
Below is an abridgment of five other articles posted during the Fall 2024 semester.
- Freedom of Disposition
- The Default Estate Plan: Intestacy
- Execution of Wills
- Revocation of Wills
- Will Components
Freedom of Disposition
Freedom of Disposition refers to the power to transmit property at death. American law is fairly unique in that it allows, rather than regulates how an individual’s property is divised upon passing. Of course there are exceptions, but this semester is to focus on how these principles function generally.
Probate and Nonprobate Property
Each county has a court dedicated to administration of a decedent’s estate. If property is conveyed through a will or intestacy (no will and administered by the state) it is called probate property. Will substitutes and nonprobate transfers have become common because going through the court can be time consuming and expensive. If property passes through one of these mechanisms, it is called nonprobate properpty. Examples include an inter vivos (during life) trust, pay-on-death or transfer-on-death contracts, life insurance, and joint tenancy.
The purpose of probate is to: (1) show evidence of the transfer of title to new owners, (2) protect creditors by providing procedures on howh debts will be repaid, and (3) distribute the remainder of the decedent’s property to those who the decedent intends to receive the property.
Terminology
- Personal Representative: is a fiduciary who is responsible for collecting an inventoring the decedent’s property.
- Testate: to die with a will
- Executor: A person named in the will to execute the terms of the will
- Intestate: to die withou a will
- Administrator: A person named by the state to administrate over the estate, typically a surviving spouse, children, parents, siblings, or creditors.
- Will or testament: a document describing how the deceased wishes their assets to be conveyed.
- Devise: to transfer real property to devisees (those who receive)
- Bequeath: to transfer personal property to legatees (those who receive).
- Heirs: persons designated by the statute to take the decedentats intestate property. Only identifiable at death. Before death, they are called heirs apparent
The Default Estate Plan: Intestacy
To die with a will is to die testate. Thus, to die without a will is to die in intestacy. There are intestacy statutes that determine what happens to possessions after death (and many will provisions and definitions are structured in accordance with the statute).
Surviving Spouse
A spouse’s share can range from none to all. Generally, the surviving spouse receives at lease one-half of the decedent’s estate. According to the UPC, if the decendant and spouse shared all the same children, then the spouse will take the entire estate. However, if teh surviving spouse has a child with someone other than the decedent, then the surviving spouse receives a smaller share—to account for the potential of a step-parent favoring their children over the decedent’s. Likewise, if there are no children, the spouse receives a smaller share as the estate is used with the decedent’s parents (if any).
What if there is no surviving spouse? That is, what if the spouses die at the same time. The Uniform Simultaneous Death Act answered “if there is no sufficient evidence” of the death order, neither spouse survives the other and neither received an inheritence from the other. Ultimately, the assets were divided in half and treated as though one spouse or the other had survived respsective of the assets. The challenge here is determining whether the spouses died simultaneous.
Representation
Children and descendants of deceased children will take the remainder of what the surviving spouse does not take. The issue with this is that there are three different systems on how much decendants of deceased children will take. The three systems include: (1) Engligh per stirpes or strict per stirpes, (2) modern per stirpes or per capita with representation, or (3) per capita at each generation (1990 UPC).
(English) per stirpes: The share is divided equally at the child level (each kid gets an equal share). Iowa uses this approach.
Modern per stirpes: If any children survive the decedent, then the result is the same as per stirpes. However, if no children are surviving, shares are divided equally amongst the grandchildren (or the next surviving level).
UPC: The first surviving generation will take their equal share. Decendants of that surviving generation will then take the reminder.
Ancestors, Collaterals, and Others
If there is a child, ancestors do not take. If there is no child, half of the states require the spouse to share with parents, while the other half of states allows the spouse to take it all. Finally, if there are no spouse, parents, or children, collateral kindred (anyone else related by blood) will receive their share. Many states limit collateral kindred to only those related by parents (brothers, sisters, neices, and nephews, etc.) or grandparents (aunts, uncles, cousins, etc.) to prevent laughing heirs. Other states allow stepchildren and in-laws to take a share.
With the limitations, if no-one else can take, the remainder goes to the state. This is called an escheat.
Disinheritance
Some states require disinheritance by dividing all the property to others. Many states now allow a negative will stating that certain individuals will receive none of the property (but be specific).
Children
Adopted Children: Formal
In the majority of states, adopted children inherit from adoptive relatives and also from prior relatives if the child is adopted by a stepparent. See UPC 2-119. The result in Hall is a minority of states. A few other states in the minority allow an inheritance from both adopted and natural parents.
