Funeral Law week 5

Will - characteristics

-A will is revocable and amendable until the time of death; -Courts liberally interpret a will to attempt to ascertain the intent of the testator rather than applying strict technical legal interpretations; and -Different law may apply to different parts of the document, i.e. the law of the state of the decedent's residence is the law which controls disposition of the personalty but the law of the state where real property is located will control the disposition of the real property. -

testamentary capacity requirements

-Know the property you own; -Know the natural objects of your bounty, which means to whom would you expect this person to leave their property at the time of their death; and -Provide a scheme to get that property to those people. -

Living will

A document which governs the withholding or withdrawal of life-sustainging treatment from an individual in the event of an incurable or irreversible condition that will cause death within a relatively short time, the document becoming effective when the person is no longer able to make decisions regarding their medical treatment

SURVIVING SPOUSE'S FORCED OR ELECTED SHARE

A testator cannot totally disinherit the surviving spouse. If the will attempts to do so most state provide a procedure whereby the surviving spouse can "elect" against the will and take a "forced" or set share that is usually between 1/3 and 1/2 of the probate estate. Certain adjustments are made to insure this is a fair share. Thus if the testator attempted to dispose of all of the assets immediately prior to death such transactions may be avoided and the assets returned to testator's estate.

Last Will & Testament

The document disposing of property to take effect upon the testator's death -an instrument, a document, executed with the required formality by a competent person making disposition of their property to take effect upon their death.

Residuary clause

The provision in a Last Will and Testament that insures that the person will not die even partially intestate

RULE AGAINST PERPETUITIES

This is one of the more confusing rules in all of the law. The purpose of the rule is to require that when a gift or inheritance occurs the property vests in fee simple within a certain period of time. Thus certain inter-generational gifts will be excluded. The main reason these inter-generational gifts are excluded is that they are a scheme to avoid taxes and result in the property never being owned outright. Suppose I made a gift by will of a 1 million dollar trust and designated that the beneficiary is my son for his life then his son for life then his son for life and so on in perpetutuity. Since no "son" ever became the outright owner the property continues to pass pursuant to my will. Thus my estate would be taxed at my death, but all subsequent transfers to the "sons" would escape a death tax. The Rule against Perpetuities prevents this from happening.

pecuniary legacy

Transfer of a gift of money

inter-vivos" transaction

Transfer of real property occurs during the life of the owner

POWER OF ATTORNEY

a document created by a person, a Principal, to authorize another person, an Agent, to conduct business for them during their life. -may be made durable, that is to continue to remain in force when the Principal is incapacitated, or the Power of Attorney could be made spring, that is the authority of the Agent only becomes effective when a certain event occurs, such as the incapacity of the Principal.

Bequest

a gift of personal property by will.

Legacy/

a gift of personal property by will. -a gift of money made in a last will & testament;

Devise/

a gift of real estate; the act/process of transferring ownership of real property. (Devise applies to both transfers as well as by wills.) -transfer of real property, either during life or at the time of death;

Testator

a man who makes a valid will.

Executor/Executrix

a man/woman appointed by the will of a deceased person to carry out the provisions thereof and settle the estate. (see also personal representative) -person named in a last will & testament to administer the estate;

Holographic Will

a will written entirely by the hand of the testator/testatrix..

Testatrix

a woman who makes a valid wil

testator cannot

a) disinherit a surviving spouse below a level set by statute, nor b) transfer property using a scheme which violates the Rule against Perpetuities.

Last Will & Testament (as opposed to contracts)

a. The will is revocable until the time of death; b. Courts attempt to liberally determine the desires of the testator as opposed to strict technical interpretation of the language used; c. A will may be controlled by the law of more than one state.

Codicil

an addition or amendment of a last will and testament executed with the same formality of the will.

Will

an instrument executed with required formality, by persons making disposition of their property to take effect upon their death.

Administrator C.T.A.D.B.N

appointed administrator if the will stated executor is unable to complete the administration because of death of the executor of removal for clause.

Administrator D.B.N De Bonis None

appointed if the administrator cannot complete the administration of the estate

Principal

can authorize the Agent to conduct any act which the Principal could do, or may limit the authority of the Agent to specific acts.

codicil

document that merely changes a will

Last Will & Testament may be revoked by

executing a subsequent will, executing a codicil, marrying, divorcing a spouse, a child born after the execution of the will and destroying all or a part of the will.

