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

Wills and Estates


Fall 2018



Parties Who Receive Deceased’s Property

Deceased dies with valid will

Beneficiaries named in the will

Deceased dies without valid will

Heirs set forth in the applicable intestacy statute

If there are no heirs, the deceased’s property escheats to the state

Intestacy: Law Governing—[MS § 91-1-1] 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.
Historical Development of Descent and Distribution

Male heirs inherited real property to exclusion of female heirs unless no male heir existed
If there were 2 or more males who were equally related, the older male inherited all land
If there were no male heirs and several female heirs, the females shared equally

Protection of the “Surviving” Spouse

Protection at Common Law – Real Property

The surviving spouse was not considered an heir, but CL gave each spouse a martial estate in the lands of the other spouse
Widows—Dower Rights—life estate in 1/3 of the real property owned by the husband during marriage, even if property wasn’t owned by the husband the time of his death
Widowers—Curtsey Rights—life estate in all the wife’s property, if a child was born to the marriage
120 Hour Rule—UPC § 2-104 and SC § 62-2-104

Most jurisdictions impose survival period—heir must outlive the intestate by a statutorily mandated length of time before being entitled to inherit
UPC—The heir must outlive the intestate by 120 hours (five days)

If any heir survives the intestate but dies prior to the expiration of the survival period, the intestate’s property passes as if the heir had actually predeceased the intestate

Protection at Common Law – Personal Property—Spouse was allowed to receive an outright interest in the other spouse’s personal property—husband gained ownership of wife’s personal property immediately upon marriage but wife had to survive husband to receive her share [size of share depending on if husband left surviving descendants] Modern Law

Dower and Curtsey have been mostly eliminated but the majority of states make the surviving spouse an heir under their descent and distribution schemes
Legislatures have been increasing the size of the surviving spouse’s share, especially if the deceased spouse does not have surviving descendants who are not also descendants of the surviving spouse
States have also enacted specific marital property laws

Marital Property Statutes—

Separate Property—Even if deceased left a will, a surviving spouse can elect to take against the will [she can obtain a share of the estate even if nothing is left to her under the will] Community Property—The surviving spouse is protected against disinheritance because the surviving spouse already owns an undivided ½ interest in the martial property

Homestead and personal property exemptions are also available in most states
Homestead Exemption—The surviving spouse may be able to occupy the homestead free from the possessory claims of the true title holders as well as retain it exempt from the claims of the deceased spouse’s creditors [these exemptions vary greatly from state to state] Personal Property Exemptions—The surviving spouse and minor children are frequently granted right to retain certain personal property free from the claims of creditors. In some instances, their claim will be superior to the claims of will beneficiaries to whom the items were left
Mississippi Statute—Property Exempt From Sale—[§ 91-9-19] The property, real and personal, exempted by law from sale under execution or attachment shall, on the death of the husband or wife owning it, descend to the survivor of them and the children and grandchildren of the decedent, as tenants in common, grandchildren inheriting their deceased parent’s share; and if there be no children or grandchildren of the decedent, to the surviving wife or husband; and if there be no such survivor, to the children and grandchildren of the deceased owner. Where the surviving husband or wife shall own a place of residence equal in value to the homestead of the decedent, and the deceased husband or wife have no surviving children or grandchildren of the last marriage but have children or grandchildren of a former marriage, the homestead of such decedent shall not descend to the surviving husband or wife, but shall descend to the surviving children and grandchildren of the decedent by such former marriage, as other property.

Mississippi Statute—Partition of Surviving Spouse’s Inheritance—[§ 91-1-23] Where a decedent leaves a widow to whom, with others, his exempt property, real and personal, descends, the same shall not be subject to partition or sale for partition during her widowhood as long as it is occupied or used by the widow, unless she consent. Likewise, where a decedent leaves a widower to whom, with others, her exempt property, real and personal, descends, the same shall not be subject to partition or sale for partition during the period of his being a widower as long as it is occupied or used by the widower, unless he consent.

Intestate Distribution

After the decedent’s property is used to pay debts, taxes, funeral expenses, and administration expenses, the remainder, if any, is distributed to the decedent’s heirs

Non-probate assets, such as life insurance proceeds and survivorship bank accounts, are not affected

Intestate Succession Laws

Determined by state law called the intestate succession statute

Statutes write the will the decedent failed to make
Intestacy statutes vary substantially from state to state
More than one state’s intestate laws may come into play

Sally lives in Nebraska where she owns a home, has a driver’s license, and pays income tax. She owns a cottage in Wisconsin and a condo in Florida.

If Sally dies intestate, Nebraska’s statutes will determine how and by whom her house and personal property are inherited. Wisconsin’s statues will decide who receives the house, and Florida’s law, the condo.

Mississippi Statutes

Realty—[91-1-3] When any person shall die seized of any estate of inheritance in lands, tenements, and hereditaments not devised, the same shall descend to his or her children, and their descendants, in equal parts, the descendants of the deceased child or grandchild to take the share of the deceased parent in equal parts among them. When there shall not be a child or children of the intestate nor descendants of such children, then to the brothers and sisters and father and mother of the intestate and the descendants of such brothers and sisters in equal parts, the descendants of a sister or brother of the intestate to have in equal parts among them their deceased parent’s share. If there shall not be a child or children of the intestate, or descendants of such children, or brothers or sisters, or descendants of them, or father or mother, then such estate

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—At CL, you just have to survive AT ALL

Does the UPC 120 hour rule solve the problem created by the “no sufficient evidence rule” of the UPC
Janus v. Tarasewicz [bad Tylenol case—husband and wife died around same time but there was some evidence that wife survived by few minutes]

Holding—Because there was no children and wife survived by few minutes, wife inherited husband’s property and both of their properties were passed through intestate succession to wife’s parents. Husband’s parents received nothing

Negating Inheritance—Barred heir is treated as if he disclaimed his intestate share, which means he is treated as having predeceased the intestate

Ancestors and Collaterals

Ancestors and Collaterals—If none of the intestate’s descendants survive, the intestate’s ancestors and collaterals will inherit the balance of the intestate’s probate property that does not pass to the intestate’s surviving spouse

If both parents survive intestate—Most modern intestacy statutes provide that an intestate’s parents divide the probate estate that does not pass to the surviving spouse if the intestate died without surviving descendants. In a few states, the parents and siblings share the intestate’s property

Jurisdictions are in agreement that if the intestate dies without a surviving descendant or parent, the balance of the probate estate not passing to the surviving spouse passes to the siblings or their descendants

Grandparents, Second-Line Collaterals, & More Distant Relatives

If the intestate dies without a surviving descendant, a parent, or a first-line collateral relative, the intestate’s property not passing to the surviving spouse passes to grandparents, second-line collaterals, and perhaps to more distant relatives

Two methods for determining intestate’s heirs in this situation—

Parentelic System—Search on one side of the family until an ancestor, or a descendant of an ancestor, is found

The intestate’s probate estate not passing to the surviving spouse is divided into two halves [moieties]—one of these portions passes to the intestate’s maternal grandparents and the other portion to the paternal grandparents
If both grandparents on the same side of the family are deceased, the entire moiety passes to the intestate’s aunt and uncles and their descendants in that family line. If none of those descendants survive, that portion of the estate is divided among the great-grandparents in a similar manner.
UPC doesn’t permit indefinite tracing of heirs—if no heir is found at a certain statutorily defined level, no further search for heirs is conducted and the property escheats to the government