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

WILLS AND ESTATES
FALL 2004, Weems

I. Overview
a) NO ONE receives anything from a dead person until ALL debts to creditors are satisfied
*heirs are NOT required to pay the debts of the deceased BUT they do NOT inherit until these debts have been satisfied
*when satisfying these debts, personal property should be entirely before using the real property
*there are exceptions to this such as “homestead exemption”
b) the MOST significant limitation on testamentary power is the surviving spouse limitation (p.28)
c) until a will has been probated it is nothing but a piece of paper and is NOT binding on anyone
*a will does NOT have to be probated BUT once a will has been probated it MUST be administered
d) when a will is read, someone may be pissed off and will “contest the will”
*a will contest is simply a suit over the validity of the will
*these suits are NOT very professional, the parties are usually family and no holds are barred
e) you must be very careful when drafting a will to make sure that you comply with all requirements b/c if it gets to a will contest it will be closely scrutinized
f) difference b/t the way CL England viewed real property and personal property
*land was the ultimate possession, MUCH more valuable than personal property
*this discrepancy STILL exists in many jurisdictions including MS
g) when a person dies, the property/title transfers immediately
*except in a case where personal property is given in a will to B subject to a life estate given to A although property does transfer to B immediately
*although the property transfers immediately, this does NOT mean you will always have immediate access to it, it may be subject to creditors or have to go through an administration process

II. Intestate Succession(decedent dies w/out a will)
1. Property Subject to the Law of Intestate Succession
a) any property in which the decedent had an inheritable interest is subject to law of Intestate Succession
b) tenancy in common creates NO problem, but a joint tenancy w/ right of survivorship is NOT subject to the law of Intestate Succession
*the decedent’s share goes to the other joint tenant b/c the decedent had NO inheritable interest
c) lawyers continue to attack this theory b/c under this theory creditors may get left out in the cold even though before the debtor died the debtor had full right to the valued of the joint tenancy, when the debtor dies the property goes to the joint tenant w/out anything being carved off for the creditors
d) Cooper v. Crabb: couple had a bank account and its terms CLEARLY stated that it was a joint account w/ full right of survivorship
*creditors brought suit saying you should look to intent of decedent
*RULE: if the terms of the account clearly state that it is a joint account w/ full right of survivorship, that is conclusive as to intent and evidence to show a contrary opinion is inadmissible
e) a joint tenancy w/ full right of survivorship trumps the law of intestate succession AND trumps a will
*same is true for beneficiaries on an insurance policy, if you want it changed you better change it on the policy

2. Governing Law
a) at CL a person’s personal property, NO matter where it is situated, is inherited pursuant to the law of the domicile
*at CL a person’s real property is inherited pursuant to where the land is located, this principle goes back to feudal times b/c countries refused to turn over land in their country to the laws of another country
b) this CL principle as to personal property allowed the administrator to go to another state and commence an ancillary administration and bring the personal property back to be distributed
c) MS changed the CL w/ §91-1-1: MS’s law of intestate succession will govern the inheritance of the property situated in MS (both real property & personal property)
*this eliminated the need for ancillary administrations in MS by out-of-state administrators
d) this effected wills as well b/c at CL a will had to first be probated in the state of domicile of the deceased, the MS statute said “No it does NOT”
e) one problem for MS was intangible personal property…
*MS said that MS law controls for money held in banks in MS
*Ewing v. Warren: lady in MN died with some stock in a MS corporation, MS Sup Ct said that MS law applied
*Jahier v. Rascoe: lady dies intestate in Italy, she had a loan business in MS, MS Sup Ct said MS law of intestate succession applied b/c money was in MS

3. Right of Inheritance
a) determined at the moment of the decedent’s death

4. Posthumous Heirs
a) “in being” means not dead, but doesn’t mean quite alive
b) posthumous heirs are heirs-at-law who have been conceived but are NOT born at the moment of decedent’s death
c) they are considered “in being” at the moment of conception BUT they MUST survive to inherit

5. Right of Representation
a) when a person’s parents would have taken an inheritance from a decedent’s estates had the parents been alive, the children will split the estate
b) the right of representation is given to two groups of people:
1) children of the deceased child of decedent (grandchildren of Δ)
2) descendants of the brothers and sisters of the decedent (nephews/nieces of Δ)
c) MS follows representation as closely as it can…
*Rodgers v. Rodgers:
Δ
A B
C D E F G H
-all six of these people are Δ’s grandchildren
-the majority of jurisdictions would distribute per capita BUT MS distributes per stirpes

6. MS Relatives by Consanguinity (Blood):
GGP
GP lineals
collaterals P
cousins aunt/uncle Δ brothers sisters
C
GC
GGC
*w/ collaterals, somewhere up the line they were ancestors
*w/ lineals, those up the line are ancestors, those down the line are descendents
*an anscestor is someone who it they had not lived, the Δ would NOT have lived

a) creates four groups of inheritors…
Group I. Surviving Spouse
Children “In Being”
Deceased Children’s Offspring: the decedent has a child that dies before the decedent dies but the child had offspring… they are entitled to their parent’s share of the decedent’s estate (right of representation)
Group II. Father, Mother, Brothers, Sisters, Children of Brothers & Sisters Who Survived Their Parents (right of representation)
Group III. Grandparents, Uncles, Aunts
Group IV. Degrees of Kinship: must consult chart ONLY for this

