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Wills and Estates
University of Mississippi School of Law
Weems, Robert A.

Wills and Estates – Weems – Spring 2013

INTESTATE SUCCESSION

1. Requires

a. D owned inheritable interest in property, and

b. D had no will, or

c. Will did not cover certain property

2. Tenancy in Common – D has inheritable interest, so intestate succession

3. Joint Tenancy w/ Survivorship – no inheritable interest b/c goes to survivor

a. Bank accts and CDs – joint tenancy assumed if in name of 2+ people and payable to any of them

b. Safety Deposit Box – requires clear and unambiguous agreement to have tenancy w/ survivorship

c. Trumps – tenancy w/ survivorship trumps intestate succession and wills; testator cannot defeat tenancy w/ survivorship w/ a rill (Strange)

d. Weaver – if one joint tenant dies, goes to survivor and cannot be touched by D’s creditors

e. Crabb – if terms on bank acct clearly state it’s joint tenancy w/ survivorship, that’s conclusive as to intent and parole evidence to the contrary is inadmissible

f. Life Insurance Proceeds – unless estate is benefiting, goes to named beneficiary on policy

4. Which State’s Laws Govern?

a. CL – real property = where it’s located

personal property = D’s domicile, which allowed A to use ancillary admin to bring personalty back to D’s domicile

b. MS – real and personal property in MS governed by MS, which means no ancillary admin – must open up original admin in MS to get to property in MS

i. Bank accts in MS, stock in MS corporations, debts owned by MS residence

5. Must be “In Being” to Inherit

a. Must be in being at time of D’s death to inherit

b. In being = from moment of conception

c. Posthumous Heirs – conceived, but unborn when D dies; to inherit:

i. Continuance of life reasonably expected and born alive

6. Simultaneous Death Act – If not proved by POE one spouse lived any longer than the other, neither can inherit from the other; will be inherited by survivors as if other spouse died before the accident

7. Right of Representation – siblings will inherit equal shares of what parent would’ve inherited by intestate success if alive

a. ROR given to

i. Descendants of D (children, GC) and

ii. Descendants of D’s siblings (nieces/nephews)

b. ROR NOT given to

i. Spouses (Dunaway)

ii. Descendants of D’s aunts/uncles (cousins)

c. Per Stirpes (minority and MS) – split inheritance by parent (Rodgers)

d. Per Capita (majority) – split inheritance equally among all with ROR

8. Blood Relatives

a. Lineals

i. Ancestors – relatives who D’s birth depended on (parents, GP, GGP)

ii. Descendants – relatives who would not have been born but for D (children, GC, GGC)

b. Collaterals – relatives whose existence did not depend on D (siblings, aunts, uncles, cousins)

9. Inheritance Groups in MS

a. (1) surviving spouse, children, previously deceased child’s descendants by ROR

b. (2) parents, siblings, previously deceased sibling’s descendants by ROR

c. (3) grandparents, uncles, aunts, and NOT previously deceased aunt/uncle’s descendants (cousins)

d. (4) relatives of highest degree computed by civil law chart

e. (5) estate goes to state

10. Half Blood Relatives – can exist only among collaterals; presumed full blood unless designated half blood; FB = 2 common ancestors; HB = 1 common ancestor

a. Rule – half bloods in groups 2 and 3 are no less a relative than full bloods

b. Exceptions

i. (1) If FB heir exists in same group as HB heir, then FB heir will inherit to the total exclusion of the HB.

1. (parent will inherit to total exclusion of HB brother)

ii. (2) ROR – FB children of FB predeceased heirs take to the exclusion of HB in same position

iii. (3) HB nieces/nephews take to the exclusion of FB cousins

11. Wrongful Death Statute – although proceeds don’t go to beneficiaries through intestate succession, it follows the same groups and half blood rules.

12. Surviving Spouse – inherits shares equal to surviving children, but entitled to exclusive use/possession of homestead and living allowance that’s not counted as part of inheritance; no CL marriage in MS

13. Adoptions

a. Adopted Child’s Right to Inherit from Adoptive Family – has full ROR, but can’t inherit from more distant relatives like cousins/nieces/nephews like natural kid

b. Adoptive Family’s Right to Inherit from Adopted Child – can inherit as if natural

c. Natural Family’s Right to Inherit from Adopted Child – no right

d. Adopted Child’s Right to Inherit from Natural Family – statute is to be strictly construed and is silent, so the right remains intact

e. Half Adoption – adopted by new spouse of natural parent; rights stay the same

f. “Heirs of the Body” – if used in a will, excludes adopted children

g. Jones – MS law controls, not state where adoption took place, if property is here

