1. All persons of lawful age, who can freely exercise their own will, may dispose of their property by making a will. In some states a married woman cannot make a will without the consent of her husband.
In some states persons under age cannot make a will disposing of anything but personal property.
2. A will is not of force until after the death of the testator.
3. The testator can cancel or modify his will at any time but not by altering the original instrument.
4. The last will annuls all former wills unless it is only an addition to them.
5. Marriage generally operates as a revocation of a will made before marriage unless the will is made in contemplation of marriage, and sometimes even then.
6. A will made by an unmarried woman is legally revoked by her subsequent marriage unless she takes such legal steps before her marriage as will enable her to dispose of her property afterwards as she sees fit, which, in some states, she can do.
7. A will should first provide for the payment of all just debts and funeral expenses, though this provision is not essential in many states.
8. If there be a general direction to pay debts then in some states property bequeathed, if encumbered with debts, must first be cleared of debt before distribution is made to the beneficiaries unless the will shows other intent of testator.
9. A corporation may receive property bequeathed to it if provision is made for it in its charter or by statute for accepting such gifts.
10. In most of the states the husband cannot entirely disinherit his wife, but she can claim her dower, i. e., the use and income of one-third his real estate, or some equivalent right given to her by statute and often including a share in the personal property as well as in the real estate, in spite of the provisions of the will, unless by some voluntary act she has deprived herself of the right to make such claim. An additional bequest can be made to her by the husband. Statutes govern this matter in most states, and the laws vary exceedingly in different states.
11. A husband can will his wife a certain amount in lieu (in place) of her dower, stating it to be so intended; this, however, does not deprive her of her dower, provided she prefers it to the bequest.
12. If a married woman possesses property, and dies without a will, her husband is entitled to administer upon such property in preference to anyone else. Also in some states the widow is first entitled to administer; in others, the next of kin.
13. The testator’s full name should always be written at the end of the will. If he cannot write, he must make his mark, having his hand guided by another person. Such mark, if he is conscious of what he is doing, renders the will valid: > 14. It is always best if the testator appoints some suitable person or persons to act as executor.
15. An executor may always erect a suitable tombstone and charge the expenses to the estate if no other provision has been made and the estate is solvent.
16. If there is no executor named in the will or the named executor declines to serve an administrator will be appointed by the court to settle the estate.
17. Testator fears his will may be contested; he must provide therein that anyone so doing shall be excluded from participation in the proceeds of his estate, and the portion which would have gone to him shall be distributed equally (or otherwise) among the non-contesting heirs.
18. The will should be presented for probate as soon as possible after the death of the testator. Any person having custody of a will who fails to present it for probate is in many states subject to criminal prosecution.
Codicils
A written addition made to a will is called a codicil and is executed like a will. It is designed to explain, modify, or change former bequests made in the body of the will. It must be executed with equal care as the will itself.
Revocation. A will may be revoked by an actual destruction or obliteration of the document, or by the making of a new will of later date.
Marriage and the birth of a child after the execution of a will revoked it at common law, and this rule has much force in the United States now, although it is variously modified by statute in the different states. If a man makes a will and subsequently marries, he should be careful to make a new will as soon as possible. And in the event of after-born child or children the will should be republished or a new will made.
Probate.No will is effectual to pass either real or personal estate unless it has been duly proved and allowed in the probate court. The attesting witnesses must all, if possible, be produced, at least in case of a contest. In some states only one witness is required to be produced if there is no contest. If any are dead, or have left the state, proof of their handwriting may be required.
So long as the probate remains unreversed on appeal, the due execution of the will, the sanity or capacity of the testator, and the attestation of the witnesses, cannot be called in question in the courts of common law, except in statutory proceedings in some states to determine the validity of the will.
A codicil requires the same number of witnesses as the will.
