3. Property, Estate And Probate

A. Wills

I. Requirements For Valid Will

Most states require that wills be in writing and signed at the end by the testator, who must be of legal age and sound mind at the time of making the will. The testator’s signature is to be witnessed by at least two witnesses under most state laws. Many states allow for “self-proving” wills which include affidavits signed by a notary, the testator and the witnesses that can be admitted to probate without the witnesses having to testify in court that the will is valid.

Ii. Forms/types Of Will

In addition to printed or typewritten wills, some states recognise holographic (completely handwritten by testator and not witnessed) and nuncupative (verbal declaration by testator in presence of witnesses) forms of will.

Iii. Revocation And Alteration Of Wills

State law provides that a will can be revoked or altered by another will later in date, a writing of the testator clearly indicating an intention to revoke or alter the will and executed with the same formalities as a will, or by an act of mutilation or destruction, such as burning or tearing.

B. Dependants’ Relief

Under state law, children generally have no fixed inheritance rights in the property of a deceased parent (with the exception of Louisiana, where certain children are entitled to a forced share), other than in the case of intestacy. Any child may be disinherited as long as the testator has clearly expressed the intent to do so and the entire estate is left to others. Otherwise, the child will be entitled to a share of the intestate estate. A limited exception is generally provided by pretermitted heir statutes, which provide that a child born or adopted after the execution of the parent’s will and who is neither mentioned in the will nor expressly disinherited, is entitled to a share of the probate estate.

C. Intestacy Rules

An individual who dies without a valid will is said to have died intestate. Even with a valid will, property not disposed of by that will or by a non-probate arrangement, passes by intestacy. Every state has a statutory regime identifying the heirs entitled to, and their respective shares of, intestate property. If there are no heirs, or existing heirs do not accept the inheritance, any unclaimed property passes to the state.

D. Spousal Rights On Death

State law generally protects spouses by restricting the ability to transfer property during lifetime and at death through dower, which is a wife’s right to a life estate in real property owned during the marriage, and curtesy, a husband’s comparable right.

Alternatively, many states provide the surviving spouse with a statutory right to an elective share of the deceased spouse’s estate calculated on the value of both real and personal property. The right applies to husbands and wives, and is generally drawn from the net estate after the satisfaction of creditors. If a spouse dies testate, the spouse may choose between the testamentary share of the estate and the statutory elective share. To guard against inter vivos transfers and property held in trust that would decrease the value of property owned by the spouse at death, many states subject certain non-probate assets to elective share provisions.

A number of states have community property laws which provide that all property acquired during the marriage, other than by gift or inheritance, is owned equally by each spouse. At death, the surviving spouse owns the one-half interest outright, irrespective of any other disposition in the deceased spouse’s will.

E. Powers Of Attorney

State law provides that a ‘principal’ can give a ‘power of attorney’ to a designated ‘agent’ to act on behalf of the principal. The authorised powers can be general or specific. A non-durable power of attorney takes effect immediately and remains in effect until revoked or until the principal becomes incompetent or dies. A durable power of attorney also takes effect immediately but the agent can act for the principal even after the principal becomes incompetent. A springing power of attorney does not become effective until the happening of a specific event, such as the illness or disability of the principal. Some states provide statutory form powers of attorney.

F. Advance Directives Regarding Medical Care

Most states recognise advance directives regarding medical care. State law may provide for living wills detailing the type of medical care that would be accepted or refused in various circumstances and/or health care powers of attorney appointing an agent to make health care decisions (including ‘end of life’ decisions) in the event that the patient is unable to do so.

G. Assets Not Requiring Probate

Non-probate arrangements, sometimes called ‘will substitutes’, provide for the passage of title on death as specified by state law, joint arrangement, or banking agreement, thereby superseding the provisions of the decedent’s will. Life insurance is also considered a will substitute when the contract provides that policy proceeds are to be paid to a named beneficiary other than the decedent’s estate.

Under a joint tenancy with right of survivorship co-owners share an equal and undivided interest in the whole of the property. When one owner dies, title to the property passes to the remaining owner. Title may be terminated at any time with owners retaining an equal proportion of the property and becoming tenants in common.

Tenancy by the entirety, permitted in a minority of states, is similar to joint tenancy with right of survivorship, except that it applies only to married couples. Neither spouse acting alone may convey an interest in or partition the property. The right to survivorship cannot be defeated by the transfer of one spouse’s interest.

Joint bank accounts, in which two people open an account together and have unlimited access to the entire amount of the account, may, and often do, have a right of survivorship. Payable-on-death accounts and Totten trust accounts involve a depositor who has full access to the account during life, with the account payable to a named beneficiary upon the depositor’s death. The named beneficiary has only a survivorship interest in the account, and has no ownership rights until the depositor’s death.


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