Wills and Estates Skinny
I. Intestate Succession
A. What property is subject to the law of intestate succession?
Property in which the deceased person had an inheritable interest
Problems in Litigation: Joint Property
Joint Tenancy in Common- when one party dies without a will, then their half will be inherited pursuant to the law of IS
Joint Tenancy with Right of Survivorship- no inheritable interest. Upon death, it becomes property of other person in JTWROS, and is not subject to creditors. Courts will not allow parole evidence to show contrary intent. Note: JTWROS also defeats a will.
Life insurance proceeds- paid to beneficiaries, not part of the decedent’s estate unless the estate is his beneficiary
Safe Deposit Box- Owner must purposely fasten survivorship rights to give ownership.
B. Governing Law
MS changed CL principle that said property was inherited pursuant to domicile
Personality (No Ancillary Administration)
91-1-1 says personality located in the state of MS will be inherited pursuant to the law of MS, no matter where the decedent was domiciled
Additionally, if MS resident dies intestate owning personality situated in another state, MS law will control, if the other state follows the CL rule.
Ownership of land is controlled by the law of the state where it is located
Intangible Personal Property Problems
Money in bank in MS, MS law controls
Stock in Corporation in MS, MS law controls
Money owed by MS residents, part of a business operating in MS- MS law controls
Debts in general are controlled by the state where the debt operates or originates or creditor is at.
C. Heirs at Law
When are heirs determined?
At the exact moment of the decedent’s death
UPC says you must survive decedent by 5 days to inherit, MS doesn’t have this
Simultaneous Death Act: Husbands and Wives who can inherit from each other and die in situation where you can not tell who died first– where proof is insufficient, property will be disposed of as if he or she had survived.
Posthumous Heir Rule
Heirs at law who would have been conceived but not yet born at the moment of the decedent’s death are posthumous heirs.
Rule: A person is “in being” for the purposes of inheritance from the moment of their conception.
Relatives by Consanguinity (Blood Relatives)
2 categories: Lineals and Collaterals
Lineals- parents, grandparents, great-grandparents (ancestors); children, grandchildren (descendants)
Collaterals- brothers and sister, aunts and uncles, nieces and nephews, and cousins (somewhere up the line common pair of ancestors) [lots more of these than lineals].
4 groups of inheritors are created: (note if there is even one person in group 1, they get everything and it never goes to group 2, etc.)
Group 1: surviving spouse (via § 91-1-7), children, and predeceased children survived by children
Inquiry: 1) Was D married at time of death? (Y, set aside a share); 2) How many children did D have at time of death (set aside); 3) Did D have any children who predeceased him who were survived by children (set aside share for child pre deceased) [who themselves outlived the decedent].
Rule of Representation: If your parent would have received an inheritance had he been alive at the key moment, then you and your brothers and sisters will share what your parent would have inherited. This keeps going.
Hypo: D died (wife had predeceased), survived by 5 children. 2 other children died before D did (F and G), F had one child, G had 3. So the estate will be divided into 7 parts. F’s 1/7 will go to her descendants; G’s 1/7 will go to her descendants, divided by three.
It doesn’t matter if all the represented children bear the same relationship (ex. grandchildren), the legislature has not changed the rule to the majority of jurisdictions who would consider this.
Group 2: Only if there is NO ONE in Group 1, then go to Group 2. Decedent’s father, mother, brothers, sisters, and children of predeceased brothers and sisters, who survive.
Hypo: D survived by brother. 2 sisters predeceased D and were survived by children. Court says the estate will divide into 3 shares, 1 to brother, 1 to each sister, to be divided by each sister’s children.
Group 3: Only if there is no one in Group 1 or 2, then look to group 3, property will be inherited by grandparents (4 possible people), uncles, and aunts. [No mention of predeceased uncles & aunts or their kids].
NO Right of Representation (for subsequent kids of uncle/aunt)–the legislature has never provided for this.
§ Group 4: If there is no one in any of these groups, there may be many other collateral relatives. The property will be inherited according to the degrees of kinship according to the civil law (Roman Empire Chart). Never go unless no one in Groups 1-3.
§ 91-1-5: Says there shall be no difference between relatives in full and half blood except that relatives of full blood shall inherit to the exclusion of the full bloods o the same degree.
Half-bloods will not inherit if the decedent was survived by a full-blood relative of the same degree.
The half-blood will not inherit if the decedent was survived by a relative whose inheritance position is equal to that of a full blood relative of the same degree.
Hypo: D’s father and mother inherit equally with full-blood brothers and sisters. Therefore, a D’s parents will inherit to the exclusion of a D’s half-sibling.
Right of Representation – half-blood’s inheritance may be defeated by the operation of representation.
Hypo: D had full-blood sister, A, and half-blood sister, B. A predeceased D, but is survived by child C. C takes by right of representation that which A would have taken. Since A would have taken to the exclusion of B, her child C, takes to the exclusion of B.
Percentage of Blood is irrelevant
Half-bloods do defeat in some situations:
Half-blood brother will inherit before a full blood uncle or aunt.
Half-blood uncle will inherit before a full blood 1st cousin.
Half-blood 1st cousin wi
If a person dies intestate and there are no heirs, the property goes to the state
Only applicable in intestate situations
Doctrine of Advancement was created at CL and continued today
If intervivos gifts are given by a parent with the intention of being an advancement (a part of their inheritance), then those children receiving advancements will not be able to inherit anymore from the decedent unless they are willing to bring the value back (not title) into the Hodgepot estate. Then each child will take that fraction of the amount inherited, and the children with advancements will get this less what they have already gotten. If they don’t, they can keep it and forego the inheritance.
This has no application to surviving spouse
Burden of Proof for whether gifts were meant to be advancements: on children who didn’t get advancements to prove. Some jurisdictions say land and money presumptively are intended to be advancements.
E. Loss of Right to Inherit
91-21-25: Willfull cause of death
Anyone who willfully causes or procures the death of a person may not inherit from that person (gets someone else to do it).
Heirs who attempt to prove this have preponderance of evidence BOP
Conviction by law is sufficient-manslaughter this is not enough?
Statute says will not inherit, but their children still can through representation
This applies to beneficiaries of life insurance policies
This applies to joint tenancy with right of survivorship
Although there is no statute, MS will deny a surviving spouse the right to inherit upon a finding of extreme misconduct before a MS court
Takes a showing of Total Abandonment of a Marriage:
Would represent a “Bigamous marriage” (doesn’t have to be ceremonial, like the former CL marriage)
Statute is unclear
Repeated Acts of Adultery
No, this would open floodgates–they could make a will if they felt that strongly
Exception: parent of illegitimate child can’t inherit if didn’t openly support (child support payments)
Contracting the Right Away
Requirements for these type of contracts:
1) fair and adequate consideration
2) parties must be competent to contract (no minors or NCMs= Non-Compis Mentis (incompetent))
3) [most important] terms must be clear about what is being contracted away
2 categories of Contracts: