Intestate Estate: Distribution Questions, a Late Claim, and a Dead POA
Your firm represents the surviving spouse in the administration of his wife's estate. She died intestate on January 12 in a state where the estate is subject to a four-month creditor claim period running from first publication of notice. Notice was first published February 2. The estate consists of a house titled in both spouses' names ($600,000), a brokerage account in the decedent's name ($150,000), and a car ($40,000). The decedent's two adult children from her first marriage are heirs. On June 3, the firm receives a hospital claim for $18,400 dated May 28. The spouse wants to sell the house immediately and use the decedent's durable power of attorney, which named him agent, to transfer the car title. He also asks you, the paralegal, 'Just tell me what each of us gets.' The attorney is out of the office until Monday.
1. The spouse asks what each heir will receive. What is your response and why?
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I cannot tell him what each heir will receive, and I should say so plainly rather than guess. The answer depends on the state's intestacy statute, how the house and brokerage account are characterized, the spousal share, debts and administration expenses, and whether any disclaimers or elections apply. Those are legal conclusions for the attorney. What I can do is explain the process in general terms, collect the deed, account statements, marriage and death certificates, and the children's information, and prepare a list of questions for the attorney. I can also draft a family settlement summary once the attorney gives the distribution analysis. The risk is not just being wrong; giving a specific number can create a client expectation and a malpractice or unauthorized-practice problem. I would tell him the attorney will review the inventory and provide a written analysis after Monday, and I would document the request and my response.
2. Is the hospital claim timely, and what should you do with it?
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The four-month period ran from February 2 and expired on June 2. The claim is dated May 28 but was received June 3, so on its face it is one day late. That does not mean I can reject it. Timeliness is a legal determination with possible exceptions, and the personal representative may need to file an objection or motion to disallow within a short statutory window. I would docket the receipt date, scan and file the claim, notify the attorney and the personal representative in writing, and confirm the publication affidavit and first-publication date. I would also check whether the claim was mailed earlier and whether the hospital has a different claim type. Do not write to the hospital denying the claim without attorney approval-an incorrect rejection can expose the estate. The attorney should decide whether to allow, compromise, or object, and the objection deadline must be calendared separately.
3. Can the spouse use the decedent's power of attorney to transfer the car, and can you prepare the transfer?
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No. A power of attorney terminates at the principal's death, so the spouse cannot use it to sign the car title or sell the house. The car is a probate asset and must be transferred by the personal representative under letters of administration or, if the estate qualifies, a small-estate affidavit. The house is titled jointly, so title passes by survivorship, but a sale still requires the surviving spouse's authority and possibly court approval depending on the state and the estate's status. I can prepare the title-transfer documents and the application for letters under attorney supervision, but I should not prepare them for signature under the old POA. The spouse should be told in writing that the POA is ineffective and referred to the attorney. I would also check whether the POA was recorded and whether it was durable-durability affects incapacity, not death.