Legal Consequences of Death Chapter 36 Legal Consequences of Death

Why should a person have a will?

Possible Reasons: To give their property to whom they want after they die. Name a guardian for minor children. Provide for a family member with a disability. Name a representative to handle their affairs.

A Will A legal expression, usually in WRITING, directing how the decedent wishes his or her property to be DISTRIBUTED AFTER DEATH. DECEDENT = the person who dies Codicil-a formal document used to supplement or change an existing will.

Testate A person who dies with a will is said to die testate A gift of personal property that is made by will is called a bequest. A gift of real property that is made by will is called a devise. Heir refers to one who inherits property under a will from someone dying without a will.

Intestate If there is no will, then the person is said to have died intestate. Property is controlled and distributed by a court appointed person. See Figure 36.5, page

Executor Personal representative appointed by the court (male). Executrix = female.

Estate The property of the deceased. What are the different types/forms of this “property?” Estate Taxes Funeral Cost

Death With a Will Testate Testator = the maker of the will (male). Testatrix = female Direct his or her estate’s resources to where they can do the most good.

Executor or Executrix Personal Representative to carry out the DIRECTIONS IN THE WILL. Can be exempt from paying bond (a sum of money to the court to insure the duties are properly performed). Name a guardian for the children.

Living Will Document directed to attending physicians regarding a person’s choices about the use of life-support systems in treatment for terminally illness or vegetative state.

Basic Will Requirements Testamentary intent – clear intention to make a will. Testamentary capacity Writing signed at the end and witnessed by at least two adult witnesses who will not inherit under the will.

Amendment of a Valid Will A will can be changed or canceled at any time during the “maker’s” life. Keep it current: Marriage Divorce Birth of Children Significant changes in a person’s life. **Amendments or a new will

Codicil Formal, written, and witnessed amendment.

Special Types of Wills Holographic Will – WRITTEN entirely by the decedent’s own hand and signed by him or her. Changes must also be made in the handwriting of the maker. Nuncupative Will – ORAL WILL. Recognized in some states if proclaimed during the maker’s last illness or by service personnel on active duty. **Must be witnessed. Sometimes limited to distribution of personal property.

Revocation of a Will DESTROYING OR DEFACING THE WILL. Marriage of the Maker Adoption of a child. Divorce settlement revokes parts. Written revocation in a later will.

Procedure for Estate Resolution First – offer proof of death. “Enoch Arden Laws” – if someone vanishes without a trace. Usually five to seven years of absence. Then – Assembling, preserving, inventorying and appraising the assets and collecting debts. Giving public notice of the estate and the necessity for filing claims against it within the statutory period. -- Typically 6 months.

3. Paying valid claims against the estate 4 3. Paying valid claims against the estate 4. Distributing the Remaining property according to the will or statute. **Personal representative will be held liable for failure to reasonably carry out her or his duties.

Distributions Without a Will Vary considerably from state to state. Look at page 385 – Hawaii – Cultural Diversity in Law.

Distributions With a Will Best carried out with the help of a lawyer. PER CAPITA DISTRIBUTION – Lineal Descendants split the property equally. PER STIRPES DISTRIBUTION – Lineal Descendants split equally what a deceased parent would have received but nothing if the parent still lives. Page 382.

Escheats No inheritors. Property reverts to the state.