A Deed of Trust, Instead of a Will
Instead of a will, a person may convey his property by a deed of trust, conveying it to a trust company or some other trustee, by the terms of which he retains the use or profits of the property during his life, and directs how it shall be disposed of, after his death, among those persons whom he desires to make beneficiaries. Or by the terms of the deed he may retain the management of his property, and the right to dispose of it. This reservation may create difficulties in case he wishes to sell, because buyers may require release of claims from those who are named for beneficiaries after his death. But the person may reserve the right to revoke the trust deed, or any part of it, at any time. Deeds of this nature must be drawn with full knowledge of the law and of precedents.
Deeds of Trust should be made to a trust company rather than to an individual. Such companies have regular and legal forms and their attorneys take care that the grantor is properly protected.
Gifts Before Death
A person believing himself near death may promise gifts, to be made after his death; but he may revoke any such gift during his lifetime, and the promise would become ineffective. A gift before death, to be effective, must be completed by delivery. [See “Legal Gifts.”]
EXECUTORS AND ADMINISTRATORS
An executor is named in a will to execute that will and settle the estate. If the will does not name an executor, or if named, he will or cannot act, the Probate Court (some states Surrogate, others Orphans’ Court) appoints an “administrator with the will annexed.” If a person dies without leaving a will the court appoints an administrator, who distributes the property as the law directs. In some of the states there is a “public administrator” who administers estates where the intestate leaves no relations qualified to perform the duties.
The duties of an executor are : First. To see that the deceased is suitably buried, avoiding unreasonable expense if the estate is insolvent. Second. To offer the will for probate, or proving; to conform to the laws of his state and rules of the court, the clerk of which will give full instructions. Third. To make and return to the court within required time an inventory of the property. “Real estate lying in another state need not be inventoried, for that must be administered upon in the state where it lies; but personal property situated in another state should be inventoried.” If the real estate is encumbered, it should be described. Fourth. To collect the property, pay the debts and dispose of the remainder as the law and will, or either, directs. Generally the debts should be paid as follows : 1. Funeral expenses. 2. Expenses of last sickness 3. Debts due the United States. 4. Debts due the state. 5. Claims of creditors. Fifth. To render the accounts as directed by the court and the law.
Commissioners are generally appointed to hear the claims of all within a limited time. An appeal from their action may be taken to the court. If no appeal, the executor pays the legacies, etc., makes final accounts which are submitted to a hearing, and if no objection, the estate is closed. If the executor dies before the estate is closed, his executor has no authority over the first estate. Another is appointed to complete the execution.
The law provides that the widow of the intestate shall be first entitled to act as administrator, next, the nearest of kin who are competent; next, any creditor who will accept the trust; and lastly, any other person of proper ability.
Executors and administrators are required to take an official oath; also to give a bond, which is usually for double the amount of the estate. Exceptions are few.
Executors’ or Administrators’ Bond
KNOW ALL MEN BY THESE PRESENTS, that I, Charles D. Mann of Ira, in the County of Rutland and State of Vermont, as principal, and Benj. E. Merrill of Poultney and N. Wright Emerson of Wells, in the County of Rutland aforesaid, as sureties, are holden and firmly bound unto the Probate Court for the District of Rutland (in some states, unto the People of the State of ), in the sum of Eight Thousand Dollars, to be paid unto the said Probate Court, to the which payment well and truly to be made we bind ourselves, and each of our heirs, executors and administrators, jointly and severally, firmly by these presents, signed with our hands and sealed with our seals.
Dated at Rutland, in said District, this fifteenth day of September, A. D. 19-.
The condition of the above obligation is such, That if the above bounden Charles D. Mann, Executor of the last Will and Testament of John I. Merritt, late of Fair Haven, in the County of Rutland and State of Vermont, deceased, shall make and return to the Probate Court within three months, a true and perfect inventory of all the goods, chattels, rights, credits, and estate of said deceased, which shall come to his possession or knowledge, or to the possession of any other person for him; and also all other goods, chattels, rights, credits and estate of said deceased which shall any time after come to his possession, or the possession of any other person for him; and shall well and truly administer the same and pay and discharge all debts, legacies and charges chargeable thereon, or such dividends thereon as shall be ordered and decreed by said Probate Court; render a true and just account of his administration to said court, within one year, and at any other time when required by said court, and perform all orders and decrees of said Probate Court by Executor to be performed in the premisesthen the above obligation is void, otherwise in force.
