Decedent
Testate (with will) Intestate (w/o will)
Executor (appointed by will to carry out will) administrator
Devise (real prop) Descends (real prop)
Bequest (personal prop) Distributed (personal prop)
Beneficiaries Heirs
Introduction to Estate Planning
1. Wills, testaments, rights of inheritance, and successions are all created by law and can be limited, conditioned or abolished by legislatures
A. Hodel v. Irving – statute can limit the right to pass by intestacy but not by both will and intestacy
2. General definitions
A. Testator = person writing the will
B. Executor = person named in will to be representative of will
C. Administrator = not named in the will; statute creates first order of preference
D. 2 kinds of gifts:
I. Devise = real property
II. Bequest = personal property
E. Descendant – person related to an intestate or to a claimant to an intestate share in the descending lineal line
F. Succession – process of becoming beneficiary entitled to the property of a decedent
I. Intestate succession – occurs when decedent leaves no valid will, so prop passes to those named in state statute
a. Testate = die with a will
b. Intestate = die without a will
G. Heir – person entitled by statute to the land of the intestate
I. Prospective heir – heir who may inherit or may be excluded
a. Heir presumptive – a person who may inherit if the potential intestate dies immediately but who will be excluded if relatives closer in relationship are born
b. Heir apparent – one who is certain to inherit unless excluded by a valid will
Probate
1. Probate – Courts determination to officially transfer title in property
A. Passes under will or intestacy statute
I. When probating, must notify all parties named in will or heirs that could inherit had the decedent died intestate
II. Principle reason to probate is to clear title
B. What state probates? – In one dies intestate the state you die in probates all property w/I that state but if property is not in the state of death you must probate property w/I the other state.
I. Domicile governs personal property
II. Location governs real property
C. Process of Probate
I. Steps
a. Opening the estate by offering the will for probate
b. Collecting the decedent’s assets
c. Paying any family allowance and setting aside homestead and exempt personal property
d. Paying creditor claims and tax bills
e. Distributing assets of the estate upon the probate court entering a decree of distribution
D. Contesting a will
I. Any interested person may contest the will
II. 58 O.S. § 61: Causes for contesting a will after probate
a. Must contest w/I 3 months of will being admitted to probate
b. After 3 months probate is final and only infants or insane could contest w/I 1 year of removal of disability
III. 58 O.S. § 41: Proceedings on contest
a. To contest must file written grounds of opposition and serve copy on the petitioner and other residents of county interested in the estate; must show one of following:
i. That a will of a later date than the one proved by the decedent, revoking or changing the will, has been discovered, and is offered; or
ii. That some jurisdictional fact was wanting in the probate; or
iii. That the testator was not competent, free from duress, menace, fraud, or undue influence when the will allowed was made; or
iv. That the will was not duly executed and attested.
IV.Representatives responsibility:
a. Collect assets, Inventory property, File inventory with the court, Conserve assets for distribution, Pay the debts, Pay taxes (they become personally liable for estate and income taxes), Account to court and make distribution
E. If not probated there is not statute of limitations to probate a will
I. If a will is probated there is a short window in which a more recent will could be probated
2. Non-Probate
A. Passes through another instrument effective before death
I. Joint tenancy property
II. Life insurance
III.Contract with payable upon death provision
IV.Interests in trust
B. Advantages of a revocable trust
I. If person becomes incompetent, then trustee can manage property
II. Much easier to distribute property to beneficiaries
III.No attorney fees
IV.Not public documents
V. Saves probating on land in other states
C. Disadvantages
I. Attorney’s charge more
II. More administrative costs
III.Must file income tax returns for trust
IV.More difficult to deal with property during life
V. Will not save on taxes
3. Professional responsibility
A. In OK privity is dead for wills
I. The beneficiary of a will may sue attorney for malpractice in negligence for improperly drafting the will instead of privity
Intestacy
1. Intestacy – How to divide
A. INCLUDE INTESTANCY LAW
B. Spousal Share
I. Marital v. Non Marital
a. Separate prop – prop brought into marriage, income from non marital, gift or inheritance
b. Marital prop – all other property or separate prop that has been comingled w/ marital
II. Simultaneous death act
a. Burden of proof on individual who want to prove either simultaneous or not
b. If 2 die simultaneously then law treats each as if they outlived the other.