7. Half-Bloods
a) MS §91-1-5: there shall be NO difference b/t relatives of the full-blood and the half- blood EXCEPT relatives of the full-blood will inherit to the exclusion of half- blood relatives
*so actually there is a VERY big difference
b) MS Wrongful Death Statute…
1) the proceeds from a wrongful death action go to the wrongful death beneficiaries, NOT part of decedent’s estates
2) the people who will inherit under the law of intestate succession are the same people who will inherit as wrongful death beneficiaries, INCLUDING half-bloods who can share just as full bloods in the proceeds of a wrongful-death action

8. MS Uniform Simultaneous Death Act §91-3-5
a) it does NOT matter how soon inheritor died after decedent, the inheritance is a vested part of the inheritor’s estate
b) HYPO: if man and wife are in car accident and he dies in wreck and she dies in ambulance on way to hospital, the wife inherits part of his estate and then her estate is inherited by children
c) In re Estate of Miller: man has child w/ first wife, then marries again, shoots second wife and then shoots himself but her would did not kill her instantaneously so the court does not know who died first
*his estate went to his child BUT if it could have been proven that he died first then she would have gotten a share in his estate

9. Adoption
a) MS §97-17-13 Covers Fours Situations:
1) Right of Adopted Child to Inherit from Adoptive Family
-child SHALL inherit from and through the adoptive family and brothers and sisters
-adopted children may NOT inherit from more distant relatives such as cousins, nieces, nephews like the natural children can
2) Right of Adoptive Family to Inherit from Adopted Child
-adoptive family can inherit from adopted child just as if the adopted child was a natural child
3) Right of Adopted Child to Inherit from Natural Family
-the natural family may NOT inherit by and through the adopted child
4) Right of Natural Family to Inherit from Adopted Child
-this issue was not addressed by the legislature and instead has been left up to the courts
b) what has the court decided on the issue?
*Alack v. Phelps: court said that if the child had the right to inherit before the adoption and the statute did nothing to terminate this right, the child CAN inherit from the natural family
-the family argued the “both ways” test saying that since they can NOT inherit from the child, the child should NOT be able to inherit from them
*the court found NO merit to this argument
c) whose law controls inheritance by adopted children?
*Estate of Jones: when a decedent dies in MS and his or her property is situated in MS, an adopted child’s rights of inheritance will be controlled by MS law and NOT the law of the state where the adoption took place
-in MS, except for half-bloods, if a person has a right to inherit by intestate succession, then they have a right to bring a wrongful death action
d) half adoptions…
-occurs when a child is adopted by their step-parent following the divorce of their natural parents (ex. Bill Price)
-this half-adoption does NOT effect the child’s right to inherit from their natural parents

10. Illegitimates
a) at CL, illegitimates had NO right to inherit whatsoever
b) originally MS law said that illegitimates COULD inherit from their mother and her kindred but NOT from their father (b/c this would open the door for fraud)
c) MS §91-1-15: if there has been an adjudication of paternity or legitimacy before the death of father OR there has been an adjudication of paternity AFTER the death of the father (suit to determine heirship), the illegitimate MAY inherit
*Whit v. Mitchell: a lady died w/ a $2M estate and had a brother that died before her and a surviving sister; a couple of years later a man comes forward and says he is the illegitimate son of the dead brother
-§91-1-15 created a 3 year catch up period after its enactment which allowed claims that existed prior to its enactment to be brought under the statute
d) the suit to determine heirship is subject to a 90 day SOL that runs after the first notice to creditors OR if the estate is not opened the illegitimate must bring suit w/in one year
*the MS Sup Ct has ruled that the personal rep of the estate has fiduciary duty to the heirs and if the personal rep knows there is a person w/ existing claims, the personal rep MUST provide them w/ notice
*the personal rep MUST bring suit to determine heirship or else the 90 day SOL does NOT begin to run
*in a suit to determine heirship, either side is entitled to a blood test/DNA test even if it means exhuming the body
*if the illegitimate child has died, the mother can NOT inherit the illegitimates’ portion of the deceased father’s estate
e) father CAN inherit from illegitimate child IF he openly treated the child as his OR did NOT fail to openly support the child
f) those people who can inherit can bring a wrongful death action and share in the proceeds
g) most important aspects of illegitimates:
1) the legislature has provided illegitimates the right to bring suit to determine heirship after the father dies
*there is a 90 day window in which the suit must be brought BUT the court has placed the burden on the personal representative NOT the child
2) courts have been forgiving of children who fail to bring suit to determine heirship timely
*but child MUST comply w/ 1 year SOL

11. In-Laws
a) those people who are only related to the decedent through the decedent’s spouse (ex. mother-in-law, father-in-law, etc.)
b) these people have NO right whatsoever to inherit from the decedent

