Wills Outline of Gilbert Law

¶ … Wills

Outline of Gilbert Law Summaries -- Wills

Intestate Succession

Patterns of intestate distribution. Rules vary from jurisdiction to jurisdiction, but generally in those cases where the decedent did not leave a will or the will does not provide for complete distribution, the pattern of distribution is typically the spouse (who receives one-half or one-third if there are descendents, and everything in there are not. In cases where there is no surviving spouse, children receive everything and grandchildren and other descendents receive the parent's share in the parent did not survive.

Intestate distributions -- community property states. Eight states are community property states and rules also vary among these, with general agreement that separate property is property acquired prior to marriage and community property is acquired during the pendency of the marriage.

Chapter II. Inheritance Rights as Affected by Status of Child or Sibling

A.

Adopted children.

When children are adopted, they gain entitlement to inherit from adoptive parents but typically lose the right to inherit from the natural parent.

B.

Children born out of wedlock. Typically, out-of-wedlock children can inherit from their mother and her relatives, but additional proof is required in most cases to inherit from fathers.

C.

Posthumous children. Children born after the death of a parent or parents typically may inherit from the decedent or decedents.

D.

Stepchildren. Unless certain circumstances exist to establish adoption by estoppel, stepchildren may not inherit from a stepparent

E.

Do grandchildren take per stirpes or per capita? Generally, grandchildren take by representation in those cases where there were no surviving children of the decedent, and distribution may be per stirpes or per capita.

F.

Inheritance by brothers and sisters of the half-blood. The majority of states provide that half-bloods take the same as whole bloods, but some states stipulate that half-bloods receive only half as much as whole bloods.

Chapter III. Succession Problems Common to Intestacy and Wills

A.

Simultaneous death. Besides Louisiana and Ohio, all states have adopted the Uniform Simultaneous Death Act that provides there must be a distinguishable amount of time between the death of a decedent and survivor to establish priority of distribution. Absent evidence that both parties died other than at the same time, the property of both parties is distributed as if they had survived.

B.

Advancements, satisfaction of legacies. Common law as well as the laws of several states dictate that any lifetime gift to a child is presumed to represent an advance payment of the child's intestate share of the estate, with the burden of proof that such an advancement was not made being on the party so contending.

C.

Disclaimer by heir or will beneficiary. No one can be compelled to accept a bequest; if denied, the bequest is distributed as if the disclaimant predeceased the testator.

D.

Killer of the decedent. Once again, rules vary from jurisdiction to jurisdiction, with some states providing that the killer of a decedent retains the right to inherit from the estate because to do otherwise would be to impose an additional punishment for the crime, while others (more logically it would seem) bar the killer from inheriting from the estate.

E.

Nonresident aliens. Although most states allow nonresident aliens to inherit without restrictions, some stipulate that any real property inherited must be disposed of within a time certain, while others bar nonresident aliens from inheritance unless their countries of residence provide reciprocal provisions.

Chapter IV. Restrictions on the Power of Testation -- Protection of the Family

A.

Protection of the spouse -- common law. Most states have replaced the common law dower and curtesy provisions with statutory rules, the common law still applies in some states.

B.

Protection of the spouse -- elective share statutes. Most states have protections on the books that prevent spouses from being disinherited and allow the surviving spouse to take the statutory share (typically one-third or one-half) instead of taking under the provisions of the decedent's will.

C.

Lifetime transfers to defeat the elective share. Most states have provisions or doctrines whereby surviving spouses can challenge lifetime transfers of property.

D.

Protection of the spouse -- community property states. None of the eight community property states has a statute covering elective share and the surviving spouse automatically owns one-half of the community estate over which he or she has dispositional power.

E.

Pretermitted child statutes. All states except for Louisiana have some type of provision that allows parents to disinherit their children; however, many states have provisions that protect children who were accidentally left out of a will.

F.

Homestead, exempt personal property, family allowance. A number of states protect the family residence or farm from the claims of creditors through the use of homestead laws. These laws also differ, sometimes significantly, from jurisdiction to jurisdiction, but are characterized by several commonalties, including the protection from creditor claims, the need for the signature of both spouses to convey interest in the homestead, and provides an unassignable right for the surviving spouse (or children if no spouse survives) to occupy the family residence; minor children's rights expire on the date of their majority, and this right expires if the residence is left unoccupied.

G.

Testamentary gifts to charity. In most states, there are no restrictions on bequests to charitable institutions, but a few states still retain statutes that restrict such testamentary gifts.

Format Requisites of Wills

A.

What constitutes a will. At the most basic level, a will is simply a document that functions to transfer ownership of real or personal property after someone dies.

B.

