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Wills, Trusts, and Estates
West Virginia University School of Law
Ellis, Atiba R.

WILLS

INTESTACY
· generally
o Property distributes according to Jx intestacy laws
· Descent v. distribution
o Modern approach – no difference
o Traditional approach – descent is how real property passes and distribution is how personal property passes
· Devise v. legatee
o Modern approach – irrelevant distinction
o Traditional approach – individual given land under a will is devisee, personal property is legatee
· Consanguinity
o Lineal – straight line up or down in relation
§ Ex. father à son, grandparent à grandchild
o Collateral – not straight lines (lateral)
§ Ex. cousins, uncles, brothers, sisters of decedent
· Generic intestacy statute
o Property passes as follows:
§ Surviving spouse
§ Children
§ Parents
§ Brothers and sisters
§ Grandparents
§ Remaining next of kin
§ State (if no kin)
ü Escheat – every jx has its limits as to how many degrees it will go to distribute
o W.Va. intestacy order
· Renunciation
o Generally
§ Disclaiming/rejecting a gift an individual is entitled to under a will
§ Treated as if the individual dies before decedent (predeceased)
§ Avoids creditors or estate taxes in many situations because the property an individual renounces will pass to a close relative anyway
o Spousal waiver (elective share)
§ Must be a knowledgeable decision
§ With full and fair disclosure
ü Sophistication of the parties
ü Fairness of the terms
§ Each party is given clear idea of value of the other party’s property
· Per capita v. per sitrpes distribution
o Per capita
§ all descendents take equal shares
§ shares figured by looking at descendents from the same generation
o per stirpes
§ shares of descendents determine by the share his ancestor would receive
§ descendants are not in the same generation
o Examples
§ Per capita distribution – descendants get equal shares regardless of generation

1/3

1/3 1/3
§ per stirpes – look to the generation closest to dec’d w/ at least 1 survivor

1/2 1/2

1/4 1/4

· Halfbloods
o Siblings who share only one parent
o Most states privde that ½ blood takes the same as whole blood
o Some states provide that ½ blood takes ½ of what a whole-blood takes
· Advancements (intesta

ling of decedent – Ø inheritance
o Manslaughter
§ Majority – inheritance distributed to perpetrator
§ Minority – Ø inheritance
· Release of expectancy
o Forfeiture of an individual’s intestate share b/f decedent dies
§ Also counts against the individuals descendants (i.e. his children also forfeit)
o Beneficiary and decedent must exchange consideration
o Ex. $50 jalap given in exchange for release from 250K right to estate is invalid due to nominal consideration (but this is the principle behind a release of expectancy)
EXECTUION, VALIDITY, & COMPONENTS
· Generally
o There is no common law right to a will
o It’s purely statutory, so must comply with the statutes formalities to be valid
o Executor – personal representative named by the testator to administer the estate
· Goals of will statutes
o To effectuate the testator’s true desires
o To protect the family of testator’s