Terms:

Decree of final distribution:
A final judgment issued by the probate court that is conclusive as to the rights of the legatees, devisees and heirs (all beneficiaries) and details their respective shares under the will or intestate estate.

Collateral attack:
An attempt to avoid, defeat or evade a judgment by subsequently trying to reopen the matter in another court.

Legacy:
A distribution of personalty (personal property) by will. A bequest.

Legatee:
A person to whom a legacy in a will is given.

Summary proceeding:
Any proceeding by which a case is disposed of in a prompt and simple manner.

Affidavit:
A written declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the person making it.

Upon final settlement of the estate, the court gives a decree of final distribution, which details the persons entitled to share in the estate and their respective shares under the will. For those decedents who died intestate, the decree determines the descent and distribution in an intestate estate. The decree is a final judgment and conclusive as to the rights of the legatees, devisees and heirs, subject only to the right of appeal or relief for fraud.

Since the decree is final and conclusive, the doctrine of is res judicata applies both as to persons who take from the estate and their respective shares of the estate. As such, a disgruntled heir has no right to seek jurisdiction in another court in an attempt to obtain a more favorable result. This is known as a collateral attack. Once that person has had the opportunity to be heard on the facts, the case is over.

A typical manner of distribution is:

• specific legacies—delivery of the property to the legatee;
  
• monetary legacies—payment of cash to the legatee;
  
• residuary legacies and intestate distributions—the personal representative can either convert property to cash or make a distribution in kind, in whole or in part.

Example: Curtis died intestate two months ago. He was single and did not have any children. In addition, both his parents were deceased. His closest living survivor was his sister, Monique. She was too distraught over her brother’s untimely death to be the executor, although she was the most obvious choice. Instead, the court approved appointing her husband, Stanley as the personal representative. After winding up Curtis’s affairs, Stanley received a decree of final distribution that passed the remaining assets to his wife, Monique, as the closest living survivor, pursuant to the intestacy statutes. Rather than convert the assets to cash, he just distributed them as is to Monique.

Informal Administration

Not all estates require such formal procedures to wind up the decedent’s estate.

For smaller estates, the assets can be distributed to heirs with a minimum of court supervision, and much less time and expense.

Many states have statutes which provide a summary proceeding for releasing the small estate from formal administration. Such statutes usually are based on the estate’s having total assets less than a statutory maximum. See, e.g., D.C. Code § 20-351—$40,000; Fla. Prob. Code § 735.201—$75,000; N.Y. Surr. Ct. Proc. Act § 1301—$20,000; Tex. Prob. Code § 137—$50,000.

The streamlined procedure might require that the surviving heirs submit an affidavit stating the estate is less than the statutory maximum, and that they will pay any outstanding obligations and are entitled to the balance of the estate, including any money owed to the decedent. In these cases, no personal representative is appointed. See, e.g., Heinz v. Vawter, 266 N.W. 486 (Iowa 1936).

Example: Heather died two weeks ago and is survived by her husband Lee and four adult children. Heather and Lee were tenants in their Forest Hills apartment for most of their marriage. The main assets they owned were joint checking and savings accounts (which passed to Lee by right of survivorship) and a life insurance policy that named Lee as the beneficiary. In addition, there were household furnishings and other limited personal effects. Here, given the limited size of Heather’s estate and the fact that most of the assets passed to Lee outside the will, there is no need for a formal administration of Heather’s estate to just distribute the household furnishings and personal effects.

The next three chapters will cover trusts and how they fit into the decedent’s estate plan.