4.04.25 Decedent's Estates

Does your state use terminology different from that provided in 4:04.1 of the Underwriting Manual? If so, please identify and define such terms. Provide statutory citations.

Yes. Since adoption of the Uniform Probate Code on January 1, 1981 (see D.C. Code 20-109) the District ceased using the following terms: administrator/ix, administrator/ix CTA, administrator/ix DBA, executor/ix, letters testamentary and devisees.

The term "personal representative" replace the terms administrator/ix, administrator/ix DBNCTA and executor/ix.

The term "unsupervised personal representative" [see D.C. Code 20-101(v) and 20-406] is a relatively new term which describes a personal representative who is not subject to continued supervision. An unsupervised personal representative may only be appointed for decedents dying after July 1, 1995.

Personal representative is a key term in the administration of the estate of decedents dying after January 1, 1981. Title to the real property of such decedents does not devolve directly to heirs and devisees but rather vests in the personal representative, once qualified (see D.C. Code 20-105). The powers of the personal representative as stated in D.C. Code 20-741 do not include the power to sell real property--such powers must be conferred by will and must be ratified by the Probate Division of the Superior Court for the District of Columbia (the "Court"). The personal representative must file a petition to which is appended the consent of all interested persons. In cases where the Court approves unsupervised administration, the unsupervised personal representative may sell real property without petition to or ratification by the Court.

The District still uses the term "special administrator" to describe a person or entity appointed by the Court upon the petition of an interested party or creditor of the decedent to protect and conserve the property of the estate prior to the appointment of a personal representative or unsupervised personal representative (see D.C. Code 20-531 et seq.).

The term "interested person" has replaced the terms legatee, devisee and heir , and includes remaindermen named in Will (see D.C. Code 20-101).

While the term "curtesy" was abolished in 1957, the right of dower is very much alive in D.C. (see D.C. Code 19-102). The inchoate estate recognized there is a life estate in an undivided one-third interest in the lands of a spouse dying after March 15, 1962.

Is there a statutory time limit for (a) probating a decedent's will, or (b) opening administration of an Intestate's estate? If so, specify for both situations. Provide statutory citations.

No. (see D.C. Code 20-322)

Does the disposition of property under the laws of intestacy depend upon any of the following classifications of property or rights in property: Community, separate, tenancy by the entirety, dower, curtesy, etc.? If so, summarize. Provide statutory citations.

Tenancy by the entireties is recognized (see D.C. Code 45-216). Title held by married persons in this tenancy passes to a surviving spouse absolutely without administration and free of local inheritance taxes. Dower (see above) exists and the accepted practice is to obtain an affidavit of marital status in all transactions in which title is taken from individuals. D.C. Code says that dower is subordinate to the lien of purchase money mortgages but the statute which provides priority for such mortgages over judgments against borrowers (D.C. Code 15-104) has been interpreted to cover only deferred purchase money liens held by sellers and not loans made by institutional lenders. Therefore, it is accepted practice to join spouses (even estranged spouses) in all Deeds, Deeds of Trust, Mortgages and instruments in the nature of Deeds, Deeds of Trust and Mortgages. Joint tenancies created prior to the marriage of a joint tenant is a bar to dower (see D.C. Code 19-105).

Does your state recognize joint tenancies? If so, describe the procedure necessary to pass title held in joint tenancy upon the death of a joint tenant. Provide statutory citations.

Yes. If joint tenancy is properly created (i.e., in granting clause of Deed) title passes to a surviving joint tenant without administration and in the case of decedents dying after 1987, free of local inheritance taxes.

Does your state provide for any special benefits to a surviving spouse or family that allow them to take property contrary to will provisions? Provide statutory citations.

Yes. Dower rights in real property usually vest but may be barred if the surviving spouse is provided for in Will or receives his/her statutory share in an intestacy. However, D.C. Code 19-113 provides that a surviving spouse has six (6) months following probate within which to renounce such share and elect a re-vesting of dower rights. If no provision is made for a surviving spouse in the Will and, assuming his/her rights have not been limited by the terms of an antenuptial or postnuptial agreement, such spouse may also elect (in addition to any dower rights in real property) to take the share to which he or she would have been entitled had the decedent died intestateup to one-half of the net estate [see D.C. Code 19-113(d) or (e)]. There is a family allowance of $10,000 for surviving spouse or surviving minor children which must come of the personal estate (see D.C. Code 19-101). D.C. permits parents to disinherit their children.

Summarize the steps required for a testate administration. Provide statutory citations.

There are three (3) types of probate proceedings: standard, abbreviated and small estate. Standard and abbreviated proceedings may be either supervised or unsupervised.

Standard probate proceedings are commenced by the personal representative in the Court by filing the Will (if any), petition for probate, list of interested persons and an information report disclosing gifts made in contemplation of death and non-probate assets such as jointly held property and that in which the decedent had a life estate with or without inter vivos powers. If desired, the petition for probate for a decedent dying after July 1, 1995 may be accompanied by a prayer for unsupervised administration. Such a prayer must be signed by all interested persons.

Notice of the filing of the petition is published and a copy mailed to all interested persons. Within 20 days after the Will is probated, letters issued and bond fixed and filed, a notice to creditors is published affording them six (6) months to file a claim with the Court. An inventory of all real and personal property must be filed within three (3) months after probate and, except in the case of unsupervised administration, an initial account is due to the Court within one year and a day after probate. Distribution of unsold real property usually follows approval of the account. In unsupervised administration the unsupervised personal representative accounts directly to the interested persons and files a certificate of completion with the Court stating that an accounting was made, that distribution (if any) was made in accordance therewith and that all claims were paid (see D.C. Code 20-735).

