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 ➢ Persons “legal” home ➢ Important for choice of law issues ● Dower ➢ Common law term denoting widows right to husbands 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 testators 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 drafters place ● Probate ➢ Process of proving validity of will and administration of the estate.
Terminology ● Power of Attorney ➢ Appointment of “agent” to act in drafters 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.
Surviving Spouses 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. ● Spouses 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 … 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 wills 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 testators 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 testators 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.