Estate Planning and Probate

Estate Planning and Probate on the CP Exam

Estate Planning and Probate accounts for 7% of the CP exam. This content area covers wills, trusts, intestate succession, the probate process, and advance directives. Paralegals in estate planning practice draft documents, file probate petitions, and help administer estates.

Wills

• Requirements for a valid will: Testamentary capacity (legal age, sound mind), testamentary intent, writing (in most states), signature, and witnesses (typically two disinterested witnesses).
• Types of wills: Attested (formal), holographic (handwritten, no witnesses required in states that recognize them), nuncupative (oral, very limited circumstances).
• Revocation: By physical act (burning, tearing), by subsequent will or codicil, by operation of law (divorce may revoke provisions for ex-spouse).
• Will contests: Grounds include lack of capacity, undue influence, fraud, duress, and improper execution.
• Codicils: Amendments to an existing will. Must be executed with the same formalities as the original will.

Trusts

• Elements: Settlor (creator), trustee (manager), beneficiary, trust property (corpus/res), and trust purpose.
• Revocable (living) trusts: Settlor retains the power to modify or revoke. Avoids probate. No tax benefit during settlor's lifetime.
• Irrevocable trusts: Cannot be modified or revoked without beneficiary consent. Removes assets from the settlor's taxable estate.
• Trustee duties: Duty of loyalty, duty of care (prudent investor standard), duty to account, duty of impartiality among beneficiaries.

Intestate Succession

When a person dies without a valid will, state intestacy laws govern distribution. The typical order of inheritance follows the surviving spouse and descendants, then parents, siblings, and more remote relatives. The Uniform Probate Code provides a model framework that many states follow.

Probate Process

• Filing: Petition for probate filed in the appropriate court, usually where the decedent was domiciled.
• Personal representative: Appointed by the court to administer the estate (executor if named in will, administrator if not).
• Notice to creditors: Publication and direct notice to known creditors. Creditors have a limited period to file claims.
• Inventory and appraisal: Identification and valuation of estate assets.
• Distribution: Payment of debts, taxes, and expenses followed by distribution to beneficiaries according to the will or intestacy law.

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