Questions & Answers Series

Wills, Trusts and Estates Topics: Execution and Revocation of Wills; Identification of Heirs at Law; Jurisdiction/Conflict of Laws Principles; Transactions Affecting Heirship

Transactions Affecting Heirship

Question:
O, an unmarried resident in the state of X, died recently without a will. O had four children born of O's only marriage, which ended when O's spouse died years ago. The children were C1, C2, C3, and C4. C1 died one day prior to O; C2 died at the same time as O; C3 died one day after O; and C4 died one week after O. The children never married, and they did not have any children of their own. Which answer best describes the identity of O's heirs?

(A) C1, C2, C3, and C4.

(B) C2, C3, and C4.

(C) C3 and C4.

(D) C4.

Answer:
Answer (D) is correct. C4 is O's only heir. In order to be an heir, one must not only survive the intestate, but survive by 120 hours. If one survives the intestate but dies within 120 hours, that person is deemed to have died before the intestate. UPC §§ 2-103, 2-104. Many states that have not enacted the Uniform Probate Code have statutes that require an heir to survive by 120 hours. See William M. McGovern, Jr. and Sheldon F. Kurtz, Wills, Trusts, and Estates § 2.2 (2d ed. 2001).

Answers (A), (B), and (C) are incorrect for the reasons given in the preceding paragraph.

Execution and Revocation of Wills

Question:
O, an unmarried resident of the state of X, died recently, survived by two adult children, C1 and C2, and C1's child, G. In 1990, O, being disappointed in C2, executed a valid attested will prepared by O's lawyer that left O's estate to C1. Shortly before O's death, a fully-competent O e-mailed the lawyer. In the e-mail, O explained that O was now extremely disappointed in both C1 and C2 and that O wanted all of O's property to pass to G when O died. O then instructed the lawyer to "formalize" O's wishes. The lawyer prepared a new will for O leaving all of O's estate to G, but O died before O had an opportunity to execute the new will. Who is most likely to succeed to O's estate under the circumstances? 

Answer:
C1 inherits the entire estate. O did not comply with the statutory requirements of revocation or execution. The 1990 will was not revoked by O prior to O's death. It is generally accepted that a will may be revoked by either a subsequent valid will or an authorized act done to the will. UPC § 2-507 confirms this principle. Accordingly, notwithstanding O's expressed intent to revoke the 1990 will and leave O's property to G, O's intent was not expressed in a writing that met the requirements of a valid will. See UPC § 2-502. The email did not meet the statutory requirements of a will. The result is likely to be the same in a state that has not enacted the Uniform Probate Code. William M. McGovern, Jr. and Sheldon F. Kurtz, Wills, Trusts, and Estates §§ 5.1, 5.2 (2d ed. 2001). If UPC § 2-503 is applicable in this situation and G can meet the burden of proof required by the statute, O's stated testamentary intent may be carried out.

Identification of Heirs at Law

Question:
O, an unmarried resident of the state of X, died recently. O did not have any children or siblings. O was survived by O's now divorced parents, H and W. H is currently married to W2, and W is currently married to H2. Additionally, the parents of H, W, W2, and H2, as well as siblings of H, W, W2, and H2, plus a number of descendants of those siblings, survived O. O executed a will just prior to O's death that leaves all of O's property to F, a friend. F has filed the will for probate. 

Which answer best describes the members of O's family that have standing to contest the will?

(A) H, W, W2, and H2, their parents, and the descendants of their parents.

(B) H, W, their parents, and the descendants of their parents.

(C) H, W, and their parents.

(D) H and W.

Answer:
Answer (D) is correct. The only parties with standing to contest the probate of a will are, generally, the decedent's heirs at law. See William M. McGovern, Jr. and Sheldon F. Kurtz, Wills, Trusts, and Estates § 12.1 (2d ed. 2001).

Notwithstanding their divorce, H and W were O's parents and O's only heirs at law. See UPC §§ 2-103, 2-114. The result is likely to be the same in a non-UPC state.

Answer (A) is incorrect. Other than a decedent's surviving spouse, a person related to the decedent only by marriage is not an heir at law. 

Answers (B) and (C) are incorrect. Because H and W both survived O, neither the ancestors of H and W nor the descendants of those ancestors are O's heirs at law.

Jurisdiction/Conflict of Laws Principles

Question:
O, an unmarried resident of the state of X, died while vacationing in the state of Y. In addition to the tangible personal property in O's physical possession at the time of O's death, O owned real and personal property located in the state of X, but O's more valuable assets were real and personal property located in the state of Z. O was survived by several members of O's family who all reside in the state of X.

Which answer best describes which states' courts have subject matter jurisdiction over the decedent's property?

(A) X has exclusive jurisdiction over the assets within its boundaries; Y has exclusive jurisdiction over the assets within its boundaries; and Z has exclusive jurisdiction over the assets within its boundaries.

(B) X and Z have exclusive jurisdiction over the real property located within their respective boundaries, but X has exclusive jurisdiction over all personal property wherever located.

(C) Each state has jurisdiction over the assets located within its boundaries, but X also has jurisdiction over the personal property located in Y and Z.

(D) Each state has jurisdiction over the assets located within its boundaries, but X also has jurisdiction over all assets located in Y and Z.

Answer:
Answer (C) is correct. A proceeding to settle a decedent's estate is an in rem action. Accordingly, any state has territorial jurisdiction over the property of a decedent physically located in the state even though the decedent was domiciled in another jurisdiction. Restatement (Second) of Judgments § 6. In addition, the state where the decedent was domiciled at the time of death also has jurisdiction over the personal property of the decedent located in another jurisdiction. Exclusive jurisdiction of real property is usually retained by the state where the real property is located. See 3 American Law of Property § 14.45 (James A. Casner ed. 1952); Restatement (Second) Conflict of Laws §§ 236, 260.

Answers (A), (B), and (D) are incorrect. Conflict of laws principles dictate that the situs state has jurisdiction over property, both real and personal, located in that state. The domiciliary state also has jurisdiction over the decedent's personal property wherever located.