4.04 Decedent's Estates

4.04.1

Terminology

Ademption

Ademption is the revocation, recalling, or cancellation of a legacy contained in a will by an act of the testator with the intention to do so.

Administration of a Decedent's Estate

Administration of a decedent's estate consists in the management and settlement of a decedent's estate by an executor, administrator, or personal representative.

Administrator

An administrator is a male personal representative appointed by the probate court to handle and settle the estate of an intestate decedent.

Administratrix

An administratrix is a female personal representative appointed by the probate court to handle and settle the estate of an intestate decedent.

Administrator ad litem

An administrator litem is appointed by the court to act as a special administrator to supply a necessary party to an action in which the decedent or his/her estate is interested.

Administrator Cum Testamento Annexo

Also called "Administrator C.T.A.", an administrator cum testamento annexo means administrator with will annexed, and is appointed by the probate court in two situations:

(1) When the maker of the will does not name an executor; or,

(2) When the maker of the will does name an executor, but the latter cannot serve due to a deficiency in qualification or competency, or refuses to act.

Administrator or Administratrix D.B.N.

Also called "Administrator De Bonis Non" means administrator of goods not administered. This personal representative is appointed by the probate court for the purpose of replacing a previous administrator who initiated but failed to complete the administration of an intestate decedent.

Advancement

An advance is money or property given by a parent to the child in anticipation of the share which the child will inherit from the parent's estate. An advancement is intended to be deducted from the portion the child will inherit from the parent.

Ambulatory Will

An ambulatory will is subject to be changed or revoked. The phrase merely denotes the power that a testator possesses to alter the will during the testators lifetime.

Ancestor or Ascendant

A person from whom another person is lineally descended.

Bequeath

To bequeath means to give property by will. Formerly, bequeath was used where personal property was given, and devise was used where real property was given. However, the courts have since construed bequeath to be synonymous with devise when used in a will and to refer to a gift of real as well as personal property.

Bequest

A bequest is a gift by will of personal.

Class Gift

A class gift consists of an aggregate sum to a body of persons, uncertain in number at the time thereof, and to be ascertained at a future time.

Codicil

A codicil is a supplement or addition to a will which may modify, amend or revoke provisions thereof.

Collateral Heir

A collateral heir is a person not in a direct line of lineal ascent or descent, tracing a kinship relationship to an intestate decedent through a common ancestor (e.g., brothers, sisters, uncles, aunts, nephews, nieces, cousins) and forming a collateral line of relationship.

Collaterals of the Half-Blood

Collaterals of the half-blood are collateral heirs related to an intestate decedent through only one common ancestor (e.g., having the same father or the same mother but not both parents in common).

Conditional Bequest

Before a conditional bequest takes effect or remains in effect, a particular event or nonoccurrence thereof must happen.

Consanguinity

Consanguinity is a relationship by blood through at least one common ancestor.

Curtesy

Curtesy is the common-law right of a husband, on his wife's death, to a life estate in his wife's property (lands and tenements of which she was seised and possessed in fee simple or in tail during coverture), provided there has been lawful issue of the marriage born alive who might have been capable of inheriting the estate. See Curtesy (3.96).

Death Transfer Taxes

Death transfer taxes are a governmental levy on property transferred to others by an individual after the transferor's death. Such taxes include the following:

Estate tax

An estate tax is levied on the decedent's privilege of transferring property at death. The tax is determined by the size of the estate.

Inheritance tax

An inheritance tax is levied on the beneficiaries' privilege of receiving property from the decedent. The amount taxed to each beneficiary is determined by the amount of the property received and by the relationship of the recipient to the decedent.

Decedent

The decedent is the deceased person, referred to as having died testate (with a will) or intestate (without a will).

Descendant

A descendant is related to the decedent in a descending lineal blood line.

Descent

Descent is succession to the ownership of an estate by inheritance.

Devise

As a verb, devise means to dispose of real or personal property by will. As a noun, devise means the testamentary disposition of real or personal property (Uniform Probate Code definition) and gift of real property through a will (non-Uniform Probate Code).

Devisee

A devisee is the recipient of a devise, that is, any person designated in a will to receive a devise.

Devolution

Devolution is the passing of property by hereditary succession.

Direct Heir

A direct heir is a person in the direct line of ascent or descent of the decedent, such as father, mother, son, daughter.

Distributee

A distributee is a person to whom personal property of the intestate decedent is distributed (Non-Uniform Probate Court definition); any person, other than a creditor or purchaser, who has received property of a decedent from the personal representative (Uniform Probate Code definition).

Distribution

Distribution of the estate is the apportionment and division under authority of the probate court of the remainder of the intestate's estate, after payment of debts and charges, among those who are legally entitled to share in the same.

Distributive Share

The distributive share is the portion which a given heir receives on the legal distribution of an intestate decedent's estate.

Domiciliary Administration

Domiciliary administration is the probating of a decedent's estate in the state where the decedent was domiciled at the time of death.

Dower

At common law, dower is the right of a widow to a life estate in the real property owned by her husband on his death. See Dower (3.96).

Estate of Inheritance

An estate of inheritance is a freehold estate or interest in land whose holder is entitled to enjoy the property for life and dispose of it by will.

While all estates of inheritance are freehold estates, all freehold estates are not estates of inheritance.

Estate Tax

See Death Transfer Taxes, above.

Execution of a Will

Execution of a will denotes the complete process of a will, the signing by the testator, the attesting by the witnesses, and the subscribing by the witnesses.

Executor

The male person named by the testator in the will to be the personal representative of the estate and carry out the provisions of the will.

Executory Devise

An executory devise is an estate in real property to take effect in the future pursuant to the terms of a will and which, under common law, was void for failure to comply with the technical requirements covering future interests. Executory devisees are now generally valid by statute.

Executrix

The female person named by the testator in the will to be the personal representative of the estate and carry out the provisions of the will.

Family Allowance

A family allowance is an award to be paid by the personal representative of a decedent's estate out of the assets of the estate to provide for the daily necessities of the surviving family during the period of readjustment following the decedent's death, until such time as a final settlement or award can be determined and effectuated.

Federal Estate Tax

Federal estate tax is imposed upon the transfer of the total taxable estate and not upon any particular legacy, devise, or distributive share. The tax is neither a property tax nor an inheritance tax.

Forced Heirs

Forced heirs are those persons whom the testator cannot deprive of the portion of the estate reserved for them by law, except in cases where the testator has a legal cause to disinherit them.

Foreign Will

A foreign will is made and executed in, and in conformity with, the laws of a state other than the state in which it is offered for probate, or made and executed in, and in conformity with, the laws of a foreign country.

