Select Page

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

Wills and Estates Outline

Gershon

Fall 2015

Table of Contents

Capacity & Undue Influence
Execution of Wills and Formalities
Revocation and Dependent Relative Revocation
Ambiguities and Construction (Abatement, Lapse, and Adoption)
Family Protection Provisions

DOA Guardianships and Healthcare Directives

Section I: Intestacy

Intestacy

Intestacy is the process by which property is passed at death when the decedent failed to make a valid will
Statutes—Intestacy is governed by statute and is slightly different in each state.
Escheat—If there are no heirs in the intestate statutes, the property passes to the state through Escheat.
Historically

Primogeniture—The first born son took all property of the decedent
Males Predominated—the males took over females and females only took if there were no male heirs
Females Shared Equally—If there were no male heirs, the females would all take in equal shares.

Spouse—At common law, the surviving spouse was not considered an heir but received some property rights in the marital estate.
Widows—Dower Rights—The surviving widow received a life estate in 1/3 of the property owned by the husband during the marriage
Widowers—Curtesy Rights—husband received a life estate in all the wife’s property and if a child was born to the marriage
Modern Law—Spouses take though intestate now in a share determined by the statute.

Other Protections—There are also other protections such as Homestead protection which allows a surviving spouse to remain living in the marital home.

Homestead—Surviving spouse retains a possessionary interest over those who hold title.
Personal property exemptions—The spouse may retain the personal property he uses

Marital Property

Spousal Election—Even if the spouse is disinherited, the surviving spouse may elect to take a statutory share against the will.
Community Property States—In community property states, the elective share provisions are not necessary because all property is owned jointly by the husband and the wife, so the surviving spouse already owns 50% undivided interest in the marital property

The Meaning of Death

Only the Living—Only the living may inherit through intestacy. If a person predeceases the decedent, that person will not inherit through intestacy.
120 Hour Rule (UPC)—The UPC mandates that if a person does not survive at least 120 hours, they are to be treated as though they predeceased for the purposes of intestate (and testate succession)
Nine Months—It is a good idea to state in the will that the grantee must survive at least nine months in order to inherit under the will. This is because the estate tax return must be filed within nine months and the length of the life is meaningful enough that the person enjoys the gift.

Modern Intestacy

Net Estate—After the decedent’s property is used to pay debts, taxes, funeral expenses and administrative expenses, the remainder (if any) is distributed to the decedent’s heirs.
Probate Assets Only—Non-probate assets such as jointly owned property or insurance proceeds are not affected by intestacy
Statutes Reflect Presumed Intent—The statutes in the various states are created to effect the presumed intent of the testator had he made a will.
More than One State—Because Real Property is probated in the state where it is situated and personal property is probated in the state where the decedent was domiciled, the intestacy statutes of two different states may be applied if the decedent owned real property in more than one state

Distributions

Only Relatives—Only relatives take through intestacy.
Table of Consanguinity—Distributions among family members occur in the order determined by the table of consanguinity.

Lineal Descendants—The lineal descendants (the testator’s issue and descendants of issue) are the first to inherit under intestacy based on class
Collaterals—The colineals will only take through intestacy if no lineal descendants are alive. This includes the parents of the decedent, who takes after the issue of the decedent. If there are no parents, to the siblings.
Downward—The distributions flow downward until the court finds a class of heirs that can take.
By Class—The first class with an heir receives all of the intestate succession divided into equal shares.

Ex. Person dies with three children, the children each get one third and no one else gets anything.

Deceased with No Issue—If a family member predeceases the intestate and does not leave any issue, they receive no share in intestate succession.

Per Capita (per capita with representation)—Unlike per stirpes, the root of the shares is the first living generation to survive the intestate

Determine the first generation of the intestate’s descendants with a living heir. Then begin counting shares at that class. Each living member in that class receives an equal share and each predeceased member that left issue also takes an equal share
Texas, New York, and New Jersey count from the first generation where someone is living which is per capita with representation, but they call it per stirpes which is technically incorrect. The point is make sure that you read the language of the statute.

Per Stirpes –The shares are distributed and divided based on the decedent’s children

Intestate’s children are the root of the distribution process
The shares are divided based on the first generation, meaning that individuals in the class may receive less than other members of the class
Stresses bloodline over the class of beneficiary.

Per Capita at Each Generation—UPC—This is the UPC approach that allows more equal distribution within the classes. It would divide the property so that every member in the same class received an equal share. (It will not be tested)

Find the first generation to survive and distribute in the same way as per capita with representation. After all the shares are in the correct generation, redistribute the shares within the generation so that every member of the class receives the same thing.

Decedent

Son A

treated as though they predeceased at lawSimultaneous Death“no sufficient evidence rule”—If there is no sufficient evidence that either person survived longer than the other (even for a split second) then both persons are treated as though they predeceased the other. Ex. A and B are married. A has family land and B has a family business. A and B die in a car crash. Because of the simultaneous death no sufficient evidence rule, both of their families will take their own property through intestacy. If there was no such rule, both A and B would inherit the other’s property and A and B’s families would end up with the wrong assets.Janus v. Taraseqicz (Bad Tylenol case. The husband and wife died around the same time but there was some evidence that the wife survived by a few minutes)HOLDING. Because they had no children and the wife survived by a few minutes, the wife inherited the husband’s property and both of their properties were passed through intestate succession to the wife’s parents. The husband’s parents received nothing. ChildrenWhole Blood v. Half Blood—There is no way to have a half-child. You can only have a half collateral. Common Law—The half-sibling takes ½ the amount of a full sibling. Mississippi—Uses the common lawMost States—Half and whole bloods are treated the same. Calculating Half-Bloods—Multiply each half-sibling by 2 and each full sibling by 1 and that is how many shares you have. Then each full sibling gets two shares and each half sibling gets one. Ex. A, B, and C are full siblings and D and E are half siblings because they share the same mother as A, B, & C. If A dies intestate, D & E get 1/6 each and B & C get 1/3 each. Adopted Children—Adopted children are treated as blood related children for the purposes of intestate succession. However, if there is no legal adoption, this is not true in many casesEquitable Adoption (Virtual Adoption)—(SOME STATES) If the parents go through the paperwork, but something is incomplete, the court will treat the child as though she were adopted even though the adoption was not fully in compliance with the law. Abandoning Parent—If a child is adopted, they can only inherit through their new parents, not their old parents.Including Through the Parents—If adopted the child cannot even inherit through his natural parents. Hall v. Vallandingham—Court held that since the child was adopted, he could no longer inherit either from his natural parents or through his natural parents. This means that the child could not inherit from his natural grandmother or uncle.