Wills, Intestate Succession, and Probate Law Explained

Introduction: The Uniform Probate Code

A lack of uniformity among states exists with regard to procedural provisions concerning adoption of the Uniform Probate Code (UPC). Substantively, states are similar — but not procedurally. Two versions of the UPC exist: the original and the revised version, both of which are commonly used by states in the development of their own provisions. The revised version came about as a result of the need to update the original to include nonprobate transfers, such as revocable trusts, life insurance, and employee benefit plans.

Intestate Succession and Inheritance Rights

Intestate succession focuses on distribution rules. Intestacy statutes govern the distribution of the property of a person when that person dies without a valid will, when the will is denied probate, or when the will does not completely dispose of the estate — resulting in a partial intestacy (Johanson, 2010). All states today generally share the same rules with regard to intestate distribution, but the state law where the decedent was domiciled at the time of death determines the disposition of personal property. Disposition of real property, however, is determined by the law of the state where the property is located.

Inheritance rights permit an adopted child to have the same inheritance rights as a biological child. Stepchildren and foster children have no inheritance rights from step or foster parents unless there is an unperformed agreement to adopt. Posthumous children have the same rights as biological children, as do nonmarital children, so long as paternity can be determined.

Succession issues that commonly arise include: simultaneous death of both parents, regulated by the Uniform Simultaneous Death Act; the advancement and satisfaction of legacies, wherein most states permit advancements to be made to any heir; and disclaimer by an heir or will beneficiary, wherein the disclaimed interest passes as though the disclaimant predeceased the decedent. In cases where an heir is found to be the slayer of the decedent, this usually results in the wrongdoer forfeiting any interest in the decedent's estate. Aliens are typically given an unrestricted right to inherit property within most states (Johanson, 2010).

Restrictions on Testation and Formal Requirements of Wills

Restrictions on the power of testation include the rule that a surviving spouse's only right in a decedent's estate was formerly dower or curtesy. These have been replaced in most states with elective share statutes, which allow the surviving spouse a share of the decedent's estate in lieu of taking under the will. In all but one state (Louisiana), a testator may disinherit children. Homestead laws also exist to protect the family residence or farm from claims made by creditors.

The formal requisites of wills are determined by what constitutes a will, defined as an instrument executed with certain formalities that directs the disposition of a testator's property at death, effective only upon the testator's death (Johanson, 2010). A codicil is a supplement or amendment to a will. There are three types of wills:

1) An attested will — one that is written, signed by the testator, and witnessed by two or more persons; 2) a holographic will — recognized by roughly half of all states, in which the material portions are entirely in the testator's handwriting and signed by the testator, but no witness is required; and 3) an oral will — valid in many states but only in limited circumstances (Johanson, 2010).

In all states, making a will is not a natural right and is subject to the legislature's plenary control. The general rule is that a testator must have intended the document in question to be the will at the time the instrument was executed. Conditional wills also exist, in which disposition occurs only after an event stated in the will has taken place.

References

Johanson, S. M. (2010). Wills. Thomson/West.