Wills Outline of Gilbert Law Essay
- Length: 10 pages
- Subject: Business - Law
- Type: Essay
- Paper: #60528103
Excerpt from Essay :
Revival of revoked wills. In most cases, a revoked will is not revivable unless it is reexecuted or revived by codicil; however, if a revoked will was destroyed, it cannot be revived in this fashion.
Dependent relative revocation. These are mistakes of law made by the testator concerning the disposition of property that can be disregarded in the administration of a will.
Components of a Will
Integration. This term refers to the collation of various sheets of paper into a cohesive whole which constitutes a single, entire will which is executed via a single act.
Incorporation by reference. A majority of states allow documents that were not integrated into the single, entire will to receive the same force and effect by referencing them in the will.
Facts of independent significance. This term refers to the description of intended beneficiaries or bequests in a will that relate to an extrinsic act or event that must have some type of independent legal significance; such extrinsic acts must be shown to have legal significance besides their effect on the will itself.
Pour-over gift to inter-vivos trust. Pour-over gifts are made to a trust created during the testator's lifetime that are intended to be administered and distributed as part of the trust in order to provide a unified approach to the distribution of assets transfer to the trust inter-vivos as well as assets that were owned by the testator at the time of time.
Codicil. This document is used to modify, amplify or otherwise change a will in some way.
Contracts Related to Wills; Joint Wills
Contracts to make a gift by will. Contracts to make a gift via a will represent future intentions rather than the present testamentary intent required to satisfy statutory requirements and are therefore not admissible to probate as a will.
Joint wills. These types of wills are made by two or more people but which are executed as a single testamentary instrument; joint wills are admissible to probate upon the death of each of the testators, but if it is revoked by one or more of them, it only applies to the testators that have not revoked it.
Contract not to revoke a will. These contracts stipulate that a testator will not revoke a will, but such contract can be cancelled if notice is provided.
Contract not to make a will. The contractual requirement for consideration is an essential element to having these contracts held valid, but most states include the Statute of Fraud as being applicable as well.
Changes in Beneficiaries and Property after Execution of Will
Lapsed gifts. Bequests made to individuals who die before the testator are considered lapsed gifts that no longer have any effect, with certain statutory exceptions.
Class gifts. These types of gifts involve the designation of certain classes that include children (including out-of-wedlock and adopted children), heirs, issue, descendants and other family terms such as relatives, family, kin with standard interpretations.
Classification of testamentary gifts. This is necessary in order to determine the priority of distribution and abatement in those cases where the testator's assets are inadequate to comply with all of the bequests contained in the will.
Ademption. This term refers to property that was not among the testator's estate at the time of death and is therefore not included in the will, again with certain statutory exceptions.
Stock splits and stock dividends. Stock splits are regarded by the majority view as being assignable to the specific beneficiary cited by the testator; however, beneficiaries may not be eligible to receive additional shares that were created through stock dividends.
Exoneration of liens. If the testator has a personal lien against specifically devised property contained in a will, the beneficiary can request that the lien be paid from the residual estate.
Will Contests and Related Matters
Grounds for contesting wills. Wills can be contested on a number of grounds, including defective execution, revocation, lack of testamentary capacity or intent, undue influence, fraud or mistake.
Procedural aspects. Only individuals with proper standing can contest a will, and within a certain timeframe (typically 6 months).
Testamentary capacity. This term refers to the "sound mind" aspects of making a will and a lack thereof constitutes grounds for contesting the will.
Testamentary intent. Testamentary intent is presumed unless there evidence exists to the contrary.
Undue influence. As the term implies, this refers to actions that destroy the testator's free agency and compels the testator to substitute someone else's intentions for his or her own.
Fraud. Fraud exists as a content to a will when the testator was willfully deceived with respect to the contents of a will.
Mistake. Mistakes can assume several types, including mistakes in the will's execution, mistakes in the content of the will, the incorrect will was executed, the will was mistakenly revoked, etc., with the disposition of each type depending on the circumstances and jurisdiction.
Ambiguity. Parol evidence is always admissible to help clarify the testator's true intentions when ambiguities exist or can be inferred.
No-contest clause. In order for this clause to be rendered ineffective, the will must be successfully contested; otherwise, the person contesting the will forfeits all interests.
Tort liability for wrongful interference with expected inheritance. Some states provide tort remedies for intentional and wrongful interference with the distribution of an estate's assets to beneficiaries.
Probate and Estate Administration
Overview of estate administration process. The term "probate" is typically used to refer to the administrative processes by which an estate is distributed.
Proof of wills in probate. Anyone with an interest in an estate can offer a will for probate, and anyone in possession of a will must present it to the probate court within a specified amount of time or become subject to civil and potentially criminal charges.
Appointment and qualifications of personal representation. Executors are personal representatives of the decedent with the requisite qualifications (such as capacity to contract) who are tasked with administering a will and making distributions of the estate's assets.
Duties and liabilities of personal representative. Unless a bond is waived by the testator, executors must file a fiduciary bond with the court as well as a statement of acceptance of their responsibilities. The executor has all of the powers and duties necessary to manage and preserve the estate during its administration, but is liable for bad faith losses or breaches of fiduciary duties.
Creditors' claims. The executor is responsible for publishing notices of the testator's death, but certified mail notification is required for secured creditors.
Abatement. In situations where the estate's assets are insufficient to satisfy the bequests contained in the will, certain rules must be followed provide there are no stipulations to the contrary in the will.
Source of payment of death taxes. Beneficiaries are solely responsible for the payment of any taxes owing unless specifically stipulated otherwise in the will.
Entitlement to income during period of administration. In the case of specific gifts, beneficiaries are entitled to all proceeds that were generated by the gift following the testator's death but prior to their receipt.
Informal administration procedures. Although rules vary from jurisdiction to jurisdiction, Informal procedures can be used in those situations where an estate is small, all claims of creditors can be satisfied informally, and there is amicable agreement among the decedent's family concerning the disposition of the residual estate.
Section Two: Essay
One of the harsh realities of the human condition is the inability for people to "take it with them" when they die. Therefore, wills or trusts of various types are prepared by many people in order to ensure that their wishes concerning the disposition of their real and personal property are satisfied following their deaths. Given their importance in this regard, it is not surprising that a great deal of precedential case law has been developed concerning wills and their implications for the disposition of real and personal property. Likewise, when people die without leaving a will, there are laws on the books that control how their real and personal property is distributed. To gain some further insights into these issues, this paper provides a review of wills and their various types, as well as the legal terminology that is used in their administration. A summary of the research and important findings are presented in the conclusion.
Review and Discussion
Wills have been used for millennia to stipulate how individuals' assets would be disposed of following their deaths and today, the most common way people pass on their property is through the use of wills. At its most basic level, a will is simply some type of instrument that stipulates how decedents wants their real and personal property disposed of following their death. Because humans are living far longer than they did just a few centuries…