General Devise

A general devise is money payable out of the general assets of the estate.

General Legacy

A general legacy is money payable out of the general assets of a testator.

Gift Causa Mortis

A gift causa mortis is a gift of personalty, made in expectation of death, completed by actual delivery of the property, and effective only upon the death of the donor.

Gift Tax

A gift tax is a tax imposed by the federal government on transfers of property by gift during the donor's lifetime.

Gross Estate of Decedent

The gross estate of the decedent is the value of all property left by a decedent before deductions; that is, debts, taxes, and other expenses or liabilities.

Half-Blood

Half-blood denotes the degree of relationship which exists between those who have the same father or the same mother, but not both parents in common.

Heirs or Heirs at Law

Heirs or heirs at law are those persons, including the surviving spouse in some states, who are entitled under the statutes of intestate succession to the real and personal property of a decedent.

Hereditaments

Hereditaments are every kind of inheritable property including real, personal, corporeal and incorporeal.

Holographic Will

A holographic will is entirely written, dated, and signed by the testator's own handwriting.

Inchoate Right of Curtesy

The inchoate right of curtesy is the right that a husband may have in his wife's real estate but which will come into existence only at a later date if the wife should die and the husband survive her. The inchoate right of curtesy has been abolished by statute in many states.

Inchoate Right of Dower

The inchoate right of dower is the right that a wife may have in her husband's real estate.

Intestable

An intestable is one who has no testamentary capacity, such as an infant or an incompetent.

Intestacy

Intestacy is the state or condition of dying without having made a valid will or without having disposed of property by will.

Intestate

As an adverb, intestate is the condition of a person who dies without making a will. As a noun, intestate is a decedent who has not made a valid will.

Intestate Succession

Intestate succession occurs when the decedent has left no will or when the decedent's will has been revoked or annulled.

Intestate Succession Laws

Intestate succession laws are that body of law provided by each state in order to determine the manner in which a decedent's property will be distributed when the decedent has no valid will.

Issue

Issue means persons who have descended from a common ancestor. It is a broader term than children and includes lineal descendants of any degree (children, grandchildren, etc.). Adopted and illegitimate children may be considered as issue.

Kin or Kindred

Kin denotes a person's relatives collectively as a group of persons descending from a common ancestor, or constituting a family clan, tribe, or race. In a general sense, kin may be used to include relations both by blood and marriage.

Known Heirs

Known heirs are identifiable persons whose right to inherit is dependent on the nonexistence of other persons nearer or as near as the ancestor in the line of descent.

Lapsed Devise

A lapsed devise fails or takes no effect by reason of the death of the devisee before the testator, or by reason of the unwillingness of the devisee to accept the devise.

Lapsed Legacy

A legacy is said to lapse when the legatee dies before the testator dies or before the legacy is payable.

Last Will and Testament

A last will and testament is a legally enforceable declaration of a person's intention to dispose of property, both real and personal, after death.

Laws of Descent

The laws of descent govern the descent of real property from decedent to heir.

Letters of Administration

Letters of administration are an instrument in writing granted by a probate or surrogate court to a person appointed to act as administrator to settle the estate of a decedent who has left no will. These letters constitute the administrator's legal authority to act. In case of a testacy, if the person named in the will as executor is deceased, incapable, or unwilling to act, "letters of administration with will annexed" are granted. Also called Administration Letters.

Letters Testamentary

Letters testamentary are granted by a probate or surrogate court, or other authority having jurisdiction over the probate of wills, empowering the executor named in a will to dispose of the estate in accordance with its terms. Letters testamentary make it known that the will in question has been properly proved and that the estate is to be settled.

Lineal

Lineal refers to a person related to an intestate decedent in a direct line of kinship either upward in an ascending blood line or downward in a descending blood line.

Lineal Ascendants

Lineal ascendants are persons with whom a person is related in the ascending line.

Lineal Descendants

Lineal descendants are persons with whom a person is related in the descending line.

Mortmain Statutes

Mortmain statutes limit the power of a testator to make charitable gifts.

Net Estate

Net estate under an estate tax statute means that which is left of the gross estate after the satisfaction of various deductions allowed by statutes in the course of settlement.

Next of Kin

Next of kin are persons nearest of kindred to the decedent. Those most nearly related by blood relations according to the law of consanguinity who are in line to take under the statutory distribution of intestate estates.

Nonprobate Asset

A nonprobate asset is property that passes by operation of law, such as life insurance or joint tenancy property.

Notice of Creditors

Notice of creditors is written notice posted in public places or printed in newspapers to creditors of a decedent's estate to present their claims for payment. It is also a notice to debtors to come in and pay what they owe the estate.

Nuncupative Will

A nuncupative will is an oral will declared by the testator before witnesses in the testator's final sickness and later reduced to writing and subscribed by witnesses. Such a will is not valid in some states and in others only valid as to a limited amount of personal property.

Olographic Testament

See Holographic will, above.

Per Capita

Per capita means by the head; that is, by the number of individuals. Persons succeed to an inheritance per capita when they individually take equal shares.

Per Stirpes

Per stirpes means by representation. It is taking a share under the law of descent by right of representation, as opposed to taking per capita, or in one's individual right.

Personal Representative

The "Personal Representative" is a term used by the authors of the Uniform Probate Code to refer to the person who is responsible for the administration of a decedent's estate. The term is intended to eliminate the confusion that frequently arises from the traditional practice of using different terms (in both masculine and feminine forms) for the manner in which the estate administrator is elected. States that have adopted the term Personal Representative use it to replace "executor" and "executrix". Personal representative is also used to replace "administrator" and "administratrix".

Posthumous Child

A posthumous child is born after the death of the father, or, after the death of the mother.

Pretermitted Heir

Pretermit means to omit an after-born child from one's will. A pretermitted heir is one who as a child or a descendant of another would have shared in the estate of the latter if the latter had died intestate but who is not named in or provided for by the will left by such ancestor.

Probate

Probate is the formal judicial proceeding to prove or confirm the validity of a will.

Probate Assets

Probate assets consist of property passed by will or descended as intestate property.

Probate Court

A probate court has jurisdiction over the probate of wills, the grant of administration, and the supervision of the management and settlement of the estates of decedents, including collection of assets, allowance of claims and distribution of the estate.

In some states, probate courts also have jurisdiction over the estate of persons (minors, incompetents) incapable of managing their properties. A probate court is also known in some areas as a surrogate court.

Representatives or Legal Representatives

Representatives or legal representatives have two different meanings in the law of decedent's estates. In their limited sense, the terms are at times used interchangeably with personal representative to signify executors or administrators. The broader meaning of the terms include all those who take by will or descent.

