paralegal power break: the law of succession
TRANSCRIPT
The Law of Succession:Death Testate or Intestate
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