matter (clause w/in K)– NO PROBATE

      1. Examples = Retirement Plan, Life Insurance Policy, Payable on Death account (bank account or brokerage firm account that has a BFY designation), Transfer on Death Deeds (some states—deed says “on my death, deed shall be transferred to X”) Think of it as Third Party K Matter (open account/plan- separate line>fill in BFY desig.)

   2. NO  continue analysis

3. Was the property held in a Revocable Trust?

   1. YES  property held in revocable trust is distributed according to terms of revocable trust – NO PROBATE

      1. Revocable Trust (aka Living Trust) = will substitute containing dispositive provisions of estate that can be revoked/altered during lifetime of Settlor

   2. NO  continue analysis

4. Did decedent die with a Will?

   1. YES  property distributed according to terms of will after probate – PROBATE REQUIRED

   2. NO  decedent died fully or partially intestate

   3. What does will do?

      1. Says who get’s what of T’s property:

         1. Specific gift – specifically identified property to specific people

         2. Pecuniary/General gift: monetary gift to someone

         3. Residuary gift – what’s left over

      2. Names one or more Personal Representative – Fiduciary/ executor of estate > his job to martial estate assets (identify assets, put assets in his name as executor, inventory assets, pay D’s creditors w/assets, evidence to beneficiaries, property in estate is managed, (income and state) tax returns for assets)

         1. Administrator CTA (with will attached) – not executor cause not named in will

      3. Administration provisions: what powers executor does/doesn’t have

      4. Names guardian of decedent’s children

      5. Sometimes creates testamentary trust (terms of trust: frequency of distributions, duration, appointed trustee- contained in will)

   4. Codicil = amendment to a will (re-dedicates the will)

5. Did decedent die Intestate? – property distributed under state Rules of Intestacy after probate – PROBATE REQUIRED

   1. Intestacy occurs when

      1. No estate planning occurred – full intestacy

      2. Will does not dispose of everything (e.g., contains no residuary clause) – partial intestacy

      3. Will declared invalid

         1. Not executed properly

         2. Testator lacked testamentary capacity

         3. Exercise of undue influence

         4. Excessive debt and creditor demands

         5. Someone brought will contest

   2. BFYs are HEIRS not devisees

6. Examples