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Unit5.pptxProbate Law
Funeral Service Law - Walker
Uniform Probate Code
: a model law intended to achieve uniformity in probate proceedings throughout the U.S.
Created in 1969 by the National Conference of Commissioners on Uniform State Laws (NCCUSL)
Amended in 1990 as a model code that states could adopt to standardize probate laws.
Entire code adopted by 18 states.
Other states have adopted parts of the code.
Uniform Probate Code – Adopted in Full
Alaska
Arizona
Colorado
Florida
Hawaii
Idaho
Maine
Massachusetts
Michigan
Minnesota
Montana
Nebraska
New Jersey
New Mexico
North Dakota
South Carolina
South Dakota
Utah
Probate Law
Will:
A written instrument prepared in the form prescribed by law that provides for the disposition of a person’s property and takes effect after death.
Legal Age
47 states recognize “maker” to be a minimum of 18
Some southern states set ages from 14-16
Texas - 18 years of age
Testamentary Capacity
Know the nature of the act of making a will.
Know the natural objects of his/her bounty.
Know the nature, extent, and value of his/her property.
Understand the disposition
Formality
In Writing
Signed by Testator/Testatrix
Testator : a person who makes a valid will.
Number of Witnesses Varies by State
Special Kinds of Wills
Holographic – written entirely in longhand by the testator/testatrix
Nuncupative – oral Will declared by the testator in the presence of witnesses, made during the testator’s last illness. It only applies to personal property.
Soldiers and sailors – military personnel can typically dispose of personal property orally or written without complying with formalities required of other wills.
Revocation by Act of Testator/Testatrix
:the omission or cancellation of an instrument, act, license or promise.
Destroy
Write New
Revocation by Operation of Law
Divorce
Marriage or Remarriage
Birth of Children/Adoption
Codicil
: an addition or amendment of a last will and testament.
Must be dated, signed and witnessed and executed just as a will would be.
Must make reference to the will it amends.
Can add to, subtract from or modify the terms of the original will.
Distribution Problems Under the Will
Abatement
Ademption
Death of Heir
Spouse’s Election to Take Against the Will
Disinheritance
Abatement
: a proportional reduction in a monetary bequest because of insufficient funds (if the testator makes bequests of money in the will and the estate does not have enough money to pay the bequests, then the legatees will receive a proportionate share of the bequests).
Ademption
: the extinction or withdrawal of a legacy under a will by an act equivalent to revocation (if the testator makes bequests of specific property and the estate does not have the property at death, the legatee receives nothing).
Spouse’s Election to Take Against the Will
a spouse may elect to take that share of property that would have been received had the deceased died without leaving a will,
or the share provided by statute, if the spouse’s will does not leave as large a share.
Death of Heir
One who inherits, or is entitled to receive property by will of laws intestacy
Legatee – one who inherits personal property under a will
Devisee – one who inherits real estate under a will
Law of Intestate Succession
: the succession of an heir at law to the property and estate of his ancestor when the latter has died without a will.
DISINHERITANCE
Methods of Distribution
When a person dies intestate, the property is distributed in accordance with the state law of descent.
The property of the intestate goes to any children subject to the rights of the surviving spouse.
Per Capita – “Per Head”
: the method of dividing an estate by which an equal share is given to each of a number of persons, all of whom stand in equal degree of kindred to the decedent.
If all the children were living at the time of an intestate’s death, and the spouse was dead, the property would be distributed per capita.
Per Stripes
: the method of proportionately dividing an estate between beneficiaries according to their deceased ancestor’s share.
Distribution among heirs according to their relationship to the deceased.
If one child predeceased the intestate and left two surviving children, then the property would be divided into equal parts on the basis of the number of children the intestate had.
The dead child’s part would then be divided into two equal parts with one of these parts going to each of the grandchildren. This divides the property per stirpes.
Escheat
: the forfeiture of a decedent’s property to the state in the absence of heirs.
Administration of the Estate
Appointment of Personal Representative
Executor/Executrix – a man or woman appointed by the will of a deceased person
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
Duties of Personal Representative
Inventory
Determine value of probate estate
Secured claims/liens deducted from value
real estate mortgage
personal property
File and pay decedent’s and the estate’s tax returns
Pay claims
Accounting – inventory value plus income less expenses
Distribution of Estate
Solvent Estate
Formal court administration as required
Informal distribution by agreement
Heirs
Legatees: One Person to whom a legacy is bequeathed
Devisees: leave (usually real estate) to someone by the terms of a will
Insolvent Estate
State Statute Controls Priority of Claims
Administration expenses
Funeral expenses – are a preferred claim
Taxes
Last illness: Medical bills due for the last illness or care before deceased passed away.
Other examples
Wages
Child support
Secured claims
Unsecured claims
Addition Estate and Health Care Documents
Power of Attorney - POA
an instrument in writing authorizing one person to act as an agent for another. The power of attorney is revoked on the death of the principal by operation of law.
General Power of Attorney
an instrument in writing authorizing one person to do anything for the principal. In other words, one party has full power of attorney for another party.
Springing Power of Attorney
an instrument in writing authorizing one person to act as an agent for another affective only upon a certain event occurring.
Durable Power of Attorney
exists when a person executes a power of attorney which will become or remain effective in the event he or she should later become disabled.
Living Will
a document which governs the withholding or withdrawal of life-sustaining treatment from an individual in the event of an incurable or irreversible condition that will cause death within a relatively short time.
Health care directive
Power of attorney for health care
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