14. Illegitimates

a. CL – couldn’t inherit from anyone other than spouse/children; discourage sex outside of marriage

b. MS – first permitted NMCs to inherit from mom and her kin, then also permitted to inherit from father and his kin if

i. Adjudication of paternity before death of intestate (final) OR

ii. Adjudicate paternity after death of intestate (suit to determine heirship)

c. Suit to Determine Heirship

i. Anyone who needs to know names of heirs can obtain that info, but people almost never institute these suits b/c family usually believes they know who the heirs are

ii. SOL – 90 days after first notice to creditors OR if estate is not opened, w/in one year of death, whichever is less

iii. Standard – NMC must prove by CCE his relationship with decedent

1. Becomes BRD if mom was married to another man at time of birth

iv. DNA Test – can motion for it and court has power to compel party, but can only request nonparty witness to submit

d. NMC Can Inherit as Legitimate Child if

i. Natural father marries natural mother and acknowledges kid as his OR

ii. Natural parents get married before birth (even if later declared null)

e. Natural Parents and their Kin can Inherit from Illegit, but one natural parent and kin cannot inherit any property NMC inherited from other natural parent

f. Natural Father and Kin Cannot Inherit from Illegitimate UNLESS Prove by POE

i. Father openly treated kid as his AND

ii. Father neither refused nor neglected to support kid

g. A’s Obligation Concerning NMCs

i. Trustee – must use reasonable diligence to determine NMC id/location

ii. Disclosure – should disclose to court any actual knowledge of claims

iii. Notice – must give notice to known/reasonably ascertainable NMCs

iv. Protector – contest claims if can be contested properly and in good faith

15. In Laws – cannot inherit by intestate succession

16. Nonresident Aliens – cannot acquire and hold MS land by intestate succession or will UNLESS residents of Syria/Lebanon, were US citizens and became aliens b/c marriage, treaty b/t 2 countries permits aliens to own land

17. Escheat – if no one to inherit, then it goes to the state (rare)

18. Advancements – if can prove parent gave siblings inter vivos gifts w/ intent they be advancements of their inheritance, will be admitted into evidence so estate can be split evenly based on its

nd is obligation of A unless court authorizes estate to pay or fixes it

5. Temporary Administrator – TA does everything as regular A until one is appointed and is entitled to fair compensation

6. Administrator Ad Litem – when regular A is unneeded, A Ad Litem appointed for sole purpose of pursuing c/o/a not filed yet or already pending when D died

7. County Administrator – if no A is appointed w/in 60 days of death, CA has duty to manage estates of Ds who died owning property in MS

8. Sheriff as Administrator – of last resort – court must be shows there are assets to administer and creditor claims, if they exist, are valid

9. A’s Misconduct – Removal – generally may NOT be removed w/o proof of misconduct and A must be given notice before removed

10. Other Causes for Removal – court can replace A with someone who has a superior claim to the position; if a will is probated and letters of testamentary granted, effectuates A’s removal

11. A’s Resignation – can resign, but must make final settlement and satisfaction of the trust, and entitled to compensation

12. A De Bonis Non – successor appointed when A dies/resigns/removes

13. Estate to be Administered – personal property goes into A’s possession to pay debts/expenses and the remainder to be distributed to heirs at law

14. When Appraisers Appointed – unless otherwise ordered, at least 3 disinterested people appointed appraisers that must (1) inventory and appraise personal property (except money and choses in action) and (2) return report to court w/in 30 days

a. Appraised value is presumed prima facie correct, but if shown to be incorrect, A is chargeable w/ the proven value rather than the appraised value.

15. When Appraisers NOT Appointed – court can dispense w/ appointment of appraisers for good cause (not really defined, but can be expensiveness)

a. If no appraiser, A must inventory (1) money/debts due and (2) list of excess property and its value w/in 90 days

b. If add’l property, must amend add’l inventory w/in 30 days

c. NOT answerable for improperly withheld property from heirs, BUT must use due diligence to pay back creditors

16. Court’s Waiver of Inventory and Appraisement – court can waive appointment of appraisers, but cannot waive inventories and appraisals – A becomes responsible

17. Setting Aside Exempt Personal Property – exempt property goes to heirs directly and cannot be used to pay debts/expenses, expenses of last illness, funeral expenses, regardless of solvency or insolvency

a. Exempt Items

i. Tangible personal prop worth less than 10k

ii. Part of wages earned

iii. 50k life insurance policy on D’s life payable to A

iv. Homestead in MS up to 75k and 160 acres (if no unpaid creditors, dollar limitation is irrelevant)

18. Support for One Year – A must pay to surviving spouse and dependent kids enough to enable them to live for a full year