Adopted Adults
Adopted adults are generally treated the same way as adopted children, no difference. The main issue arises when people are using adoption to prevent will contests againt other apparent heirs.
Equitable Adoption and De Facto Parentage
The doctrine of equitable adoption is that a husband and wife enter into an informal adoption agreeing to take the child. If the child is treated as an adopted child, then the husband and wife are estopped from denying a formal adoption occurred. A majority of states recognize the doctrine while a minority deny it.
This doctrine applies mainly to foster children and stepchildren.
Posthumous Children
A child conceived during the father’s life but born after his death is a posthumous child. The traditional rule is that a posthumous child is entitled to a share of the estate.
Nonmarital Children
Traditionally, children born out of wedlock were not to receive a share of the inheritence from the father or mother. Now, every state permits the child to receive a share from the mother’s estate. Many states vary as to whether a child is still to receive a share of the father’s.
Reproductive Technology
Reproductive technology has allowed parentage to occur even after both the mother and father has passed. This leads to questions about whether these children are entitled to a share of the estate intestate. For instance, what happens if a child is posthumously conceived? That is, the parent dies before the child is conceived and birthed. The child is technically born out of marriage (marriage ends on death, legally).
Reproductive technology also raises questions for surrogacy for opposite-sex married couples and assisted reproduction for same-sex couples. Who is the parent when the sperm, egg, and womb may be provided by others outside of the relationship. Who has parental rights? How do you determine whether the child may take an inheritance of the intended parents?
Advancements and Hotchpot
An advancement is an advance payment of the estate during the life of the decedent. Traditionally, the heir must show that any lifetime gifts were not to count against the estate. Under modern law, most states say there is no presumption of an advancement.
A hotchpot occurs if there is an advancement. The child who received the gift adds that total into the estate. This total balance is called the hotchpot. The estate then divides between the children equally. Because the child had already received the gift, they take less of the remaining balance in the estate.
Disclaiming
A disclaimer is when an individual declines their inheritance. There are three primary reasons why an individual may disclaim their inheritance. (1) Tax reasons (keep from going into a new tax bracket). (2) Keep the inheritance in the family instead of creditors. (3) Family planning (either to not meet a condition, there’s a grudge, managing is a hassle, children could receive a larger share, etc.).
The limitations here is that a disclaimer cannot be used to avoid a tax lien or to maintain medicaid benefits.
Execution of Wills
Every state has a Wills Act, where a person who dies passes the estate testate. A will is a way to “opt out” of the default intestacy statutes. If the will has any gaps, then the remaining estate will revert back to instestacy.
A will only goes into effect at the death of testator. So, the testator is not able to testify as to the intent of the will. Thus, for a will to be valid, it needs to be authentic, voluntary, and describe the intent of the testator. This section discusses the authenticity, or execution of wills. These consider the rules for attested wills (the most common), notarized wills, and holographic wills.
Attested Wills
An attested will requires a writing, signature (complete, but a mark or online font may work), and attestation (witnessed by uninterested witnesses. If a witness is interested, any inheritance more than their intestacy share is removed (purged) unless there are enough uninterested witnesses). The purpose of these is to verify the authenticity of the will in the absence of the decedent.
Revocation of Wills
Until the testator dies, the individual is free to alter (by codicil) or revoke the will. The issue is that the will must be revoked in a particular way. It must be revoked in writing in accordance with the wills act (a new will revoking or replacing the previous one) attested by the appropriate witnesses and signed, or illistrated by destroying the previous will in some act.
There are six ways to revoke a will:
- There is a physical act
- An express revocation by will formalities
- Implied revocation with will formalities
- A matter of law
- Creating an entirely new will
- The will is lost.
Will Components
Integration
Integration is the idea that all the documents making testimentary intent at the time of execution is part of the valid will.
Republication by Codicil
This doctrine states that when a codicil is published, then the original will is republished at the date of the codicil. However, if this goes against the testator’s intent, the doctrine is to be ignored.
Incorporation by Reference
If a will references (and properly identifies) an already existing document, then the document is absorbed as part of the will.
Many jurisdictions only allow these types of transfers to occur if the value of the items are minimal in nature. There are some differences between juridisdictions deciding whether the writings need to be made before or whether the writings are allowed to be made after the will is executed.
Acts of Independent Significance
Sometimes a will will devise property to somebody and then later in the testator’s life sells that property to another (or replaces the property with an update). This rule allows the testator to take the newly replaced property.