Essay on "Wills Outline of Gilbert Law Summaries"

Essay 10 pages (3832 words) Sources: 0

[EXCERPT] . . . .

Wills

Outline of Gilbert Law Summaries -- Wills

Intestate Succession

Patterns of intestate distribution. Rules vary from jurisdiction to jurisdiction, but generally in those cases where the decedent did not leave a will or the will does not provide for complete distribution, the pattern of distribution is typically the spouse (who receives one-half or one-third if there are descendents, and everything in there are not. In cases where there is no surviving spouse, children receive everything and grandchildren and other descendents receive the parent's share in the parent did not survive.

Intestate distributions -- community property states. Eight states are community property states and rules also vary among these, with general agreement that separate property is property acquired prior to marriage and community property is acquired during the pendency of the marriage.

Chapter II. Inheritance Rights as Affected by Status of Child or Sibling

A.

Adopted children.

When children are adopted, they gain entitlement to inherit from adoptive parents but typically lose the right to inherit from the natural parent.

B.

Children born out of wedlock. Typically, out-of-wedlock children can inherit from their mother and her relatives, but additional proof is required in most cases to inherit from fathers.

C.

Posthumous children. Children born after the death of a parent or parents typically may inherit from the decedent or decedents.

D.

<br />

Stepchildren. Unless certain circumstances exist to establish adoption by estoppel, stepchildren may not inherit from a stepparent

E.

Do grandchildren take per stirpes or per capita? Generally, grandchildren take by representation in those cases where there were no surviving children of the decedent, and distribution may be per stirpes or per capita.

F.

Inheritance by brothers and sisters of the half-blood. The majority of states provide that half-bloods take the same as whole bloods, but some states stipulate that half-bloods receive only half as much as whole bloods.

Chapter III. Succession Problems Common to Intestacy and Wills

A.

Simultaneous death. Besides Louisiana and Ohio, all states have adopted the Uniform Simultaneous Death Act that provides there must be a distinguishable amount of time between the death of a decedent and survivor to establish priority of distribution. Absent evidence that both parties died other than at the same time, the property of both parties is distributed as if they had survived.

B.

Advancements, satisfaction of legacies. Common law as well as the laws of several states dictate that any lifetime gift to a child is presumed to represent an advance payment of the child's intestate share of the estate, with the burden of proof that such an advancement was not made being on the party so contending.

C.

Disclaimer by heir or will beneficiary. No one can be compelled to accept a bequest; if denied, the bequest is distributed as if the disclaimant predeceased the testator.

D.

Killer of the decedent. Once again, rules vary from jurisdiction to jurisdiction, with some states providing that the killer of a decedent retains the right to inherit from the estate because to do otherwise would be to impose an additional punishment for the crime, while others (more logically it would seem) bar the killer from inheriting from the estate.

E.

Nonresident aliens. Although most states allow nonresident aliens to inherit without restrictions, some stipulate that any real property inherited must be disposed of within a time certain, while others bar nonresident aliens from inheritance unless their countries of residence provide reciprocal provisions.

Chapter IV. Restrictions on the Power of Testation -- Protection of the Family

A.

Protection of the spouse -- common law. Most states have replaced the common law dower and curtesy provisions with statutory rules, the common law still applies in some states.

B.

Protection of the spouse -- elective share statutes. Most states have protections on the books that prevent spouses from being disinherited and allow the surviving spouse to take the statutory share (typically one-third or one-half) instead of taking under the provisions of the decedent's will.

C.

Lifetime transfers to defeat the elective share. Most states have provisions or doctrines whereby surviving spouses can challenge lifetime transfers of property.

D.

Protection of the spouse -- community property states. None of the eight community property states has a statute covering elective share and the surviving spouse automatically owns one-half of the community estate over which he or she has dispositional power.

E.

Pretermitted child statutes. All states except for Louisiana have some type of provision that allows parents to disinherit their children; however, many states have provisions that protect children who were accidentally left out of a will.

F.

Homestead, exempt personal property, family allowance. A number of states protect the family residence or farm from the claims of creditors through the use of homestead laws. These laws also differ, sometimes significantly, from jurisdiction to jurisdiction, but are characterized by several commonalties, including the protection from creditor claims, the need for the signature of both spouses to convey interest in the homestead, and provides an unassignable right for the surviving spouse (or children if no spouse survives) to occupy the family residence; minor children's rights expire on the date of their majority, and this right expires if the residence is left unoccupied.

G.

Testamentary gifts to charity. In most states, there are no restrictions on bequests to charitable institutions, but a few states still retain statutes that restrict such testamentary gifts.

Format Requisites of Wills

A.