c. Theory have each property passed to their own family
d. 2 theories: brain function or breathing/blood circulation
e. UPC – must survive other by 120 hours (5 days)
f. 58 OKST 1005 Uniform Simultaneous Death Act
i. There is a presumption that if the same accident killed both spouses, they died at the same time
ii. When death is simultaneous, both spouses will be determined to have predeceased one another
iii. Anyone who wants to challenge must show survival by clear and convincing evidence
III.2 standards can be used to determine death:
a. irreversible cessation of circulatory and respiratory functions or
b. Shares by Descendants
C. Right of representation – the estate is to be divided into as many equal shares as there are surviving heirs in the nearest kinship and deceased persons in the same who issue left (84§213)
I. children and issue of children take remainder after spouse’s portion is set aside
II. Issue of children “represent” the dead child and take their share; 2 ways to divide:
a. Strict per stirpes: divide property into as many shares as there are living children of the designated person and deceased children who have descendants living (always divides at child level)
i. Shares are always determined at the first generation level, even if no living takers at that level
b. Modern per stirpes: (OK) divide shares at level where descendants are still living
i. Each descendant at the fist level at which there are living takers takes one share, and the share of each deceased person at the generational level is divided equally among the descendants at the next generational level
(i) H
(ii) / | \
(iii)1 2 3
(iv) | | \
(v) A B C
(vi)If 1 dead divided 50 50 with 2 and 3
(vii) If 1 and 3 dead 2 gets ½ B & C get 25% each
(viii) If 1, 2, 3 all dead A, B, C divide equally under modern
III.At each level you divide the estate by the number of deceased w/ issue and number alive to determine shares
a. Ie. If A dies w/ brothers 1, 2, 3; 1 is dead with kids B and C. = 2 & 3 get a 1/3 and B & C get 1/6
IV.Negative disinheritance – not leaving property to someone but merely expressing the desire to not leave prop to an individual
a. Usually not valid; the only way to disinherit someone is to leave all property to someone else
i. In order to disinherit a child, you must dispose of ALL of your property; other
ildren of the decedent and issue of any deceased child of the decedent by right of representation, or
b. if there is no surviving issue, to the surviving parent or parents of the decedent in undivided equal shares, or
c. if there is no surviving issue nor parent, in undivided equal shares to the issue of parents by right of representation, or
d. if there is no surviving issue, parent, nor issue of parents, but the decedent is survived by one or more grandparents or issue of any grandparent, half of the estate passes equally to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of any paternal grandparent if both paternal grandparents are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation and the other half passes to the maternal relatives in the same manner;
i. but if the decedent is survived by one or more grandparents or issue of grandparents on only one side of the family, paternal or maternal, the entire estate shall pass to such survivors in the manner set forth in this subsection, or
e. if there is no surviving issue, parent, issue of parents, grandparent, nor issue of a grandparent, the estate passes to the next of kin in equal degree;
IV.If the decedent leaves no spouse, issue, parent, issue of parents, grandparent, issue of a grandparent, nor kindred, then the estate shall escheat to the state for the support of the common schools; and
V. For the purpose of this section, the phrase “by right of representation” means the estate is to be divided into as many equal shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left issue who survive the decedent, each surviving heir in the nearest degree receiving one equal share and the equal share of each deceased person in the same degree being divided among his issue in the same manner.
VI.The word “issue” means lineal descendants.
VII. Degree of kindred – established by the number of generations, each generation is a degree
VIII. Aliens – may take same as any other citizen
3. Inheritance of illegitimate kids (child born out of wedlock)
A. All rights to inherit from mother as any other kid
B. Can inherit from father if meet any of 4 requirements: 84 O.S. § 215
I. the father, in writing, signs w/ witnesses to be the father of child
II. father and mother later marry and father acknowledges the kid to be his
III.the father publicly acknowledged such child as his own, receiving it as such, with the consent of his wife, if he is married, into his family and otherwise treating it as if it were a child born in wedlock, OR
IV.the father was judicially determined to be such in a paternity proceeding
C. If illegitimate child dies intestate and the father did not meet one of 4 above requirements then passes to mother
4. Surviving spouse get car of deceased and if more than one car spouse gets to choose which one
