very basis us wills and succession law
DESCRIPTION
Given to students in the University of Osnabrück's Foreign Law program.TRANSCRIPT
U.S. Law
Wills and Estates
Terminology● Estate
➢ Property of the decedent
● Decedent➢ The person who died➢ NOTE – the person who made a will is the “testator”
● Administrator➢ Person chosen to administer estate➢ Sometimes referred to by generic term “personal
representative”
Terminology
● Descendant➢ Includes children, grandchildren, greatgrandchildren, etc.➢ Also referred to as “Issue”
● Domicil or Domicile➢ Person's “legal” home➢ Important for choice of law issues
● Dower➢ Common law term denoting widow's right to husband's land
(widower gets “curtesy”)
Terminology
● Executor➢ Person designated in will to carry out wishes of testator.➢ May either be individual or bank/law firm with trust department.➢ Sometimes called “Personal Representative”
● Bequeath, Bequest➢ Gift of personal property transferred via will➢ Today the term “devise” is more common
Terminology
● Heir➢ Technically this is the person who receives a share via
intestacy laws. (“Next of Kin” is also used)
● Holographic➢ Will written entirely in testator's handwriting
● Intestate➢ Without a will➢ Laws that provide for distribution in event that there is no will
are called “intestacy” laws.
Terminology
● Living Will➢ Instrument dealing with person on life support
● Power of Attorney➢ Appointment of “agent” to act in drafter's place
● Probate➢ Process of proving validity of will and administration of the
estate.
Terminology
● Power of Attorney➢ Appointment of “agent” to act in drafter's place
● Probate➢ Process of proving validity of will and administration of the
estate.➢ Many states have separate probate courts do deal with the
distribution of estates.
Source and Conflicts
● Estates Law is state law.➢ Law are similar on most basic points, may differ in fine details.
● Uniform Probate Code➢ Model code that all states have adopted, at least in part.
● Generally, testator can designate applicable law in a will.
Wills and Estates
Intestate Succession
Surviving Spouse's Share
● Determining the share of the spouse and Issue
Spouse and Issue
● Note that these statutes protect the children of the decedent who are NOT the children of the surviving spouse.
● Length of marriage is not often considered in these statutes.
● Spouse's share may depend on how many children the decedent has.
Next of Kin
● How is the remaining share divided? What happens when there is no surviving spouse?
Representation
● Children of relative who would have been heir had they been alive receive the share the relative would have received.
● EXAMPLE – D is survived by Aunt and three cousins from dead uncle.
➢ Share is divided by two. Aunt gets ½ and the three cousins split the other half.
Wills & Estates
Wills
Wills … A Privilege
“Rights of succession to the property of a deceased . . . are of statutory creation, and the dead hand rules succession only by sufferance. Nothing in the federal constitution forbids the legislature of a state to limit, condition, or even abolish the power of testamentary disposition over property within its jurisdiction.” Irving Trust Co. v. Day, 314 U.S. 556, 562 (1974).
The Omitted Spouse
● The Elective Share➢ An omitted spouse has
several options that vary from statetostate.
➢ Many states allow the spouse to take a share equal to what she or he would have taken under intestacy laws.
The Omitted Child
● Unintentionally omitted children are often allowed a share of the estate.
➢ Children born after death of decedent, children thought to be dead at time of will's drafting.
● Intentionally omitted children are generally barred from obtaining a share.
➢ This is consistent with common law stress on intent of drafter.
Requirements for a Valid Will
● Legal Capacity● Testamentary Capacity● Testamentary Intent● Formalities
Legal Capacity
● A person must possess a certain status to be able to make a testamentary disposition of property.
● Early U.S. law prohibited married women, aliens, convicts and Native Americans from executing a will merely because of their supposedly inferior status.
● Today age and marital status are the two primary considerations.
Testamentary Capacity
● The second requirement for a valid will is that the testator must have had testamentary capacity at the time the testator executed the will.
➢ “Sound mind”➢ Wisconsin – W.S.A. § 853.01 – “Any person of sound mind ….”
Testamentary Intent
● The will must reflect the testator’s intent.● The testator must intend that the very instrument he
executed is to be his will and effective upon his death.➢ E.g., letter to attorney listing changes to will.➢ E.g., sham will as part of hazing ritual.
Will Formalities: Purpose
● Ritual or Cautionary Function➢ ensure testator's intent
● Evidentiary Function➢ create reliable evidence of testator’s intent.
● Protective Function➢ make it difficult for person to exert undue influence.
● Channeling Function➢ increase testator confidence
Attested Wills
● Attested wills, that is, wills that are witnessed, are the most common type of will.
● An attested will must be:➢ In writing, ➢ Signed by the Testator, and➢ Witnessed.
Attested by Witness
● Most states require at least two witnesses.● Generally, there is no statutory minimum age for a
witness.● Witnesses must be competent or credible at the time they
attested to the will.➢ Wisconsin – W.S.A. § 853.07 – “Any person who, at the time of
execution of the will, would be competent to testify as a witness….”
Holographic Wills
● A holographic will is prepared in the testator’s own handwriting.
● In approximately ½ of the states, holographic wills are exempted from the attestation requirement.
➢ In those states testator's own handwriting is deemed sufficient to protect against fraud.
● Most states require these to wills to be dated.
Oral Wills
● Many states do not recognize oral wills.● In states that do recognize oral wills, there are generally
restrictions imposed, such as on:➢ The type of property covered – no disposition of real property.➢ The amount of property covered – small $ amounts.➢ Condition of testator – imminent death.➢ Number of witnesses – three, even if only two are needed for
attested wills.
Revocation
● Subsequent Writing➢ New will that expressly changes or contradicts a prior will.
● Act➢ “Burning, tearing, obliterating”
● Divorce➢ Most states only negate part of will that dealt with spouse, not
entire will.