Signed, sealed and delivered in presence of
H. MAX WEBBER, Clerk of County Court.
CHARLES D. MANN. [L. S.]
BENJ. E. MERRILL. [L. S.]
N. WRIGHT EMERSON. [L. S.]
(Some states require acknowledgment as below.)
RUTLAND COUNTY, SS.
At the session of Probate Court in and for said County, holden at Rutland, on the eighteenth day of September, A. D. 19–, I have examined and do approve of the fore-going bond, and order the same to be filed and recorded in the Probate Office of said County.
FRED ROTHLIS, Judge of Probate.
In case of deceased partner the right of the surviving partner to the management of the firm for the purpose of terminating it is superior to the executor or administrator, and these officers are excluded from any participation in the winding up of any business of the firm of which the deceased was a member.
ADMINISTRATION OF ESTATES
The management of an estate of a deceased person by an executor or administrator is termed in law “administration.” More especially it applies to cases where persons die intestate (without leaving a will). In such cases the administration is applicable to personal estate only, except where there’s an order of court obtained for the purpose of sale of real estate and proper dis-position of the proceeds.
Descent and Distribution of Intestate’s Estate. When a person dies without having made a will and leaves real estate and personal property, the former descends to the heirs and the latter goes to the administrator, through whom it, or the proceeds of its sale, are distributed to the per-sons beneficially interested after payment of debts and charges of administration.
Claims of Creditors. The procedure in the several states in presenting creditors’ claims against the estate varies very considerably. In most of the states the executor or administrator is required promptly to give public notice to creditors to present their claims to him, and the creditors are required so to present their claims supported by an affidavit that the same are justly due and owing from the estate, above any offsets or counterclaims, within a period limited generally to six months or a year. The law of each state should be consulted for more specific de-tails. Most of the states direct a final closing of the estate by the executor or administrator with-in a year or eighteen months after his appointment, though the time limit may be extended by a Probate Court if conditions require it.
Distribution of the Personal Estate in the Various States.-I. In all the states where the de-ceased leaves a child or children, or descendants of deceased child, and no widow or husband, as the case may be, the children or descendants take the entire estate of the deceased to the exclusion of all other relations. The children take equal shares, and in most states the descendants of a deceased child together take the share of their parent, except where the descendants are all in equal degree to the deceased (all grandchildren, no children surviving), when they share equally and do not take their proportionate share of their parent’s interest.
II. If the deceased leaves a widow, or husband, as the case may be, and no children or descendants, the widow or husband takes all of the decedent’s estate in Alabama, Arizona, Colorado, Florida (See V.), Georgia (See V.), Illinois, Kansas, Minnesota, Mississippi, New Jersey (See V.), New Mexico, Ohio (See V.), Oregon, Tennessee, Texas, Washington, West Virginia and Wisconsin.
In the following states the widow or husband takes one-half of the deceased’s estate, the residue being taken by the other relatives in the manner and proportion in which they take the entire estate when the deceased leaves neither widow, or husband, as the case may be, nor descendants : Arkansas, California, Delaware (See V.), District of Columbia (See V.), Idaho, Iowa, Kentucky, Maine, Maryland, Missouri, Montana, Nebraska, Nevada, North Carolina, Oklahoma, Rhode Island, South Carolina, South Dakota and Virginia.
In Massachusetts, North Dakota, Pennsylvania (See V.), and Utah the widow or husband takes the entire estate up to $5,000 and one-half of the residue.
In Connecticut and Vermont the widow or husband takes the entire estate of the deceased up to $2,000 and one-half of the residue.
In New York (See V.) in case deceased leaves a father surviving, the widow takes one-half; if no father surviving she takes one-half and $2,000 in addition.
In New Hampshire the widow or husband takes $1,500, and if the estate exceeds $3,000, one-half of the residue.
In Wyoming the widow or husband takes the entire estate up to $10,000 and three-fourths of the residue.
In Michigan the widow or husband takes the entire estate up to $3,000 and one-half of the residue.