Governing law. The Uniform Probate Code (UPC) was promulgated in 1969 and subsequently approved by the National Commissioners on Uniform State Laws; however, the UPC has only been adopted in whole or part by a handful of states. In some states where the UPC does not control, the laws are still modeled after it, while other states have retained their laws and have modified them as required.

C.

Testamentary intent. Testamentary intent is required in order for a will to be executed; in other words, the testator must have intentionally used the words contained in the will and any subsequent changes made through codicils or otherwise at the time of their execution.

D.

Capacity to make a will. Testamentary capacity is required to execute a will or any subsequent changes made through codicils; the mental capacity requirements for testamentary capacity are less restrictive than for other purposes.

E.

Execution of attested wills. Unless all of the statutory requirements for a will have been satisfied, a will does not exist and any document purporting to be such is inadmissible to probate. Signatures on wills can assume a wide range of forms, including first names or nicknames only, initials, parenthood titles, or even a "X."

F.

Witnesses. Witnesses to the signature of wills must also have the requisite competency to do so which is typically interpreted to mean they have sufficient maturity and mental capacity to understand the implications of the execution of the will.

G.

Attestation clause. In all well-drafted wills, an attestation clause is included that recites the details of the statutory requirements involved in the performance of the execution of the will.

H.

Self-providing affidavit. A number of states allow these affidavits that serve as additional documentation that can replace live testimony during probate.

Holographic wills. About half of the states recognize these types of wills which are simply completely handwritten in the testator's own handwriting and which typically do not contain the signature of witnesses.

J.

Oral wills. These types of wills are allowed by a number of the states, but only in extreme circumstances (i.e., service members, during testator's last sickness or in anticipation of immediate death).

K.

Conditional wills. These types of will stipulate that a condition must be satisfied in order for the will to be operative; absent such condition, the will is void.

Revocation of Wills.

A.

Revocation by operation of law. Some changes in the testator's circumstances (i.e., marriage or divorce) are addressed differently by about half of the states, with one-half holding that such changes do not affect a previously made will while the other half holds that such changes do affect a previously executed will; however, a majority of states recognize that divorce operates to at least partially revoke a will but do not affect insurance proceeds.

B.

Revocation by subsequent testamentary instrument. Testators can revoke a previously made will in whole or in part but must be stated in unambiguous terms with the present intent to revoke made clear.

C.

Revocation by physical act. It is possible to revoke a will by tearing it up, burning it, or otherwise physically destroying or obliterating it with the distinct purpose of revoking it.

D.

Proof of lost wills. It is possible to have a lost will admitted to probate in most states provided that: (a) the will be proven to be validly executed; (b) that it was lost rather than revoked; and (c) proof concerning the contents of the will is provided.

E.

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.

F.

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

A.

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.

B.

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.

C.

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.

D.

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.

E.

Codicil. This document is used to modify, amplify or otherwise change a will in some way.

Contracts Related to Wills; Joint Wills

A.

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.

B.

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.

C.

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.

D.

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

A.

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.

B.

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.

C.

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.

D.

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.

E.

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.

F.

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

A.

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.

B.

Procedural aspects. Only individuals with proper standing can contest a will, and within a certain timeframe (typically 6 months).

C.

Testamentary capacity. This term refers to the "sound mind" aspects of making a will and a lack thereof constitutes grounds for contesting the will.

D.

Testamentary intent. Testamentary intent is presumed unless there evidence exists to the contrary.

E.

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.

F.

Fraud. Fraud exists as a content to a will when the testator was willfully deceived with respect to the contents of a will.

G.

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.

H.

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.

J.

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

A.

Overview of estate administration process. The term "probate" is typically used to refer to the administrative processes by which an estate is distributed.

B.

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.

C.

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.

D.

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.

E.

Creditors' claims. The executor is responsible for publishing notices of the testator's death, but certified mail notification is required for secured creditors.

F.

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.

G.

Source of payment of death taxes. Beneficiaries are solely responsible for the payment of any taxes owing unless specifically stipulated otherwise in the will.

H.

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 -- or even decades -- ago, the need for the ambulatory and revocable qualifications in the definition of wills has assumed new relevance and importance in recent years. In the past, it was rare for people to live long enough to have more than one marriage, for example, but this has changed and many people may have two or more marriages during their lifetimes, creating a number of blended family arrangements that require changes to previously drafted wills. The term "ambulatory" refers to the ability to change a will while someone is still alive. Such changes may be required with respect to the disposition of assets to family members and others as circumstances change. For instance, testators may elect a per stirpes or per capita distribution. These different approaches may become necessary from the perspective of the testator if one adult child, for example, has numerous children while another adult child remains childless. Such changes to existing wills can be accomplished by either writing a completely new will or through an amendment process using a codicil. In addition, a will may be revoked in its entirety and replaced with a completely new will or not, depending on the desires of the individual.