Residuary Bequest

Residuary bequest means all personal property remaining in an estate after all obligations and debts, including specific bequests, have been met or paid.

Residuary Devise

Residuary devise means all personal property remaining in an estate after all obligations and debts, including specific devises, have been met or paid.

Residuary Devisee

A residuary devisee is a person to whom real property of an estate is devised in the residuary clause of a will after the specific devisees have received their shares. At common law, real property is devised and personal property is bequeathed.

Residuary Estate

A residuary estate is that portion of an estate remaining after all debts and obligations of the estate, together with all the specific bequests and devises, have been paid or met.

Residuary Legatee

A residuary legatee is a person named in the residuary clause of a will who shares in the distribution of the testator's personal property after the estate's debts and expenses have been paid and the other legacies have been distributed.

Right of Election

The right of election is the right of a surviving husband or wife to choose to take under state law that spouse's share in preference to the provisions made in the deceased person's will.

Settlement

Settlement is the final distribution of the assets of a decedent's estate by an executor or administrator.

Specific Devise

A specific devise is a gift by will of lands particularly named or specified.

Specific Legacy

A specific legacy is a gift by will of a particular article of personal property.

Succession

Succession is the devolution of title to property under the laws of descent and distribution. When applied to real property, succession denotes those persons who take by will or inheritance and excludes those who take by grant, deed, gift, or any form of purchase or contract.

Surrogate

In some jurisdictions, surrogate is the name given to the judge or judicial officer who presides over the administration of probate matters, guardianships, etc.

Surviving Spouse's Allowance

A widow or widower is entitled to an allowance for maintenance and support under the laws of some states.

Testable

A person who has the capacity to make a will is said to be testable.

Testacy

Testacy is the state or condition of leaving a will at one's death and is the opposite of intestacy.

Testament

Historically, a testament is the disposition of personal property effective upon the death of the testator, but in modern usage, it is a will disposing of real or personal property.

Testamentary Capacity

Testamentary capacity concerns the ability of the individual testator; it is to be distinguished from testamentary power which involves a privilege under the law. Generally, under modern statutes, a person of sound mind and otherwise competent has the capacity to dispose of property, unless in contravention of some statute or common-law rule. The general power of testamentary disposition is founded on the assumption that a rational will is a better disposition than any that can be made by the state law itself.

Testamentary Class

A testamentary class consists of persons included and comprehended under some general description in a will, or bearing certain relation to the testator, or having a common relation to teach other, or sustaining the same relation to the bequest, or included together in a grouping made by the testator.

Testamentary Disposition

A testamentary disposition is the disposition of property by deed, will, trust, or otherwise, but in such a manner that it shall not take effect unless or until the grantor dies.

Testamentary Power of Sale

A testamentary power of sale of real or personal property can be conferred upon the executor of the estate of the decedent by will.

Testamentary Trust

A testamentary trust is created by terms of a valid will.

Testate

A testate is one who dies leaving a valid will.

Testator

A testator is a male maker of a will.

Testatrix

A testatrix is a female maker of a will.

Will

A will is an instrument executed by a competent person, in the manner prescribed by statute, whereby the testator makes a disposition of property to take effect upon death. The instrument must be, during its maker's lifetime, of an ambulatory and revocable nature.

Witnessed Will

A witnessed will is a formally executed will, to be distinguished from a holographic will or a nuncupative will.

4.04.2

In General

When a person dies owning an estate of inheritance in real property, it passes to the person to whom it is devised by will, or in the absence of a valid will, to the persons who succeed to the estate as heirs.

The decedent's estate is generally chargeable with the payment of:

  • Claims of creditors.
  • Certain statutory allowances in favor of the surviving spouse and the unmarried minor children.
  • State inheritance taxes and federal estate taxes (depending on the value of the estate).

The shares of distributees which pass by intestate succession or under a residuary disposition in a will are also charged with the payment of legacies.

The property of the estate may be sold, mortgaged, leased or exchanged by the executor or administrator under order of the probate court for the purpose of paying claims, allowances, legacies, or taxes, or for any other purpose authorized by statute.

Approval of a will is commonly called admitting the will to probate. In most states, the court which handles the approval of wills and the administration of decedent's estates is called a probate court, from the Latin "probare" (to prove).

The administration of a decedent's estate is in the charge of an administrator (person appointed by the court when the decedent dies intestate; or, of an executor (person named in the decedent's will); or of an administrator with the will annexed (person appointed by the court when the will does not name an executor or the one named fails to qualify), who is also known as an administrator cum testamento annexo or administrator C.T.A.; or of a person appointed to complete the administration (when the administrator originally appointed has not done so) who is known as an administrator de bonis non or administrator d.b.n..

If the assets of a decedent are not all located in the domiciliary state, it is usually necessary for a personal representative of a decedent to be appointed in each state where there are assets. The proceeding receives the name of ancillary administration, and such a personal representative is called an ancillary administrator.

The basic steps to the administration of any decedent's estate are the following:

  • Admission of the will to probate (if a testacy).
  • Opening of the administration of the estate.
  • Inventory of the estate.
  • Payment of claims, taxes and statutory allowances.
  • Closing of the estate.
  • Distribution of the assets of the estate.

The administration of a decedent's estate is purely statutory.

4.04.3

Death Of A Party In Interest--Possible Probate Situations To Be Encountered When Examining The Title

Possible probate situations encountered in regard to individuals who die holding title to land, either by themselves or as tenants in common with other individuals, are the following:

  • Party Dying Without A Will (Intestacy)

    No administration has been opened but there is time to commence one.

    Administration is pending, but the time to file claims or have a will admitted to probate has not yet expired:

    • Sale by the heirs.
    • Sale by the personal representative through an order of the court.
    • Sale by the personal representative under statutory power in an independent or unsupervised administration.


    Administration is pending, but the time to file claims or have a will admitted to probate has expired.

    • Sale by the heirs.
    • Sale by the personal representative through an order of the court.
    • Sale by the personal representative under statutory power in an independent or unsupervised administration.


    Administration was commenced and is fully completed. The estate is closed.

    No administration was ever opened and the time to commence one has already lapsed. Note: In some jurisdictions, administration of a decedent's estate can always be opened.

  • Party Dying With a Will (Testacy)

    No administration has been opened, but there is time to commence one.

    Administration is pending, but the time to contest the will and file claims has not yet expired:

    • Sale by the devisees.
    • Sale by the personal representative through an order of the court.
    • Sale by the personal representative under the provisions of the will.
    • Sale by the personal representative under statutory power in an independent or unsupervised administration.