What constitutes a will. At the most basic level, a will is simply a document that functions to transfer ownership of real or personal property after someone dies.

B.

Governing law. The Uniform Probate Code (UPC) was promulgated in 1969 and subsequently approved by the National Commissioners on Uniform State Laws; however, the UPC has only been adopted in whole or part by a handful of states. In some states where the UPC does not control, the laws are still modeled after it, while other states have retained their laws and have modified them as required.

C.

Testamentary intent. Testamentary intent is required in order for a will to be executed; in other words, the testator must have intentionally used the words contained in the will and any subsequent changes made through codicils or otherwise at the time of their execution.

D.

Capacity to make a will. Testamentary capacity is required to execute a will or any subsequent changes made through codicils; the mental capacity requirements for testamentary capacity are less restrictive than for other purposes.

E.

Execution of attested wills. Unless all of the statutory requirements for a will have been satisfied, a will does not exist and any document purporting to be such is inadmissible to probate. Signatures on wills can assume a wide range of forms, including first names or nicknames only, initials, parenthood titles, or even a "X."

F.

Witnesses. Witnesses to the signature of wills must also have the requisite competency to do so which is typically interpreted to mean they have sufficient maturity and mental capacity to understand the implications of the execution of the will.

G.

Attestation clause. In all well-drafted wills, an attestation clause is included that recites the details of the statutory requirements involved in the performance of the execution of the will.

H.

Self-providing affidavit. A number of states allow these affidavits that serve as additional documentation that can replace live testimony during probate.

Holographic wills. About half of the states recognize these types of wills which are simply completely handwritten in the testator's own handwriting and which typically do not contain the signature of witnesses.

J.

Oral wills. These types of wills are allowed by a number of the states, but only in extreme circumstances (i.e., service members, during testator's last sickness or in anticipation of immediate death).

K.

Conditional wills. These types of will stipulate that a condition must be satisfied in order for the will to be operative; absent such condition, the will is void.

Revocation of Wills.

A.

Revocation by operation of law. Some changes in the testator's circumstances (i.e., marriage or divorce) are addressed differently by about half of the states, with one-half holding that such changes do not affect a previously made will while the other half holds that such changes do affect a previously executed will; however, a majority of states recognize that divorce operates to at least partially revoke a will but do not affect insurance proceeds.

B.

Revocation by subsequent testamentary instrument. Testators can revoke a previously made will in whole or in part but must be stated in unambiguous terms with the present intent to revoke made clear.

C.

Revocation by physical act. It is possible to revoke a will by tearing it up, burning it, or otherwise physically destroying or obliterating it with the distinct purpose of revoking it.

D.

Proof of lost wills. It is possible to have a lost will admitted to probate in most states provided that: (a) the will be proven to be validly executed; (b) that it was lost rather than revoked; and (c) proof… READ MORE

How to Reference "Wills Outline of Gilbert Law Summaries" Essay in a Bibliography

Related Essays:

Gilbert's Summaries Contracts the Law Essay

Gilbert's Summaries

Contracts

The law of contracts represents society's attempt to formalize promises between parties. Promises are agreements between parties that are supported by consideration. Historically, consideration was described as… read more

Essay 18 pages (5347 words) Sources: 0 Topic: Law / Legal / Jurisprudence

---

Gilbert Law's "Legal Writing, Research, and Analysis Thesis

Gilbert Law's "Legal Writing, Research, and Analysis"

Each profession has its own set of rules and language, and the field of law is no exception. In order to effectively research,… read more

Thesis 5 pages (1593 words) Sources: 1 Topic: Law / Legal / Jurisprudence

---

Gilbert Law: Evidence Gilbert Law Summaries Essay

Gilbert Law: Evidence

Gilbert Law Summaries: Evidence

Introduction to Evidence

The Federal Rules of Evidence (FRE) is a code of evidence law governing the admission of facts by which parties… read more

Essay 8 pages (3911 words) Sources: 1 Topic: Law / Legal / Jurisprudence

---

Corporate Civil Procedure and Constitutional Law Term Paper

Gilbert Law Summaries: Constitutional Law by Jesse Choper

The United States Constitution is the foremost legal authority for laws created in the United States. Though the Constitution is a federal… read more

Term Paper 32 pages (10293 words) Sources: 1 Topic: Law / Legal / Jurisprudence

---

Conflict of Laws Essay

Domicile is the method by which the courts in the United States connect a person to a particular place for purposes of litigation. Generally, domicile will become an issue by… read more

Essay 9 pages (2854 words) Sources: 0 Style: APA Topic: Law / Legal / Jurisprudence

---

View 100+ more related papers  >>