Sales of real property of decedents whose estates are subject to supervised administration are by petition and order. All interested persons must be given written notice of the filing of such petition or must join in the petition to evidence their consent. Abbreviated probate proceedings are the same as standard except that pre-probate notice to interested persons and other notices are dispensed with. Small estate proceedings are greatly streamlined but are available only when the probate estate is valued at $10,000 or less.

Summarize the steps required for an intestate administration. Provide statutory citations.

The steps for administration of the estate of a decedent dying intestate is virtually the same as outlined in the previous paragraph, above, except that bond will be fixed at the full value of the inventory. Of course, the personal representative has the burden of ascertaining the name and address of all heirs and accurately reporting them to the Court under oath in the information report/list of interested persons.

Is there a procedure or documentation customarily accepted by the bar to indicate heirship which is not based on a statute or cases? (e.g. Affidavits of Heirship) If so, describe the procedure and furnish a sample of any forms.

Information report listing names of all known heirs is submitted under oath by the personal representative. In cases where the personal representative is uncertain about the identity and/or whereabouts of heirs or has reason to believe that there are unknown heirs he/she may petition the Court for a declaratory judgment (see D.C. Code 20-107). This is a problem frequently encountered in the District and is sometimes handled in the forum of the Superior Court in a post-distribution action to quiet title or for sale in lien of partition. No agent should take a Deed from heirs of any decedent, particularly those dying before January 1, 1981, without underwriter approval. Transfers made pursuant to Court approved sales of the real property of post-January 1, 1981 intestate decedents by a personal representative are considered immune from collateral attack by after-discovered heirs. Their remedy is limited to a claim against net proceeds of the sale.

Are there any short or abbreviated probate procedures provided for by statute? If so, summarize. Provide statutory citations.

Abbreviated probate proceedings are the same as standard which was outlined above except that pre-probate notice to interested persons and other notices are dispensed with. Small estate proceedings are greatly streamlined but are available only when the probate estate is valued at $10,000 or less.

Are there any other probate or alternative probate procedures available in your state that haven't been described? If so, summarize. Provide statutory citations.

Yes. Judicial probate under the direct supervision of the Court. This is very rarely encountered.

Do your state statutes provide for an ?inheritance" tax? If so, is it based on (a) an heir's share of the estate or (b) is it an estate tax on the total value of the estate, or (c) on another basis? When must the inheritance tax return be filed? Provide statutory citations.

There is an inheritance tax on the privilege of inheriting from decedents dying before July 1, 1987. For decedents dying after that date there is no local inheritance tax unless there is a federal estate tax liability and this tax is calculated on a percentage of federal estate tax paid.

Does your statutes provide for an inheritance tax lien? If so, summarize, e.g. What are the requirements for (a) attachment, (b) perfection; and (c) enforcement of the inheritance tax lien. Is there a statute of limitations for the inheritance tax lien? If so, specify. Provide statutory citations.

Unpaid inheritance taxes constitute a lien against the real property of the decedent and follow the property upon distribution. The lien is detached from real property if it is sold by the personal representative pursuant to a court order and attaches to the net proceeds of the sale (see D.C. Code 20-744). There is a ten (10) year statute of limitations on the enforcement of this lien.

Summarize the steps of the procedure for the sale of real property during the pendency of an intestate administration. Provide statutory citations.

Except in the case of unsupervised administration, the personal representative must petition the Court under D.C. Code 20-742 for ratification of any sale of real property. All interested persons usually join in the petition to evidence their consent to the sale, but if less than all of them sign, written notice must be sent to the others and a hearing held if any objections are noted. Generally, a contract negotiated by a Realtor or the appraisal used for the inventory is dispositive as to fair market value. The Court usually approves sales subject to an adjustment of the bond. Interested persons may object to a sale on the grounds that they want a distribution in kind (see D.C. Code 20-703). In the case of decedents dying after July 1, 1995, if a power of sale is granted in their Will and unsupervised administration is authorized, the personal representative may sell without a court order. Sound underwriting dictates that the personal representative obtain the written consent of all interested persons and that agents retain a copy in their file.

Can a personal representative for a testate administration sell real property of the estate without obtaining a court order? If so, please identify any requirements? Any limitations? Provide statutory citations.

No, unless Court has authorized unsupervised administration. If the real property being transferred by the personal representative was specifically devised in the Will, we must insist on the joinder of the specific devisee(s) in the Deed).

When, if ever, must a personal representative of a testate administration obtain a court order to sell real property of the estate? Summarize the steps of such procedure. Provide statutory citations.

See the two previous bullets, for explanation. Consents of interested persons will be closely scrutinized.

Do your state statutes provide for the probate of foreign wills (wills of testators not domiciled in your state)? If so, summarize the provisions and procedures. Provide statutory citations.

Yes, but it is somewhat confusing. D.C. does not require foreign personal representative to obtain local letters to be able to sell real property (see D.C. Code 20-341). For decedents dying before January 1, 1981 seized of D.C. real property, the foreign personal representative merely files "triple sealed" (see 28USC1738) copies of the Will, order for probate and letters from the other jurisdiction with the D.C. Register of Wills and receives a "special certificate." He/She is thereafter entitled to exercise in the District all powers of a D.C. personal representative. In the case of decedents dying after January 1, 1981, such filings are also required but, in addition thereto, the personal representative must also publish locally a notice of appointment and notice to creditors and must pay local inheritance taxes, if any (see D.C. Code 20-341 et seq.). However, unlike a local personal representative, he/she cannot sell free and clear of claims and the lien of local inheritance tax. Therefore, exception must be taken to possible claims if the sale is to close before notice has run.