III. When the deceased leaves a widow, or husband, as the case may be, and children or descendants, the widow or husband takes one-third and the children share equally in the residue in the following states : Arizona, Arkansas, Connecticut, Delaware (See V.), District of Columbia (See V.), Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey (See V.), New York, Ohio (one-half if less than $400), Pennsylvania, Rhode Island (See V.), South Carolina, Texas, Vermont, Virginia (See V.), and West Virginia.
IV. When the deceased leaves no widow, or husband as the case may be, children or descend-ants, the parents of the deceased take the entire estate in equal shares in the following states: Alabama, Arizona, California, Colorado, Connecticut, Idaho, Iowa, Kansas, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, New Hampshire, Oklahoma, Pennsylvania, Texas, Utah, Vermont, Washington, Wisconsin and Wyoming.
In the following states, if there be but one child, the surviving widow or husband takes one-half if there are two or more children or descendants, the widow or husband takes one-third, as above, and the children or their descendants the residue : California, Florida, Idaho, Michigan, Montana, Nevada, North Dakota, Oklahoma, South Dakota and Utah.
In the following states the widow or husband takes the same share as each of the children : Mississippi, Missouri, Tennessee and Wisconsin.
In the following states, if there be but one child, the widow, or husband as the case may be, takes one-half and the child one-half of the decedent’s estate; if two or more children or their descendants, the widow takes one-third, as above, and the children or their descendants the residue California, Florida, Idaho, Michigan, Montana, Nevada, North Dakota, Oklahoma, South Da-‘ kota and Utah.
In the following states the widow or husband takes one-half of the decedent’s estate and the children or descendants, the residue: Colorado, Kansas, Kentucky, Oregon, Washington and Wyoming.
In the following states the widow or husband takes the same share of the decedent’s estate as each of the children: Mississippi, Missouri, Tennessee, and Wisconsin.
In Nebraska, if widow or husband is not the parent of all the children of the deceased and there be more than one child, widow or husband takes one-fourth of decedent’s estate and the children the residue.
In New Mexico, the widow or husband of de-ceased takes one-half of the estate acquired during marriage otherwise than by gift, and the children or their descendants share equally in the residue; the widow or husband also takes one-fourth of the estate acquired before marriage, or by gift or legacy during marriage, the children or their descendants taking the residue.
In all of the states just mentioned, except Alabama, Arizona, Maine, and Texas, if one parent is dead, the surviving parent takes the entire estate, to the exclusion of brothers and sisters. In Alabama, Arizona, Maine, and Texas the surviving parent takes one-half and the brothers and sisters, or their descendants, take the residue.
In all of them, if both parents are dead, the brothers and sisters and their descendants take the entire estate.
In the following states the father, if living, takes the entire estate; if the father is dead, then to the mother and brothers and sisters, or their descendants: Florida, New Jersey, New York, North Carolina, Oregon, Rhode Island, South Dakota, Tennessee, Virginia, and West Virginia.
In the following states the father, if living, takes the entire estate; if the father is dead, then the mother; and if both parents are dead, then the brothers and sisters or their descendants: Arkansas, District of Columbia, Nevada and North Dakota.
In the following states the parents, if living, and the brothers and sisters, or their descendants, take the entire estate, sharing equally Georgia, Illinois, Mississippi, Missouri and South Carolina.
In Delaware, Ohio and Maryland (where the property did not descend to the intestate from either parent), the brothers and sisters, or their descendants, take the entire estate in preference to the parents, who only inherit it if there are no brothers or sisters or lawful issue of any deceased brothers or sisters.
In Ohio the husband takes the entire estate if there are no children or descendants; if there are children or descendants, they take the entire estate.
V. In the following states the rights of the *surviving husband in the deceased wife’s personal estate differ from the rights of a widow in the estate of her deceased husband as shown in the foregoing synopsis.
In Florida, Georgia and Pennsylvania, if there are no children or descendants, the husband takes the entire estate.
In Alabama the husband takes one-half of the estate, the children, or descendants, taking the residue.