    Administration is pending but the time to contest the will and file claims has expired:

    • Sale by the devisees.
    • Sale by the personal representative through an order of the court.
    • Sale by the personal representative under the provision of the will.
    • Sale by the personal representative under statutory power in an independent or unsupervised administration.


    Administration was commenced and is fully completed. The estate is closed.

    No administration was ever opened and the time to commence one has already lapsed. Note: In some jurisdictions, there is no time limit to probate a will.

4.04.4

Special Statutory Proceedings In Regard To The Administration Of Decedent's Estates

Independent or Unsupervised Administration

In certain jurisdictions, statutes provide for the independent or unsupervised administration of decedent's estates. The main purpose of these statutes is to streamline and uncomplicate the probate proceedings. They provide a mechanism to administer estates independently of the judicial system and although independent personal representatives are directed to administer the estates according to law and without the intervention of the court, statutes always provide sufficient flexibility so that the court's jurisdiction may be selectively invoked.

Generally speaking, in an independent or unsupervised administration, the court's only mandatory duty, without the request of some interested party or the independent personal representative, is to order the independent personal representative to: (1) file a statement of account or petition for complete settlement within the time established by statute; and, (2) apply for an extension of time to file the statement or petition.

Small Estates Administration

In certain jurisdictions, statutes establish special and expeditious proceedings for the administration of a decedent's estate of relative little value. This shortened form of probate is called small estate administration, summary administration, or administration unnecessary.

Whatever the procedure may be called, most states require similar basic steps. Some states merely require the completion of a simple affidavit (a sworn statement or declaration) attesting to the death of the decedent and the name(s) of the heirs. Other states require a court order for the transfer of the estate's assets. Still other states require an inventory and appraisal of the estate assets and notice of administration to all heirs and creditors.

Small probate estates may qualify for small estate administration only if certain conditions are met. The names and procedures for a small estate administration vary from jurisdiction to jurisdiction, but states generally require that the probate estate's total value not exceed a maximum amount set by law and that it not include any solely owned real property.

The maximum dollar value of estates that are eligible for small estate administration ranges form $400 to $60,000, depending on the state. The maximum for most states, however, falls between $5,000 and $10,000. These figures are actually a little misleading: when valuing the decedent's estate to determine its eligibility for small estate administration, it is possible to exclude certain large assets which are part of the decedent's gross estate (the total value of all assets owned or shared by the decedent, whether subject to probate or not).

The maximum dollar limits apply only to the total value of the decedent's solely owned probate assets, such as vehicles, stocks, bonds, and bank accounts registered in the decedent's name only. Any assets of the estate which were held by the decedent in some form of joint ownership or in trust can probably be excluded when calculating the value of the probate estate. Insurance benefits that name a beneficiary may also be excluded.

Some states allow the value of vehicles to be deducted from the probate estate, along with the value of any liens or encumbrances on probate property. The value of homestead exemptions and family allowances as defined in state law may also be excluded from the probate estate. States that recognize community property allow one-half of the value of the community property to be deducted from the probate estate when one spouse dies. Some states allow other deductions.

In this connection, state law must be fully researched.

Simplified Estates Acts

In certain jurisdictions, statutes provide for the simplified administration of decedent's estates. The main purpose of these statutes is to provide an alternative to a fully supervised probate administration together with the simplification of the probate proceedings.

4.04.5

Limitations On The Passage Of Title By Devise Or Descent

Among the jurisdictions, the most frequently encountered statutory limitations on the passage of title to property by devise or descent are based on the following:

  • The application of the provisions of the State Simultaneous Death Act.
  • The statutory incapacity of aliens to take title by descent or devise.
  • The felonious killing of the decedent by an heir or devisee duly convicted.
  • The provisions of antenuptial agreements waiving the rights of one spouse in property of the other.
  • The cancellation of the rights of a surviving former spouse by a valid divorce.

4.04.6

Summary Of Intestate Procedures

The following is a general summary or guideline of the most common steps or procedures that integrate a formal or supervised intestate administration. It should be noted that these procedures differ on many points among the states:

  • Petition for the appointment of a personal representative (administrator) of the decedent's estate and for the issuance of letters of administration.

  • Court orders for a hearing and for notice to all the parties in interest and to the creditors.

  • Mailing of notice of rights of spouse and minor children (if required by state law).

  • Affidavit of notice of hearing to parties in interest and to creditors (notice to have been given as prescribed by state law).

  • Affidavit of military service.

  • Hearing.

  • Order appointing personal representative (administrator).

  • Oath of Administrator.

  • Bond of Administration (if required by state law).

  • Issuance of letters of administration.

  • Notice of the issuance of letters of administration.

  • Affidavit of notice of the issuance of letters of administration.

  • Application for federal identification number.

  • Notice to the I.R.S.

  • Measures to protect the assets of the estate (if necessary).

  • Inventory.

  • Appraisal.

  • Schedule of nonprobate assets.

  • Petition for allowance of selection of personal property.

  • Petition for statutory exemptions, maintenances, and allowances.

  • Order in reference to any of the above petitions.

  • Federal and state tax returns.

  • Payment of claims against the estate that were filed and allowed. In some jurisdictions, the payment requires an order of the court.

  • Final account.

  • Order for hearing on final account and petition for distribution and for mailed notice.

  • Affidavit of mailing order or notice of hearing on final account.

  • Order allowing final account.

  • Petition for order of complete settlement of the estate and decree of distribution.

  • Decree of distribution.

  • Petition for discharge of personal representative.

  • Order discharging personal representative.

  • Copy of order discharging personal representative sent to surety, if any.

4.04.7

Important Issues In Regard To An Intestacy

Law That Governs

The distinction between real and personal property acquires additional importance in resolving choice-of-law issues.

The state in which the land is located has the power to control the descent of real property and the jurisdiction to adjudicate questions about ownership. Accordingly, all questions of title to land are decided in accordance with the law of the state where the land is located.

The law of the state where the decedent dies domiciled controls the inheritance of personal property regardless of where the property is located.

Time at Which Property Descends or Passes

The right of heirs, known or unknown, who succeed to property under the laws of descent and distribution accrues immediately upon the death of the ancestor, subject only to the control of the court for the purpose of administering the estate.

Property that Descends or Passes

All interests in property, real and personal, legal and equitable, present and future, pass under the statute of descent and distribution upon the death of an owner who leaves no will disposing of those interests.

Property not Passing under a Will

All property belonging to a decedent at the decedent's death, but which for some reason does not pass under a will descends and is distributed as intestate property under the statutes of descent and distribution.

