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Wills and Estates
University of Mississippi School of Law
Gershon, I. Richard

Wills and Estates

Richard Gershon

Spring 2013

ESTATE PLAN BY DEFAULT – THE LAW OF INTESTATE SUCCESSION

Intestate Estate (Uniform Probate Code): (a) Any part of a decedent’s estate not effectively disposed of by will. (b) A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession.

In Mississippi, Title 91 is basically the probate code.

Sec. 91-1-1. What law to govern.

“All personal property situated in this state shall descend and be distributed according to the laws of this state regulating the descent and distribution of such property, regardless of all marital rights which may have accrued in other states, and notwithstanding the domicile of the deceased may have been in another state, and whether the heirs or persons entitled to distribution be in this state or not. The widow of such deceased person shall take her share in the personal estate according to the laws of this state.”

o The MS rule is unlike every other state (regardless of where the testator is domiciled, if their property is within MS, it passes through MS laws). In all other states, it is the State in which the testator was domiciled which governs.

Sec. 91-1-3. Descent of land.

In MS as well as in most states, shares are established by the first generation lineage regardless of it they are alive or not (however, this can be modified through will).

Sec. 91-1-5. Half-bloods.

“There shall not be, in any case, a distinction between the kindred of the whole and half-blood, except that the kindred of the whole-blood, in equal degree, shall be preferred to the kindred of the half-blood in the same degree.”

o The “preference” may arise if, for example, there is not enough estate to go around, the whole blood may get more.

SHARE OF INTESTATE’S SPOUSE

o MS: If the decedent has a spouse and children, the decedent’s assets are divided into equal shares for the spouse and the children. The descendants of any deceased child inherit that child’s share. If the decedent has a spouse but no children, the entire estate passes to the spouse.

Simultaneous death

o A person succeeds to the property of a decedent only if the person survives the decedent for an instant of time (CL).

o 120-hour rule provides that an heir or devisee or life insurance beneficiary who fails to survive by 120 hours (5 days) is deemed to have predeceased the decedent.

Janus v. Tarasewicz: Life insurance case concerning who survived the other (husband & wife).

o MS has adopted the Simultaneous Death Act: in the rare case of actual simultaneous death, or where we cannot prove whether one person survived another, we declare a tie and simply give their property to their contingent other (i.e. Husband’s baseball cards go to his brother & Wife’s jewels go to her sister; classroom example of a will & simultaneous death).

o Dean: having a determined (and required) time frame of survivorship placed in the will solves many problems. However, it is hard to do this in cases like Janus concerning life insurance. Also, consider recommending making lifetime gifts (gift inter vivos) because it is most likely more meaningful if given during their lifetime.

SHARES OF DESCENDANTS

In all jurisdictions in this country, after the spouse’s share (if any) is set aside, children and descendants of deceased children take the remainder of the decedent’s property to the exclusion of everyone else. When one of several children has died before the decedent, leaving descendants, all states provide that the child’s descendants shall represent the dead child and divide the child’s share among themselves. Sons-in-law and daughters-in-law are excluded as intestate successors in virtually all states.

o English Per Stirpes (strict per stirpes)

· Followed by about one-third of the states.

· Treats each line of descendants equally.

· The children of each deceased descendant represent their deceased parent and are moved into their parent’s position beginning at the first generation below the designated person.

o Modern Per Stirpes (per capita with representation)

· Followed by nearly half of the states.

· First look to see whether any children survived the decedent.

· If so, the distribution is identical to English per stirpes.

· If not, the estate is divided equally (per capita) at the first generation in which there are living takers, which is usually the generation of the decedent’s grandchildren.

§ The decedent’s estate is divided into shares at the generational level nearest to the decedent in which one or more descendants of the decedent are alive. Any deceased descendant on that level is represented by her descendants using an English per stirpes distribution.

o Per Capita at each generation

· Followed by about a dozen states.

· The initial division of shares is made at the level where one or more descendants are alive (as under modern per stirpes), but the shares of deceased persons on that level are treated as one pot and are dropped down and divided equally among the representatives on the next generational level.

§ This system treats equally each taker at each generation with the other takers at that generation. The premise of this approach is that those equally related to the decedent should take equal shares: “Equally near, equally dear.”

In MS, the shares are established at the first generation, regardless of who is alive (the grandchildren will take the share/percentage of the share represented by their parents). The UPC divides shares among the first lineal generation that has a living descendant. Under the UPC, the shares would be divided evenly among the grandchildren, if all of the parents are dead, regardless of their parents’ assigned share. ASK WHAT YOUR CLIENT WANTS UNDER ANY GIVEN SITUATION SO

is crime (rare).

· (2) The legal title will not pass to the slayer because of the equitable principle that no one should be permitted to profit by his own fraud, or take advantage and profit as a result of his own wrong or crime.

· (3) Constructive trust (not a real trust); the legal title passes to the slayer but equity holds him to be a constructive trustee for the heirs or next of kin of the decedent.

MS Statute Section 91-1-25

o If any person willfully cause or procure the death of another in any way, he shall not inherit the property, real or personal, of such other; but the same shall descend as if the person so causing or procuring the death had predeceased the person whose death he perpetrated.

o Disclaimer pg. 152

· Within 9 months of the decedent’s death, a person may file a disclaimer (refusal to take inherited property).

· Disclaimers allow for post-mortem estate planning.

· The most common motivations for disclaimer are to reduce taxes or keep property from creditors.

· You can pick and choose which assets (or how much) you want to disclaim.

· “Think of a disclaimer as a way to ‘reshuffle the deck’ a little bit in order to get a better outcome.”

Who Might Disclaim?

o Wealthy beneficiary (to minimize tax exposure)

o Disabled beneficiary

o Elderly beneficiary (avoid extra estate administration)

CAPACITY AND CONTESTS

What is Sound Mind?

Threshold issue: Does my client have the capacity to make a will?

o If there is a client that does not have the capacity to make or modify a will, ethically, you cannot make or modify that will (i.e. even if family members encourage the drafting/changing of the will and claim that it will not be contested).

Requirement

Section 91-5-1. Who may execute; signature; attestation.

o 18 years of age

o Being of sound and disposing mind

· Dean says the only standard in law lower than the capacity to make a will is the capacity to get married.

Capacity (client must)

o Be age 18 or older

o Know who natural beneficiaries are (natural objects of bounty).

o Know nature and extent of property.

o Understand what a will is and its affect on beneficiaries and property.

· NOT A HIGH STANDARD.

***You can raise a capacity issue anytime you see an undue influence issue.