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

 
WILLS & ESTATES
Weems / Spring 2013
 
 
Chapter 1:  Intestate Succession
 
            § 1.1  Property subject to law of intestate succession
 
·         All property (real and personal) in which deceased person owned an inheritable interest in at time of death and which was not included in a will is controlled by intestate succession
 
·         Life insurance proceeds are distributed by intestate succession when
o   Decedent dies with life insurance proceeds payable at death,
o   Decedent dies without a will, and
o   “Estate of Insured” is the beneficiary 
 
·         Joint tenancy with right of survivorship property is not affected by intestate succession because the decedent does not own an inheritable interest in the property but rather the surviving joint tenant owns 100% inheritable interest
 
o   Joint tenancy is presumed for bank accounts and certificates of deposit
§  made in the name of two or more persons and
§  payable to any one of such persons or the survivor
 
o   Joint tenancy for the contents of a safety deposit box requires clear and unambiguous agreement to that affect (owner must purposely contract rights to those items)
 
Weaver v Mason:  The law (in MS and other places as well) is clear that joint tenancy of an asset cannot be part of a single joint tenant’s estate — the money goes to the surviving joint tenant with right of survivorship; thus, bank accounts held in joint tenancy cannot be touched by creditors seeking debt from only one of the joint tenants who died.
 
Cooper v Crabb:  When property is clearly owned in a joint tenancy with right of survivorship, parol evidence will not be allowed to supplement the documents which make that clear.
 
 
            § 1.2  Governing law
 
·         CL Rule: 
o   intestate succession of real property was governed by the law of the state or nation where the land was located
o   intestate succession of personal property was governed by the law of the decedent’s domicile
·         MS Rule:
o   Intestate succession of real and personal property located in the state is governed by the law of Mississippi
·         Change in law has extinguished ancillary administrations in MS
o   An out of state resident has to open up an original administration in MS to get property that is covered by MS law
 
·         Apply MS law (even though owner/creditor is out of state resident) to
o   Inheritance of money on deposit with a bank in MS  
o   Inheritance of stock in a MS corporation
o   Recovery of debts owed by MS residents
 
 
§ 1.3  Heirs at law – Time of determination
 
·         MS Rule:  Whoever is the inheritable class at the moment of death will inherit as long as they are “in being”
 
 
§ 1.4  Heirs at law “in being” – Posthumous heirs
 
Harper v Archer:  a person is “in being” i.e. “alive” from the moment of conception (for the purposes of inheritance).
 
·         For a child heir merely conceived at death of decedent, “in being” requires
o   Fetus to be born alive and
o   After such period a of fetal existence that its continuance in life might be reasonably expected
 
·         Uniform Simultaneous Death Act
o   If a husband and wife both die in a car accident and it can be proved by preponderance of the evidence that she lived one minute longer than he did, she will inherit everything he owned
o   However, if it is not proved by preponderance of the evidence that she lived any amount of time longer than he did, then neither one inherits the other’s property and it will be inherited by survivors of both spouses as if the other spouse had died before the accident took place
 
 
§ 1.5  Heirs at law – Right of representation
 
·         Whenever a person’s parent would have taken an inheritance by intestate succession from a decedent’s estate had the parent been alive at the time of the decedent’s death, but the parent was in fact not alive at that time, the person and his or her brothers and sisters, if any, who are in being at the time of decedent’s death, will take in equal parts the inheritance their parent would have taken
o   MS law gives right of representation to:
§  Descendents of the person who died and
§  Descendents of the dead person’s siblings
Dunaway v McEachern:  right of representation does not go to a spouse of a deceased-intended beneficiary, only descendants of decedent.
 
Rodgers v Rodgers:  unlike most jurisdictions where inheritors in the same class receive per capita inheritance, MS law uses per stirpes to distribute inheritance to heirs at law
§  Hypo
o   A had two brothers named B and C who died earlier
o   A now dies intestate
§  Majority Rule (Per Capita)
o   B’s two children and C’s three children each get 1/5 of A’s estate
§  Mississippi Rule (Per Stirpes)
o   B’s two children get 1/4 each
o   C’s three children get 1/6 each
 
§ 1.6 Heirs at law – Relatives by Consanguinity
 
§  Two groups
o   Lineals
§  Ancestors = relatives on whose prior existence the decedent’s birth depended
·         Parents, grandparents, great-grandparents, etc.
§  Descendants = relatives who would not have been born but for decedent
·         Children, grandchildren, great-grandchildren, etc.
o   Collaterals = relatives whose existence did not depend on the existence of decedent
·         Brothers, sisters, uncles, aunts, cousins, etc.
 
§  Four Inheritance Groups in MS
 
o   Group I = decedent’s children and the descendents of decedent’s children who died before the decedent died
§  One share to surviving spouse
§  One share to each surviving child
§  One share to each child of a previously deceased child (per stirpes)
o   Group II = decedent’s father, mother, brothers, sisters, and descendants of previously deceased
§  One share to each parent and sibling
§  One share to each child of a previously deceased sibling (per stripes)
o   Group III = decedent’s grandparents, uncles, and aunts
§  One share to each grandparent, uncle, and aunt
§  No share to a previously deceased uncle or aunt
·         Right of representation does not extend to cousins
o   Group IV = decedent’s relatives of the highest degree as computed by the rule of civil law

ther the plaintiff or the defendant may make a motion for a DNA blood test pursuant to MS § 93-9-21
o   Court has power to compel a party to submit a blood test
o   Court can only request a nonparty witness to submit a blood test
 
o   Illegitimate child may inherit as a legitimate child IF
§  Natural father marries natural mother and acknowledges the child as his OR
§  Natural parents participate in a marriage ceremony before child’s birth
·         Even if the subsequent marriage was declared null and void by court
 
o   Natural parents and their kindred may inherit from the illegitimate
§  BUT one natural parent and its kindred may not inherit through the illegitimate any property the illegitimate inherited from the other natural parent
 
o   The illegitimate  child who dies unmarried and without issue cannot transfer, even by will, property inherited from his father or mother
 
o   Natural father and his kindred cannot inherit from or through the illegitimate child UNLESS the father has
§  openly treated the child as his and
§  neither refused nor neglected to support the child
·         BOP is on the father’s kindred to prove by preponderance of the evidence
o   If no evidence on either of the two prongs, then claim of father’s kindred must fail
 
o   Administrator’s obligation concerning illegitimates
§  as trustee, must exercise reasonable diligence to determine illegitimates’ identity and location
§  should disclose to court any actual knowledge of persons claiming to be illegitimate heirs
·         If administrator, with knowledge of an illegitimate heir claim, represents to the court that another person is the sole heir of an estate, such representation may represent fraud on the court
§  required to provide actual notice to known or reasonably ascertainable illegitimate children who are potential heirs and whose claims will be barred by the running of the 90 day limitation
§  as protector of the assets of the estate, duty to contest claims of people who profess to be illegitimate heirs if such claims may be contested properly and in good faith
 
o   Where there has been an adjudication of paternity prior to the death of the intestate that a certain child is the natural child of a certain man, the adjudication is FINAL and the issue of paternity may not be adjudicated again
§  Even if adjudication was by default, no blood or DNA tests were submitted, and the person seeking readjudication was not a party to original adjudication