Bequeath

gift of personal property made from a decedent's estate ;

Administrator C.T.A

if the will fails to designate an executor, the court will appoint an administrator.

surrogate

make decisions for the persons when the are unable to do so for themselve (living will/ health care directive

Legatee

one who inherits personal property under a will.

Heir

one who inherits, or is entitled to receive property by will or by laws of intestacy. - recipient of personal property (bequeath)

Nuncupative Will

oral will declared or dictated by testator during last illness before appropriate witnesses to dispose of personal property and afterwards reduced to writing (not valid in all states

Fiduciary

parties who owe the highest duty of trust

SPRINGING POWER OF ATTORNEY

power of attorney created today but not to take effect until the principal is incompetent to function. Obviously, the springing power of attorney will also be "durable".

DURABLE POWER OF ATTORNEY

power of attorney that continues to be effective despite the disability of the principal the agent must be appoint prior to the incompetency of the principal.

Testament capacity

present when the person making a last will and testament: a. Knows the property which they presently own; b. Knows the natural objects of their bounty; and c. Creates a scheme to transfer their property to the natural objects of their bounty.

Residuary Clause

provision in a last will & testament transferring all the property owned by the testator which was not specifically previously mentioned in the last will & testament.

Donee

recipient of personal property (bequeath or Gift)

spring

that is the authority of the Agent only becomes effective when a certain event occurs, such as the incapacity of the Principal.

Durable

that is to continue to remain in force when the Principal is incapacitated,

Testate

the condition of leaving a will at death. -a person who has a valid will at the time of their death;

HEALTH CARE DIRECTIVE

the document expressing a persons decisions regarding medical treatment and procedures when that person is physically or mentally unable to make such decisions and death is imminent.

LIVING WILL/HEALTH CARE DIRECTIVE

the document expressing a persons decisions regarding medical treatment and procedures when that person is physically or mentally unable to make such decisions and death is imminent. Living wills also designate a person to act on behalf of the drafter of the living will prior to the time when death is imminent. This appointment of a personto make these decisions is sometimes referred to as the "health care proxy". Thus the living will may both set forth the persons desires as to treatment and appoint a person to make and enforce the decisions when the drafter is unable to do so.

Inheritance

the estate which passes from the decedent to his/her heirs.

Administrator/Administratrix

the man/woman who is appointed by the court to settle the estate of a decedent who died without a last Will and Testament. (see also personal representative) -person appointed by the Court to administer an estate of a person who died without a last will & testament

Intestate Succession

the method used to distribute property owned by a person who dies without a valid will

Devisee

the person who receives real property through the process of a devise.

Estate

the property of a deceased person, both real and/or personal.

Intestate

the state or condition of dying without having made a will; intestacy.

gift

transfer of personal propery when the owner is still alive

lucid interval

when a persond adjudicated insane drafts a will with thestmentary capacity, the will is valid

REVOCATION OF THE LAST WILL AND TESTAMENT

• subsequent document - The testator creates a document describing the will and simply states their intention to revoke the will. • Subsequent Will - The testator drafts a more recent will, which generally includes the statement that the more recent will "revokes any and all prior wills". • Codicil - A codicil is a document that merely changes a will. All of the requirements and formalities that apply to the creation of a will also apply to the creation of a codicil. The only exception is that a codicil need not transfer property to be valid. Thus only changing the executor would still be a codicil even though no property is being transferred. When a codicil is used the original will remains in full force and effect except for the terms of the codicil. Thus a codicil is frequently used to add or delete an heir, or to include subsequently acquire property, etc. • Marriage - Since a surviving spouse has the right to an elected or forced share of the deceased spouse's estate, the marriage revokes a will created prior to the marriage. However, the prior will is only revoked to the extent necessary to transfer to the surviving spouse the amount of assets to fulfill the forced or elected share • Divorce - The divorce terminates the will of either party to the extent that the divorced spouse was mentioned in the will. Thus the divorced spouse will neither receive property nor be appointed to administer the estate. However, if after the divorce the parties still desire to leave property to their "former spouse" they can simply re-execute, sign again, the original will and indicate that it was signed at a date after the divorce. •Alteration/destruction - Placing lines through terms, scratching out, cutting out, etc. are all ways that portions of a will are revoked. • After born child rule. A child does not have a right to receive a share of the parent's estate which would be analogous to the spouses elected share. However several states have a rule that if a child is born after the parent created a will the child is entitled to receive the share the child would take as if the parent died intestate. This rule is based on the theory that the parent may not have desired to leave property to the children they knew, but the parent could not make such a decision of children not born at the time the will is created.