1. The Law of Succession: Death Testate or Intestate
Chapter 3

2. Death Testate or Intestate
Testacy
Death with a valid will
Intestacy
Death without a valid will

3. Holographic Will A will written by the testator’s own hand
Validity varies among states

4. Nuncupative Will An oral will Spoken in the presence of witnesses
Generally not valid except in extreme circumstances

5. Statutory Will
A fill-in-the-blank will created and authorized by state statute

6. Joint and Reciprocal Wills
Joint Will
A single document signed by spouses as their will
Reciprocal Will
Separate and identical wills made by spouses
Reciprocal provisions in each will
Agrees that neither spouse will change his/her will after the death of the other spouse

7. Living Will
A document separate from a will; expresses a person’s wish to be allowed to die a natural death and not be kept alive by artificial means

8. Types of Gifts in a Will Specific Bequest or Legacy Specific Devise
A gift of a particular item or class of personal property
Specific Devise
A gift of real property

9. Legacy Demonstrative General
A gift of a specific monetary amount from proceeds of the sale of a particular item of property or from some identifiable fund
For example: $10,000 from the sale of a house
General
A gift of a fixed amount of money from the general assets of the estate

10. Residuary Legacy or Devise
A gift, either by legacy or devise, of all the testator’s property not otherwise disposed of by a will

11. Gifts Not Distributed by the Terms of the Will
Ademption
An intentional act by a testator, while alive, to cancel or revoke a gift or to deliver the gift to another or to the beneficiary
Lapse
Failure to distribute property as directed by a will because the beneficiary died before the testator died

12. Gifts Not Distributed by the Terms of a Will
Abatement
The proportional reduction of the legacies and devises in a will because of inadequate available funds from the assets of the testator's estate

13. Per Capita Distribution
Division of an intestate’s estate by giving an equal share to the persons who are related to the decedent in the same degree of relationship
Distribution without benefit of right of representation

14. Degree of Kindred
The relationship between a decedent and his/her survivors that governs distribution of the estate
first, to a surviving spouse and lineal descendants
next, to lineal ascendants
next, to collateral relatives who are lineal descendants of the decedent's parents
next, to other next of kin, blood relatives of the decedent

15. Per Stirpes Distribution
Distribution of property by class or by right of representation
The estate is divided into as many equal shares as the decedent has children who are living or who are deceased, but have living descendants

16. Escheat
The passage of an intestate’s property to the state when there are no surviving blood relatives or a spouse

17. Rights of Survivors Surviving Spouse Right of election Forced share
Spouse’s choice of the statutory share or the share under the provisions of the will
Forced share
Share that spouse may choose pursuant to statute; alternative to choosing the share specified in the will

18. Divorce
If granted after execution of the will, the effect of the divorce on the will is determined by state law
Generally, divorce revokes the gift to the former spouse and not the will itself
Gifts to a former spouse usually pass to the residuary beneficiary
Legal separation does not change a spouse’s status

19. Marriage
Subsequent marriage may revoke the entire will, depending on the state
Compare to joint tenancy created prior to marriage

20. Premarital Agreement
A contract between spouses before their marriage, whereby property rights are predetermined
Usually used in a second marriage to protect children of the first marriage
Compare to postnuptial agreement

21. Children Adopted children Nonmarital children
Are treated the same as natural children
Nonmarital children
May inherit from nonmarried parents, but statutes vary among states

22. Children Pretermitted children Omitted children in a will
The will must be clear in stating that the omission was intentional
If a child is not mentioned in the will, it is assumed that the omission was inadvertent
Parents may intentionally disinherit children, but may not disinherit a spouse