Persons Born After the Death of Intestate

The general rule is that persons who are not in being at the death of an intestate do not inherit from the decedent. However, posthumous children are in being, for the purpose of the rule, from the time of conception.

Taking Per Capita or Per Stirpes

These terms refer to methods of computing the share of an estate which is to be allocated to individual members of a class of heirs or distributees. To take per capita is to take equally with other children, other brothers and sisters, or other kin of the intestate, and in one's own right. Per capita means by the head or individual. To take per stirpes is to take, by representation, a share which a deceased ancestor would have taken had the deceased's ancestor survived the intestate.

Cotenancy of Heirs

When property of an intestate descends to two or more heirs under a statute of descent and distribution, the heirs take the property as tenants in common.

Proceedings to Determine Heirship

Statutes in several estates provide expressly for proceedings to determine heirship. The purpose of the proceedings being generally to determine judicially the heirs or distributees of the property of a decedent in a particular case.

The conclusiveness of a decree rendered in a proceeding to determine heirship varies under the statutes of the several jurisdictions.

4.04.8

Summary Of Testate Procedures

The following is a general summary and guideline of the most common procedures that integrate a formal or supervised testate administration. It should be noted that these procedures differ on many points among the various states:

  • Filing of the will.
  • Filing of codicils.
  • Petition to prove the will and for the appointment of a personal representative.
  • Court orders for a hearing and for notice to all the parties in interest and to the creditors.
  • Mailing of notice of rights of spouse and minor children (if required by state law).
  • Affidavit of notice of hearing to parties in interest and to creditors (notice to have been given as prescribed by state law).
  • Affidavit of military service.
  • Hearing.
  • Order admitting the will to probate and appointing a personal representative.
  • Issuance of letters testamentary.
  • Notice of the issuance of letters testamentary.
  • Affidavit of notice of the issuance of letters testamentary.
  • Measures to protect the assets of the estate (if necessary).
  • Inventory.
  • Appraisal.
  • Schedule of nonprobate assets.
  • Petition for allowance of selection of personal property.
  • Petition for statutory exemptions, maintenances and allowances.
  • Order in reference to any of the above petitions.
  • State tax returns.
  • Payment of claims against the estate that were filed and allowed (in some jurisdictions the payment requires an order of the court).
  • Final account.
  • Order for hearing on final account and petition for distribution and for mailed notice.
  • Affidavit of mailing order or notice of hearing on final account.
  • Order allowing final account.
  • Petition for order of complete settlement of the estate and decree of distribution.
  • Decree of distribution.
  • Petition for discharge of personal representative.
  • Order discharging personal representative.
  • Copy of order discharging personal representative sent to surety.

4.04.9

Important Issues In Regard To A Testacy

Law That Governs

Execution

The validity of a will and the provisions thereof are determined according to the law in effect at the time of the death of the testator rather than that in force when the will was executed unless the law in effect at the time of death was specifically enacted to apply only to wills subsequently executed.

Probate

Probate is the formal judicial proceeding to prove or confirm the validity of a will.

To the extent that it affects real property, the law governing what property may be passed by will is that of the state where the realty to be devised is situated.

The will of the decedent will customarily be admitted to probate and an executor or administrator appointed in the state:

  • Where the decedent was domiciled at the time of the decedent's death; or,

  • Where there are assets of the estate at the time of the decedent's death or at the time of the appointment of the executor or administrator; or,

  • Where there is jurisdiction over the person or property of one who is alleged to have killed the decedent by his wrongful act if the statute under which recovery is sought permits suit by an executor or administrator appointed in that state.

Necessity and Effect of Probate of Will

A will must be probated before its beneficiaries can establish their respective rights. It is the general rule that a will cannot be used in evidence as the foundation of a right or title to establish ownership to real or personal property until it has been duly probated.

Probate of the will is not necessary in order to vest title in the devisee, but it is vital to prove the title.

When a will is probated, it becomes free from collateral attack on the ground of genuineness, forgery, improper execution, lack of testamentary capacity, or revocation. After probate, these matters can be questioned only in direct proceedings to set aside or to contest the will. If the time has elapsed for direct attack, the probate is conclusive as to the external validity of the will.

When a will has been discovered after probate of a prior will or adjudication of intestacy, it may be probated and carried out, though parties relying upon the earlier decree will be protected. The above possibility presupposes there is no expiration of the statutory time during which a will can be admitted to probate.

Time at Which Property Passes--Nature and Extent of the Devisee's Title

In the absence of a statute or some provision in a will to the contrary, a devisee under a valid devise takes title to real property immediately upon the death of the testator. However, probate of the will is still necessary to determine that it is in the required legal form.

It should be noted that because the devisee is not considered a bona fide purchaser for value under the recording acts, in addition to recorded matters, the devisee takes title subject to all the unrecorded liens and equities suffered or created by the testator. Title is also subject to the regular probate matters, for example: payment of claims; liens; taxes; legacies; allowances; and, in some jurisdictions to the personal representative's right to possession of the right estate.

Unless otherwise provided by statute or the will, a devise of land passes into the devisee all the testator's interest therein.

A devisee cannot be compelled into accepting a devise. Devises are renounceable.

Property Which May Be Devised or Bequeathed

In general terms, any estate that is transmissible by operation of law or act of the owner is also devisable. Real and personal property are subject to testamentary disposition under modern statutes. Sometimes, statutes delineate which types of property or interests therein may be disposed by will.

A decedent cannot pass by will the title of property which would otherwise not pass by descent without a will.

Unless otherwise established by statute, after-acquired property may be passed by will.

Lapsed Devises

A lapsed devise refers to a devise or legacy that would have taken effect had the testator died the instant after the testator executed the will but which fails because the devisee or legatee has, in some way, become incapable of taking under the will between the time that the will was made and the time that the testator died.

It frequently occurs when the devisee or legatee dies before the testator. It also occurs that the beneficiary refuses to accept the devise or legacy.

In general, a lapsed devise passes as follows:

  • As provided or directed by the testator in the will; or,
  • In the absence of such a provision, it passes as provided by anti-lapse statute; or,
  • In the absence of a pertinent statutory provision, it falls into the residuary clause; or,
  • When this is not possible, it passes by intestacy.

Will Contest

The sole purpose of a will contest is to determine whether the purported will in question is the last valid will and testament of the testator or to determine whether the decedent has died intestate because there was no valid will. A will contest can be effectuated in two manners:

  • The opponent challenges the validity of the purported will and attempts to establish another will in its place.
  • The opponent challenges the validity of the purported will and attempts to convert the testacy into intestacy proceedings.

