Other Provisions Applicable to Both Testate and Intestate Estates

Question 1

Simultaneous Death

Answer 1

ex. A and B are husband and wife and die in accident which it cannot be determined who died first.
1. Wills - A’s will treated as if A survived B. B’s will treated as if B survived A
2. Intestacy: For A’s property, A is presumed to have outlived B, B is presumed to have outlived A
3. Life Insurance: Primary beneficiary deemed to die before the insured, so the proceeds are paid to secondary beneficiaries.
4. JTROS- A and B own property as JTROS - 1/2 of property passes as though A survived, and the other half passes as though B survived. They are treated as TIC’s
- Can remedy this problem with survivorship clause

Question 2

Survivorship Clauses

Answer 2

• Where the testator includes a clause in the will that requires the beneficiary survive him by a certain period of time in order to take the property.
• These would prevent simultaneous death presumptions from being imposed

Question 3

Killing for Inheritance

Answer 3

When an individual kills another individual FELONIOUSLY AND INTENTIONALLY, the slayer shall not take from the victim’s estate; rather, the slayer is treated as if he/she predeceased the victim.

Felonious = felony murder, murder, voluntary manslaughter
**If no conviction, then there could be clear and convincing evidence brought to the probate court to establish the nature of the killing.

Question 4

Renunciation

Answer 4

An heir may renounce his/her interest provided the renunciation:

1. is accomplished BEFORE acceptance of the property;
2. is accomplished in writing, and
3. is filed with the court or the personal representative within 9 months of the death of the decedent.

*Renunciation acts as if they predeceased the testator

Question 5

Will Contracts

Answer 5

Contracts to make a will, revoke a will, or to die intestate must be

1. In writing and
2. Signed by the party to be bound

Question 6

Joint and Mutual Wills

Answer 6

1. Joint Will - a will of two or more persons executed on the same piece of paper
   - It may be probated at the death of one party, and again at the death of the other
2. Mutual Wills- Separate wills of two or more persons that make reciprocal dispositions of each person’s property
   - Revocation of a joint will or one of the mutual wills is not deemed to revoke the testator’s will
   - The mere execution of a joint or mutual will does not create a K by the testator not to revoke the will.