12. Non-Resident Aliens
a) at CL, non-resident aliens could NOT inherit land in England
b) by statute, this remains the law in MS w/ a few exceptions
*DeTenorio v. McGowan: MS man went to Honduras where he met a woman, got married, and lived there until he died, the man had land in MS upon which oil had been discovered; the widow claimed it as hers but the siblings of the man claimed it as theirs due to her status as a non-resident alien
-the 5th Circuit awarded the land to the siblings
-there is a method by which the widow could pursue a remedy established in a treaty b/t US, Honduras, and other nations, however, the SOL had run out
c) Weems: just know there are ways around this

13. Escheat
a) if a person dies intestate w/ NO heirs at all, MS gets the land

14. Advancements
a) has no effect on surviving spouse, this only applies to children of the decedent
b) if decedent makes an inter vivos gift to children C & D that was intended by the de

decedent owes lots of money BUT the law gives creditors the right to open an estate
*the only way a creditor can have a debt satisfied is by making a claim against the decedent’s estate and the estate does NOT exist until administrator is appointed
*creditors MUST wait 30 days for the family to open the estate, and if they do not then the creditor can open it
-the sheriff is usually appointed administrator

3. Administrator’s Oath, Bond, and Duty
a) the oath is in the statute and binds the administrator
b) a performance bond is posted by the administrator in the amount of the estate’s personal property
*it is NOT to bind the administrator b/c they are bound by their oath, the purpose of the bond is to bring in 3rd parties who will be liable for the value of the personal property
*insurance company will write the bond saying that the insurance company promises to pay if the administrator does NOT fulfill their duties by acting wrongly and causing a loss to the estate
-the insurance company will cover the loss then go after the administrator themselves
*this protects heirs and creditors
*the bond MAY be waived if…
1) personal administrator is sole heir
2) parties agree to it
c) administrator has a general negligence duty to “behave as a RPP would under the circumstances”

4. Administrator’s Attorney
a) administrator MUST have an attorney UNLESS the administrator is an attorney
*the selection of the lawyer is totally up to the administrator b/c the lawyer is technically not representing the estate only the administrator
b) lawyer is paid from the estate
*administrator requests the chancellor set an amount payable to the lawyer and set an amount payable to the administrator
c) most lawyers agree to whatever fee the chancellor sets, but you CAN set an hourly rate if the administrator agrees to it and the chancellor approves it

5. Temporary Administrator
a) when the appointment of the regular administrator must be delayed for some reason, it may be necessary to appoint a temporary administrator

6. Administrator Ad Litem
a) this type of administrator is appointed when the estate is opened up only to defend or to bring a lawsuit

7. County Administrator
a) after 60 days if no one has been appointed then the county administrator will be appointed
b) this DOES NOT HAPPEN b/c sheriff is appointed by default

8. Sheriff as Administrator
a) appointed by last resort when no one else qualifies

9. Removal of Administrator—Misconduct
a) administrator can be removed for misconduct at the discretion of the chancellor BUT the party requesting the removal MUST supply some evidence of misconduct
10. Removal of Administrator—Other Causes
a) occurs when someone applies to be administrator who has a superior claim than the party already serving as administrator

11. Resignation of Administrator
a) administrator can resign but MUST go through an official procedure w/ the chancellor

12. Administrator de bonis non
a) term used to describe the successor to an administrator who has been removed or resigned

13. Estates to be Administered
a) usually an administration has nothing to do with the real property of the decedent
b) debts are paid from the personal property of the decedent UNLESS there is not enough personal property to satisfy the debt, then real property may be used

14. Inventory and Appraisal
a) administrators get possession of personal property so if you get a dishonest administrator they may steal the property of the estate
b) MS statute appoints three appraisers that inventory and value the personal property of the estate and this is what the administrator becomes responsible for
*this does NOT take into account money in a bank
c) this can be expensive so if good cause can be shown, the chancellor can decide no appraisal is needed, effectively waiving appraisal
*although there is no statute or caselaw to support this
d) just file a petition w/ the clerk that inventory & appraisal be waived

15. Setting Aside Exempt Property
a) statute allows for certain personal property to be set aside, totally exempt from creditors
b) it does not matter if the estate is solvent or insolvent—meaning that the estate’s debts are larger than its assets

16. Widow’s Allowance
a) old MS statute allowed provisions for the widow and children for one year to be set aside after the decedent’s death
*this amount was paid to the widow regardless of how much money she had
b) the legislature amended the statute to include widowers by replacing the word “wife” w/ “spouse”

17. Notice to Creditors
a) 3 main purposes of administration:
1) provide a mechanism for assets to be gathered together
2) provide a mechanism for net estate to be distributed
3) provide a mechanism whereby debts are identified and paid
b) creditors have the first claim on the assets of an estate w/ very few exceptions
c) notice is provided of decedent’s death:
1) creditor has 90 days to probate their claim
2) if determined to be valid it is paid or if it is disputed then there is a hearing
3) claims NOT probated in that time are barred
d) MS law for providing notice to creditors:
1) administrator must make a diligent search and inquiry to see who the decedent owed money to