Generally, a will contest involves one or more of the following issues:

  • The testator's capacity to make a will.
  • Improper execution of the will.
  • Fraud
  • Forgery
  • Mistake
  • Duress
  • Undue influence
  • Revocation of the will
  • Mental Incapacity

Will contests are in rem proceedings since they deal directly with the will to determine the condition or status of the estate of a decedent as testate or intestate.

4.04.10

Using An Affidavit Of Heirship For The Purpose Of Determining Who Are The Heirs Of A Decedent

The heirship of a decedent who has died intestate and whose estate has neither been administered nor subject to be administered because of the lapse of time, is determined by the statute of descent and distribution. It is important to note that the law in effect at the time of the decedent's death is the one that establishes heirs.

In this regard, it is necessary to obtain the pertinent information in the form of an affidavit in recordable form containing facts, not conclusions, from which the Company can determine, by applying the rules of descent and distribution, the heirs of the decedent. The affidavit of heirship must contain the following information:

  • The exact time and place of death and final place of residence of the decedent.
  • Whether the decedent died testate or intestate.
  • Whether administration of the decedent's estate has been opened.
  • Whether the decedent's estate was sufficient in value so as to subject the same either to state inheritance tax or federal estate tax.
  • Whether all of decedent's debts (including expenses of last illness and funeral) have been paid.
  • Whether the decedent was survived by a spouse or former spouse.
  • Whether the decedent was survived by any child, natural born or adopted, or by any descendant, by birth or adoption of any deceased child or deceased adopted child, and if not, whether the decedent was survived by his/her mother or father, or by any sister or brother, either of the whole or half-blood or by adoption, or by any descendant, by birth or adoption of any deceased brother or sister, either of the whole or half-blood or by adoption.

4.04.11

Pretermitted Child Or Issue Of Child

In some jurisdictions, by statute, a child or other descendant omitted from the will is entitled to a part of the estate of the decedent. The object of such statutes is to guard unintentional disinheritance and to give the omitted child the same share in the estate of the intestate as the omitted child would have received had there been no will.

Ordinarily, statutes for the benefit of a pretermitted heir apply only to cases where a child or descendant is unknown or forgotten, or for some reason unintentionally overlooked. These statutes should not be considered as limitations on the power of disposal by will.

The pretermission statutes vary greatly in the details for the provisions that refer to the disinheritance of a child or descendant by will. Two broad classifications of the statutes have been made. The one statute provides that if a person dies leaving a child or descendants of a child not named or provided for in the will, the testator shall be deemed to have died intestate as to them. The other statute provides that if a testator fails to provide for a child in the will, that child shall receive a share of the estate, as in case of intestacy, unless it appears that the omission was intentional and not occasioned by accident or mistake. The Massachusetts-type statute emphasizes the intention of the testator as the material factor in determining whether or not the child or descendant is disinherited. The intention to disinherit, however, need not be stated in express terms.

4.04.12

Probate Sales

The factors to be considered in the examination of a transfer of real estate during the pendency of the administration of a decedent's estate are jurisdictional and relate basically to who is selling, mortgaging or leasing the property. The following considerations apply equally to sales, mortgages or leases:

Sale by the Heirs

If all the heirs decide to convey the property to an outsider, or some of the heirs elect to convey to one or more of the other heirs, the title acquired by the purchaser is subject to all the probate matters, allowances, liens, claims and taxes affecting the pending estate of the decedent. The rights of the surviving spouse, if any, must be properly disposed of.

Sale by the Devisees

The same general principle of sales by the heirs apply in sales by the devisees.

In some jurisdictions, the consent of the executor must be obtained and be made a matter of record. The rights of the surviving spouse, if any, must be properly disposed of.

Executor with Discretionary Power of Sale

A testator may have provided in the will for the executor to have the power to sell some or all of the decedent's assets.

Unless mandatory, the power is a discretionary one. This means that the executor has the power to decide whether or not to sell estate property. If so empowered by the will, the executor may sell estate property without the approval of the court.

Although in this case an order of the court authorizing the sale would not be necessary, there may be certain jurisdictional requirements with which the executor must comply, such as:

  • Recitals to be contained in the executor deed.
  • Bond to be filed by the executor.
  • Court's approval of the bond by the executor.
  • Notice to all interested parties.

In this respect, state law must be researched in regard to the following matters:

  • Whether an administrator with will annexed can exercise a power of sale under a will.
  • Whether homestead property may be sold by the executor without the written consent of the surviving spouse.
  • Whether non-homestead property may be sold by the executor without the written consent of the surviving spouse.
  • Whether, in addition to consenting, a surviving spouse must convey or quitclaim the property.
  • Whether the property being conveyed by the executor is subject to the payment of claims, allowances, liens, state inheritance taxes, federal estate taxes, and will contestability (if sold during the contestability period).

Executor Under a Mandatory Power of Sale

By the terms of the will, the testator may have directed or ordered the executor to sell certain real property belonging to the estate. A mandatory power of sale is present where the will imposes an absolute duty on the executor to sell the real property. Generally, the only discretion the will may give the executor relates to the time or manner of the sale.

The same general principles of executor with discretionary power of sale apply to executor with mandatory power of sale.

Sale Under an Order of the Court

The authority of an executor to sell the decedent's real property without a direction in the will is strictly limited to state law provisions. The same principle applies to an administrator. State law must be consulted in regard to the procedures to be followed in connection with sales under order of the court.

Sale By Personal Representative in an Unsupervised Administration of a Decedent's Estate

Pertinent jurisdictional law must be researched in order to ascertain the authority of the personal representative to sell descendent's property, if any, and the conditions for its exercise.

Sale By Personal Representative to Complete Decedent's Contract to Convey

Pertinent jurisdictional law must be researched in order to ascertain the authority of the personal representative to sell descendent's property, if any, and the conditions for its exercise.

4.04.13

Transfer Of Encumbrance Of Decedent's Real Property Upon An Order Of The Court

If the personal representative of the estate determines the necessity to sell, mortgage or lease any of the decedent's real estate the probate court, if so requested, may authorize the personal representative to sell, mortgage, or lease real property belonging to the estate under any of the following circumstances:

  • The decedent died intestate; or,
  • The will does not contain a power-of-sale; or,
  • The will contains a power-of-sale but the personal representative is reluctant to utilize it.

This procedure is totally statutory and strict compliance with the pertinent statutes is essential. It generally entails the following steps:

  • The personal representative files a petition to the court to be authorized to sell, mortgage or lease real property owned by the decedent's estate. The petition is to be presented to the court after the inventory and appraisal have been filed and must be based on a statutory ground.

