Estates and Future Interests

Question 1

Introduction to Wills

Answer 1

Will: the legal instrument by which a person directs how his or her property is to be distributed at death; typically statutes require at least two witnesses sign the will and certify that the person making it was of sound mind and acted of her own volition

Question 2

Testator

Answer 2

The person who makes the will. If a person dies with a will, she is said to dies testate. If a person dies without a will, he is intestate.

Question 3

Holographic Will

Answer 3

Most jx’s require two witnesses to sign a will. A holographic will, which is handwritten and signed by the testator, is valid without witnesses.

Question 4

Estate

Answer 4

The assets the decendent owns at death. Property held by the decedent in joint tenancy would not be considered part of the estate, because the decedent’s interest was extinguished at death.

Question 5

Devise

Answer 5

The gift of a real property in a will. A testator devises a property to a devisee.

Question 6

Residuary Clause

Answer 6

After making specific devises and bequests, a will should include a paragraph designating who should receive “the rest, residue, and remainder” of the estate. Even if a testator believes she has disposed of her entire estate, the residuary clause may come into play if one of those devises is declared invalid or lapses due to the previous death of a named beneficiary. In addition, a beneficiary may decline to accept a devise or bequest (called a disclaimer).

Question 7

Executor

Answer 7

The person named in the will and appointed by the court to carry out its provisions. In intestacy, or when the named executor cannot serve, the court will appoint an administrator.

Question 8

Probate

Answer 8

The legal process for proving the validity of a will and distributing the estate according to its terms. Technically, the process of distributing an intestate estate is called administration, but since probate courts have jx over both processes, the term probate is commonly used to refer to both.

Question 9

Intestate Succession

Answer 9

Distribution of the estate of a person who dies without a will. Each state has statutes that designate who will inherit the decedent’s property. Technically, the term inherit refers only to the receipt of property by intestate succession, but it is commonly used for devises ansd bequests as well. Intestacy statutes vary, but typically provide for distribution to:

• surviving spouse: usually takes entire estate if no children
• issue: any descendents of the decedent
• ancestor: any predecessor of family lineage, such as a parent.
• collaterals: descendents from the same ancestor. Collaterals take according to the degree of relationship - siblings would take before aunts and uncles, who would take before cousins.
• escheat: if no heirs, estate goes to state treasury.

Question 10

Heirs

Answer 10

A person who inherits property by intestate succession. NOte carefully that the legal definition of heir does NOT refer to a devisee or legatee. Note also that you do not have heirs until you die - before then, you have heirs apparent, who would be your heirs if you died today, but they will not become your heirs until your death.

Question 11

Revocation

Answer 11

The testator may revoke a will in many states either by drafting a new will, which explicitely or impliedly revoked the old one, or by a physical act, such as tearing up the old one or marking it void.

• This makes a will different from a deed, which is the instrument used to convery property inter vivos. Once a deed is signed and delivered, it may not be revoked by the grantor, while a will can always be changed or revoked (at least until death or incompentency).

Question 12

Types of Estates and Future Interests

Answer 12

1. Fee simple
   
   1. Has the potential of infinite duration
      
      1. “To A and her heirs” or merely “To A.”
      2. The words “and her heirs” merely classify the estate that A receives as fee simple and do not give the heirs any interest
   2. May be conveyed by its owner to another person by sale or gift
   3. Devisable (may be conveyed by will)
   4. Inheritable (may pass to one’s heirs as determined by the intestate succession laws)
2. Life estate
   
   1. Has the potential of lasting until the death of the purchaser or another designated person or persons
   2. Not devisable or inheritable because it ends on the death of its owner
      
      1. “To A for life”
3. Life estate pur autre vie: an estate measured by the life or lives of another person or persons
   
   1. May be conveyed by its owner to another person by sale or gift
   2. Devisable
   3. Inheritable
      
      1. “To A for the life of B”
4. Words of purchase: identify the grantee
5. Words of limitation: identify the estate that the grantee takes