NALA Estate Planning and Probate 2 — Questions and Answers
Question 1: A testator executes a holographic will entirely in their own handwriting but later types and signs a codicil. In most states, the codicil:
- Invalidates the holographic will entirely
- Must also be holographic to be valid
- Can be valid as a formal attested codicil if properly witnessed (Correct answer)
- Automatically revokes all prior testamentary instruments
Correct answer: Can be valid as a formal attested codicil if properly witnessed
A typed codicil to a holographic will can be valid as a formally attested codicil if it meets the jurisdiction's witness requirements.
Question 2: Under the Uniform Probate Code, an interested person who receives proper notice of a probate proceeding but fails to object within the statutory period is said to be:
- Estopped from any future claims
- Subject to a default judgment
- Bound by the formal adjudication under the in rem principle (Correct answer)
- Required to file a separate action in equity
Correct answer: Bound by the formal adjudication under the in rem principle
Under the UPC, formal testacy orders are in rem and bind all interested parties who received proper notice, even those who did not appear.
Question 3: A 'pour-over will' is best described as a will that:
- Distributes assets directly to named charities
- Transfers probate assets into an existing revocable living trust at death (Correct answer)
- Creates a testamentary trust within the will itself
- Allows the executor to pour estate funds into a business partnership
Correct answer: Transfers probate assets into an existing revocable living trust at death
A pour-over will directs that probate assets be transferred into the testator's pre-existing revocable living trust upon death.
Question 4: Which of the following best describes the duty of 'impartiality' owed by a trustee?
- Treating all trust assets equally regardless of type
- Balancing the competing interests of current income beneficiaries and remainder beneficiaries (Correct answer)
- Distributing income to all beneficiaries in equal shares
- Avoiding conflicts of interest with third-party vendors
Correct answer: Balancing the competing interests of current income beneficiaries and remainder beneficiaries
The duty of impartiality requires the trustee to act fairly toward all beneficiaries, balancing the interests of income beneficiaries against those of remainder beneficiaries.
Question 5: An estate's personal representative discovers that the decedent's only asset is a joint tenancy bank account with a right of survivorship. The representative should:
- Include the account in the probate inventory
- Petition the court to sever the joint tenancy retroactively
- Recognize the account passes outside of probate to the surviving joint tenant (Correct answer)
- Liquidate the account and distribute proceeds per the will
Correct answer: Recognize the account passes outside of probate to the surviving joint tenant
Joint tenancy with right of survivorship is a non-probate transfer; the asset passes automatically to the surviving tenant outside of the probate estate.
Question 6: A specific bequest in a will states 'my 2020 Ford Mustang to my nephew.' Before the testator's death, the car is totaled and the insurance company pays $25,000. Under the doctrine of ademption by extinction, the nephew:
- Receives the $25,000 insurance proceeds under most modern statutes (Correct answer)
- Receives nothing because the specific property no longer exists
- Receives a comparable vehicle purchased from the estate
- Receives the $25,000 only if the will was executed after the accident
Correct answer: Receives the $25,000 insurance proceeds under most modern statutes
Under modern UPC-influenced statutes, a specific legatee is entitled to insurance proceeds or other amounts paid as a result of the loss of specifically bequeathed property.
Question 7: When a legal assistant prepares an inventory for a probate estate, which valuation date is typically used for estate assets?
- Date the will was executed
- Date of the decedent's death (Correct answer)
- Date the letters testamentary were issued
- Date the inventory is filed with the court
Correct answer: Date of the decedent's death
Probate estate assets are generally valued as of the date of the decedent's death for inventory purposes.
NALA Estate Planning and Probate 2
A testator executes a holographic will entirely in their own handwriting but later types and signs a codicil.
In most states, the codicil: