The Law of Succession Death Testate or Intestate

The Law of Succession: Death Testate or Intestate Chapter 3

Death Testate or Intestate • Testacy – Death with a valid will • Intestacy – Death without a valid will

Holographic Will • A will written by the testator’s own hand • Validity varies among states

Nuncupative Will • An oral will • Spoken in the presence of witnesses • Generally not valid except in extreme circumstances

Statutory Will • A fill-in-the-blank will created and authorized by state statute

Joint and Reciprocal Wills • Joint Will – A single document signed by spouses as their will • Reciprocal Will – Separate and identical wills made by spouses – Reciprocal provisions in each will – Agrees that neither spouse will change his/her will after the death of the other spouse

Living Will • A document separate from a will; expresses a person’s wish to be allowed to die a natural death and not be kept alive by artificial means

Types of Gifts in a Will • Specific Bequest or Legacy – A gift of a particular item or class of personal property • Specific Devise – A gift of real property

Legacy • Demonstrative – A gift of a specific monetary amount from proceeds of the sale of a particular item of property or from some identifiable fund • For example: $10, 000 from the sale of a house • General – A gift of a fixed amount of money from the general assets of the estate

Residuary Legacy or Devise • A gift, either by legacy or devise, of all the testator’s property not otherwise disposed of by a will

Gifts Not Distributed by the Terms of the Will • Ademption – An intentional act by a testator, while alive, to cancel or revoke a gift or to deliver the gift to another or to the beneficiary • Lapse – Failure to distribute property as directed by a will because the beneficiary died before the testator died

Gifts Not Distributed by the Terms of a Will • Abatement – The proportional reduction of the legacies and devises in a will because of inadequate available funds from the assets of the testator's estate

Per Capita Distribution • Division of an intestate’s estate by giving an equal share to the persons who are related to the decedent in the same degree of relationship • Distribution without benefit of right of representation

Degree of Kindred • The relationship between a decedent and his/her survivors that governs distribution of the estate – first, to a surviving spouse and lineal descendants – next, to lineal ascendants – next, to collateral relatives who are lineal descendants of the decedent's parents – next, to other next of kin, blood relatives of the decedent

Per Stirpes Distribution • Distribution of property by class or by right of representation – The estate is divided into as many equal shares as the decedent has children who are living or who are deceased, but have living descendants

Escheat • The passage of an intestate’s property to the state when there are no surviving blood relatives or a spouse

Rights of Survivors • Surviving Spouse – Right of election • Spouse’s choice of the statutory share or the share under the provisions of the will – Forced share • Share that spouse may choose pursuant to statute; alternative to choosing the share specified in the will

Divorce • If granted after execution of the will, the effect of the divorce on the will is determined by state law • Generally, divorce revokes the gift to the former spouse and not the will itself • Gifts to a former spouse usually pass to the residuary beneficiary • Legal separation does not change a spouse’s status

Marriage • Subsequent marriage may revoke the entire will, depending on the state • Compare to joint tenancy created prior to marriage

Premarital Agreement • A contract between spouses before their marriage, whereby property rights are predetermined • Usually used in a second marriage to protect children of the first marriage • Compare to postnuptial agreement

Children • Adopted children – Are treated the same as natural children • Nonmarital children – May inherit from nonmarried parents, but statutes vary among states

Children • Pretermitted children – Omitted children in a will • The will must be clear in stating that the omission was intentional • If a child is not mentioned in the will, it is assumed that the omission was inadvertent • Parents may intentionally disinherit children, but may not disinherit a spouse