  • The court enters an Order for Hearing Petition to Sell, Mortgage, or Lease. The order must set the date, place, and time for hearing and must be published and printed in the same manner as the notice of hearing to prove the will. Notice of this hearing in the form of the publication or a copy of the Order for Hearing must be sent to the devisees or heirs to comply with general probate notice requirements.

  • Hearing on the Petition to Sell, Mortgage, or Lease Real Property.

  • Entering of an order for the sale, mortgage, or lease of real property. The terms and conditions of the sale, mortgage or lease, in accordance with the pertinent statutes, are to be contained in the order. Also, in the event of a sale, the order must indicate whether the sale is to be public or private.

  • If required by the court, the real estate must be reappraised by two or more disinterested persons where a considerable period of time has elapsed since issuance of the order. This sometimes becomes necessary due to the possible substantial increase or decrease in the value of the property.

  • Occasionally, the court may require, at its discretion, that the personal representative post an additional bond for the sale of real estate.

  • After the sale, mortgage, or lease, the personal representative must file with the court a Report of Sale, Mortgage, or Lease. In the event of a public sale, additional documentation may be required to be filed.

  • The court authorizes the personal representative to execute and deliver the proper deed, mortgage, or lease.

  • Certified copies of the following documents must be filed in the county recorder's (register's) office:

    • Copy of the order for the sale, mortgage, lease of real estate.
    • Copy of the order of confirmation.
    • Deed, mortgage, or lease duly executed by the personal representative.

Note: Generally, the only additional requirement for a public sale is the publication of notice of sale for statutory requisit period in a local newspaper. Proof of such publication must be filed with the court before it will formally confirm the sale.

4.04.14

The Personal Representative

The "Personal Representative" is a term used by the authors of the Uniform Probate Code to refer to the person who is responsible for the administration of a decedent's estate. The term is intended to eliminate the confusion that frequently arises from the traditional practice of using different terms (in both masculine and feminine forms) for the manner in which the estate administrator is elected. States that have adopted the term Personal Representative use it to replace "executor" and "executrix". Personal representative is also used to replace "administrator" and "administratrix".

With few exceptions, the personal representative is the focal point of estate administration. It is the responsibility of the personal representative to initiate and complete the probate, make the inventory and distribute the estate's assets, pay claims and taxes from estate funds, engage any necessary professional assistance, and in general, to manage the affairs of the estate.

If the decedent died testate, the personal representative is usually named in the will. If the person named is unable or unwilling to act as a personal representative, or if no one is named in the will, then the personal representative must be selected according to the rules set by state law.

In many states, the personal representative is required to post bond insuring the loss of estate funds by negligence or fraud on the part of the personal representative.

Letters of administration or letters testamentary represent the official evidence of the personal representative's authority to act on behalf of the estate

4.04.15

Personal Representatives As Purchasers

In general terms, and unless otherwise provided by state law, a purchase by the personal representative of any asset of an estate, either directly or indirectly, without authorization by a proper order of the probate court or without consent or ratification by all the heirs or beneficiaries of the decedent, is fraudulent per se regardless of the price or the fairness of the sale. The obvious reason for this rule is the fiduciary capacity in which the personal representative of the estate operates.

Whether any such sale is void or voidable is a matter of the applicable to state law.

4.04.16

The Surviving Spouse

Under most statutes of descent and distribution, a surviving spouse is made an heir at law and distributee and takes with, or to the exclusion of, specified blood relatives of the intestate.

In addition, statutes in many jurisdictions provide that surviving spouses are entitled to certain additional shares, allowances, or rights in the estate of the decedent.

4.04.17

Statutory Allowances To Surviving Spouses Or Unmarried Minor Children

In most jurisdictions, a decedent's surviving spouse and unmarried minor children have statutory rights to property of the estate which are in addition to their rights under the decedent's will or their rights under the laws of descent and distribution. These rights may refer to all or some of the following:

  • Exempt property
  • Family allowance
  • Homestead allowance
  • Maintenance allowance
  • Election to take against the will
  • Marital rights

State law must be researched in order to determine the possible existence of these rights in any given jurisdiction, and if existing, their characteristics and the type of properties subject to them.

4.04.18

The Spouse's Right Of Election

Notwithstanding the terms of the will, a majority of states allow the decedent's surviving spouse to choose between accepting the provisions of the decedent's will or electing to receive a fixed percentage of the decedent's estate. This right of election may be invoked even if the will actually disinherits the surviving spouse. In fact, the procedure is designed to discourage and prevent attempts to disinherit spouses.

State laws that allow the right of election differ considerably with respect to the share of the estate that the spouse may elect to receive. Some states allow the surviving spouse only a life estate interest in the decedent's property. In these states, the spouse maintains a common-law right of dower (for the wife) or right of curtesy (for the husband) to use or live on one-third of the decedent's estate for life. Other heirs may be entitled to own the land eventually, but they can neither receive nor use it while the decedent's spouse is alive.

Some states allow the surviving spouse to elect to receive a special share of the estate's net value. Others simply allow the share that would pass to the spouse under the laws of intestacy. A few states permit the surviving spouse to maintain life interest and to elect to receive the share provided for the spouse under the intestacy laws.

When a spouse exercises the right of election, the remaining heirs receive their share of the estate on a prorated basis.

4.04.19

Claims Of Creditors In An Estate

Under modern statutes, all the estate property, real and personal, insofar as it is not exempt, is liable for the debts of the deceased owner, and all the heirs and distributees take the property subject to such debts. Most state laws give unsecured creditors the right to be paid from the assets of a deceased person.

In the absence of a statute to the contrary:

  • The liability of the property for the payment of unsecured creditors is not destroyed because of its alienation by the heirs or devisees. The devisee, even though bona fide, takes the property subject to the payment of the debts.

  • Probate sales under orders of the court are free and clear from the claims of creditors.

  • Sales by a personal representative under power contained in a will are subject to the claims of creditors.

  • Any estate or interest set over by the court to the widow/widower and the minor children of the decedent as a homestead or as a statutory allowance has priority over the claims of unsecured creditors.

The process for settling claims against an estate begins with the publication of a notice in a local newspaper informing creditors of the death of the decedent and the opening of the estate for probate. The specific requirements of the notice, including the number of times that it must be published, are established by statute.

Once the probate process has begun, creditors of the estate present their claims directly to the personal representative or to the probate court. In some states, all claims must be filed with the court. Creditors' claims must state the basis of the claim, the amount and the date due, and the name and address of the claimant.

