Essay on "Decedent Wills and Probate Law"

Essay 4 pages (1222 words) Sources: 1 June 19, 2019

[EXCERPT] . . . .

Wills

A lack of uniformity among states exists as to procedural provisions with regard to adoption of the Uniform Probate Code (UPC). Substantively the states are similar—but not procedurally. Two versions of the UPC exist: the original and the revised version. Both are commonly used by states in the development of their own provisions. The revised version came about as a result of need to update the original to include nonprobate transfers, such as revocable trusts, life insurance, and employee benefit plans. 

Intestate Succession in Probate Law and Decedent Wills

Intestate succession focuses on distribution rules. Intestacy statutes govern the distribution of the property of a person when the person dies without a valid will, the will is denied probate or the will does not completely dispose of the estate, resulting in a partial intestacy (Johanson, 2010). All states today generally share the same rules with regard to intestate distribution, but the state law where the decedent was domiciled at the time of death determines the disposition of personal property; however, disposition of real property is determined by state law where the property is located.

Inheritance rights permit an adopted child to have the same inheritance rights as a biological child. Stepchildren and foster children have no inheritance rights from step or foster parents unless there is an unperformed agreement to adopt. Posthumous children have the same rights as biological children as do nonmarital children so long as paternity can be determined.

Succession issues that commonly arise relate to simultaneous death of both parents, regulated by the Uniform Simultaneous Death Act; the advancement and satisfaction of legacies, wherein most states permit advancements to be made to any heir; and disclaimer by heir or will beneficiary, wherein the disclaimed interest passes as though the disclaimant predeceased the decedent. In cases where the heir is found to be a slayer of the decedent, this usually results in the one who wrongfully brings about death forfeiting interest in the decedent’s estate. Aliens are typically given unrestricted right to inherit property within most states (Johanson, 2010).

Restrictions on the power of testation include the rule that a surviving spouse’s only right in a decedent’s estate was dower or curtesy, which have mostly been replaced with elective share statutes in most states. These allow the surviving spouse to a share of the decedent’s estate in lieu of taking under the will. In all but one state (Louisiana) a testator may disinherit children. Homestead laws also exist to protect the family residence or farm from claims made by creditors.

Formal requisites of wills are determined by what constitutes a will, which is defined as an instrument executed with certain formalities that direct the disposition of a testator’s property at death, and is effective only upon the testator’s death (Johanson, 2010). A codicil is a supplement/amendment to a will. There are 3 types of wills: 1) attested will—one that is written, signed by the testator, and witnessed by two or more; 2) holographic will—one that is recognized by half of all states and in which material portions are all in the testator’s handwriting and signed by the testator but there is no witness; and 3) oral wills—which are valid in many states but only in limited situations (Johanson, 2010). In all states, making a will is not a natural right and is subject to the legislature’s plenary control. Rules regarding this are generally that a testator must have intended the document in question to be the will at the time the instrument was executed. Conditional wills also exist, in which dispersion occurs only after an event stated in the will has taken place.

All wills can be revoked by the… READ MORE

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