Most state laws also provide that if the heirs or devisees of the decedent have not opened administration proceedings within a specified time, any of the creditors may make an application to the court for administration proceedings. If no creditor, however, makes an application within a period specified by the state law, the right to have administered proceedings opened thereafter is barred and the claims of all unsecured creditors are also barred.

In a few states, court approval must be obtained before any creditor's claim can be paid. In most states, however, the personal representative needs permission to pay only large claims against the estate.

Preferred claims are those claims on the estate which must, by state law, be paid before other claims and before the distribution of any assets. They often include charges for funeral services and fees for the personal representative and the attorney (if there was one). The remaining claims against the estate can be paid on a prorated basis after preferred claims are paid.

4.04.20

Taxes In An Estate

The estate of a decedent, if sufficient in size, may be subject to the payment of the following taxes:

State Inheritance and Estate Taxes

Every state, except Nevada, imposes a tax on the estate of a decedent or on the transfer of its assets to heirs. The taxes are assessed in one of two ways: either as a inheritance tax on each heir's share of the estate, or as an estate tax on the total value of the estate. In a few states, no state tax return is necessary unless a federal estate tax return is also required.

The amount of the state inheritance tax depends on the relationship of an heir to the decedent. Inheritances received by spouses, children, and grandchildren of the decedent are usually taxed at a lower rate than those received by brothers and sisters. Other beneficiaries are taxed at a higher rate. Personal exemptions from inheritance taxes (which vary for different heirs in different states) often apply.

The personal representative of the estate is usually responsible for calculating and arranging the payment of inheritance taxes.

Some wills specifically request the personal representative to pay inheritance taxes from estate funds before distributing the assets.

However, there is no firm rule on who pays these taxes. The personal representative or the individual heirs who receive assets from the estate can pay the tax. The tax may have to be paid before any assets can be distributed.

The estate tax is based on a graduated percentage of the total value of the estate. In some states, the relation of the heir to the decedent is irrelevant, since there is only one tax schedule and usually one exemption for the estate as a whole. In these states, the personal representative must file and pay the estate tax.

Each state, whether it imposes an inheritance tax or an estate tax, employs a different tax schedule and makes different allowances for personal exemptions.

In most states, the computation, filing, and payment of state taxes is a simple matter although a state tax referee or a brief court hearing may be required to determine the amount of taxes due. When a state tax return is filed, some states may require copies of the following: (1) the decedent's will; (2) an inventory and appraisal of the estate; (3) a court-approved application to open the estate for probate; and, (4) payment for taxes due.

Credit Estate Tax

Most states impose a tax, usually called a credit estate tax, on those estates that have to pay the federal estate tax. In some states, the credit estate tax is the only state tax. In other states, it is assessed in addition to either the state inheritance tax or the estate tax.

The federal estate tax allows large estates a standard credit (i.e., a reduction in tax owed) for the payment of state death taxes. Many states, in turn, simply tax the estate for the amount of this credit. In other words, the additional tax due is equal to the credit given to the estate by the federal estate tax.

Federal Estate Taxes

The United States is entitled to be paid a tax from the assets of a deceased person, and the right to this tax along with a lien attaches immediately upon the death of the decedent. No lien needs to be filed.

The personal representative can determine whether or not a federal estate tax return must be filed by computing the total value of the decedent's gross estate (the total value of everything the decedent owned, shared an interest in, or which is due to the estate).

Federal Estate Gift Taxes

If the donor of a taxable gift dies before the tax is paid, the tax due is an obligation of the estate for which the personal representative is responsible.

Federal estate and gift taxes have been unified in the same rate schedule.

4.04.21

Community Property In An Estate Situation

In community property states, the statutes of descent and distribution provide specially for the disposition of community property. The surviving spouse is, of course, entitled to a community share (the same share the spouse had when the deceased was alive); the disposition of the deceased's community interest varies among the community property states and often depends upon whether or not there are surviving issue.

In this respect, state law must be fully researched.

4.04.22

Nonprobate Property Transfers

Almost all estates contain assets that can be transferred directly to the decedent's surviving spouse or to other heirs without passing through probate. Such assets, generally referred to as nonprobate assets, are not part of the decedent's probated estate. They are generally not subject to probate fees and costs, and their transfer need not be delayed until the decedent's estate is closed.

As with probate assets, nonprobate assets fall into two basic categories: real property (land and permanent structures) and personal property (furniture, bank accounts, insurance, stocks and bonds, personal effects, etc.). The most common manner in which nonprobate assets are held is some form of joint ownership (with rights of survivorship). Generally, most insurance policies, trusts, public and private pensions, and other death benefits are considered nonprobate assets.

4.04.23

Joint Tenancies In An Estate Situation

Property that is jointly owned (with right of survivorship) by two or more persons generally transfers automatically to the surviving owners. The transfer is made without probate and without regard to any provisions of the decedent's will. The right of survivorship is the right of all co-owners to assume the share of any owner who dies. The exact wording of the title to jointly owned property will control the manner in which the property is transferred.

In most states, the use of the words "joint tenants" or "joint tenancy" in a title of ownership is sufficient to entitle the surviving owner(s) to receive the property of a deceased co-owner.

However, the formal phrase describing this common form of joint ownership is as "joint owners with the right of survivorship." The use of this phrase is required in some states to make a nonprobate transfer possible. Another form of joint ownership that is similar to a joint tenancy, but with the significant exception that its use is limited to husbands and wives, is called tenancy by the entirety.

Although most jointly owned property passes automatically to the surviving joint owner(s) at the death of a co-owner, there are a few formalities that must be completed. In some jurisdictions, this involves deleting the name of the decedent from the title, deed, certificate, or other record of ownership, and then obtaining a new document registered solely in the name(s) of the surviving owner(s). The documents required vary from state to state and depend on the nature and form of ownership, but typically they include the following:

  • A certified copy of the decedent's death certificate;
  • A declaration or notarized affidavit attesting to the co-owners' right to all or part of the jointly owned property;
  • A consent to transfer form (or release of inheritance tax lien) from the state and, if necessary, federal tax authorities; and,
  • A new deed (for real property) that must give the survivors' names exactly as they appear in the old deed;

4.04.24

Nonresident Estates

When at the time of death, a decedent owns property in two or more states, certain problems may arise in connection with the jurisdiction of the states to administer the estate although the principle that each state has sole and plenary jurisdiction over the real property of a decedent having a situs in that state is well established and generally accepted.

Domiciliary administration is applied to the state in which the decedent was domiciled at the time of death. Ancillary administration is applied to administration in a state other than that in which the decedent was domiciled at the time of death.

State law must be researched in connection with the local requirements of the administration of intestate nonresidents and testate nonresidents.