Descent and Distribution

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Ads by Google Online LL.M. In U.S. Law Washington University Law: Earn an LL.M. in U.S. Law online. OnlineLaw.Wustl.edu/LLM The area of law that pertains to the transfer of real property or Personal Property of a decedent who failed to leave a will or make a valid will and the rights and liabilities of heirs, next of kin, and distributees who are entitled to a share of the property. Origin of the Law The passage of property from ancestors to children has been recognized and enforced since biblical times. As a general rule, the law, and not the deceased person, confers the right of succession—the passing of title to a decedent's property—and determines who shall take intestate property. In the United States, such law is derived from the Civil Law and English statutes of distributions, rather than from the Common Law, which preferred the eldest male, under the doctrine of primogeniture, and males over females. Statutes in every state prescribe the order in which persons succeed to a decedent's property if he or she dies intestate, which means without a lawfully executed will. These statutes provide for an orderly administration by identifying successors to a decedent's, also called an intestate's, estate. They seek to implement the distribution that most intestates would have provided had they made wills, on the theory that most persons prefer that their property pass to their nearest relatives rather than to more remote ones. An order of preference among certain relatives of the deceased is established by the statute. If there are no relatives who can inherit the property, the estate escheats, or reverts, to the state. Persons Entitled The terms heirs, next of kin, and distributees usually refer to the persons who by operation of law—the application of the established rules of law—inherit or succeed to the property of a person intestate on his or her death. Statutes generally confer rights of inheritance only on blood relatives, adopted children, adoptive parents, and the surviving spouse. Line of descent is the order or series of persons who have descended one from the other or all from a common ancestor, placed in a line in the order of their birth showing the connection of all blood relatives. The direct line of descent involves persons who are directly descended from the same ancestor, such as father and son, or grandfather and grandson. Whether an adopted child can be regarded as in the direct line of descent depends upon the law in the particular jurisdiction. The collateral line of descent involves persons who are descended from a common ancestor, such as brothers who share the same father or cousins who have the same grandfather. Title by descent differs from title by purchase because descent involves the operation of law, while purchase involves the act or agreement of the parties. Usually direct descendants have first preference in the order of succession, followed by ascendants (persons in the collateral line of ascent), and finally, collateral heirs. Each generation is called a degree in determining the consanguinity, or blood relationship, of one or more persons to an intestate. Where the next of kin of the intestate who are entitled to share in the estate are in equal degree to the deceased, such as children, they share equally in the estate. For example, consider a mother who has two daughters, her only living relations, and dies intestate, leaving an estate of $100,000. Since the two daughters occupy the same proximity of blood relationship to their mother, they share her estate equally, each inheriting $50,000. Issue has been defined as all persons in the line of descent without regard to the degree of nearness or remoteness from the original source. Law Governing If at the time of death, the intestate's estate is located in the state of his or her domicile or permanent residence, the law of that state will govern its descent and distribution. Local laws that govern the area where the property is located generally determine the descent of real property, such as land, houses, and farms, regardless of the domicile of the deceased owner. The succession to and the disposition and distribution of personal or movable property, wherever situated, are governed by the law of the domicile of the owner or intestate at the time of death, unless a statute in the state where the property is located provides otherwise. Since the privilege of receiving property by inheritance is not a natural right but a creation of law, the legislature of a state has plenary power, or complete authority, over the descent and distribution of property within the borders of the state subject to restrictions found in constitutions and treaties. The disposition of the property of an intestate is governed by the statutes in force at the time of death. Property Subject to Descent and Distribution As a general rule, property subject to descent and distribution includes all vested rights and interests owned by the deceased at the time of death. However, rights or interests that are personal to the deceased, and not of an inheritable nature, ordinarily are not subject to descent and distribution. Examples are a personal right to use land or a statutory right to contest a will. If a seller dies prior to the completion of the sale of real property, the legal title to land that the seller contracted to sell vests in the heirs at law on the owner's death, subject to their obligation to convey the land to the purchaser according to the contract. A few states authorize the distribution of property among different persons according to whether it is real or personal, but this is not the general rule. Representation, Per Stirpes, Per Capita Representation is the principle of law by which the children, or their descendants, of an heir to an estate, who dies without leaving a will, have a collective interest in the intestate's share of the property. Taking by representation means taking per stirpes. For example, Robert, who only has two daughters, Ellen and Pam, dies intestate, leaving an estate of $200,000 after the payment of debts and charges. Under a typical statute, Robert's daughters are his distributees, each receiving $100,000. However, Ellen predeceases her father and leaves two sons, David and George. Since Ellen is not alive to take her share, there would be a per stirpes division of Robert's estate, which means that Ellen's share of $100,000 would be divided equally between David and George, and each would receive $50,000. Pam's $100,000 share of her father's estate remains unaffected. Since they are brothers, the degree of blood relationship between David and George is equal; therefore, they take per capita, or equal, parts of Ellen's share. However, they have taken per stirpes shares of Robert's estate. Assume that George also died before his grandfather and left two daughters, Ruth and Janet, but his brother David was still alive. David would take $50,000, but Ruth and Janet would have $25,000 apiece. Pam, who is still alive, would still be entitled to $100,000, her share of Robert's estate. The degrees of consanguinity among David and Ruth and Janet are unequal, since David is Robert's grandchild, while Ruth and Janet are his great-grandchildren. David and Ruth and Janet share Ellen's portion of Robert's estate per stirpes. David takes 50 percent, or $50,000, whereas Ruth and Janet each take 25 percent, or $25,000, because of the unequal degrees of blood relationship to Ellen. David is one generation removed from Ellen, while Ruth and Janet are two generations removed from her. Kindred of the Half Blood The term kindred of the half blood refers to persons who share a half blood relationship with the intestate because they have only one parent in common with each other. As a general rule, kindred of the half blood inherit equally with kindred of the whole blood who have the same parents, unless expressly prohibited by statute. For example, A and B shared the same father with C and D but had a different mother. If A dies, leaving no surviving spouse, children, or parents, C and D share equally with B in A's estate, even though C and D were of the half blood in relation to A, since they had only one parent in common. C and D inherit as if they had both the same parents as A and B. Necessary or Forced Heirs The law of forced heirship gave certain relatives, besides the spouse, an absolute legal right, of which they could not be deprived by will or gift, to inherit a certain portion of the decedent's estate. Ordinarily, a person has no right to prevent another from disposing of his or her property by gift or will to someone else. The law of forced heirship in effect in only Louisiana limits the disposition of a decedent's property if his or her parents or legitimate children or their descendants are alive at his or her death. Such persons are expressly declared by law to be forced heirs, and a decedent cannot deprive them of the portion of an estate reserved to them by law unless there is Just Cause to disinherit them. Anyone else who received the property can be legally obligated to return it or to make up the portion of which the forced heirs have been deprived out of his or her own property. Designated Heirs In some jurisdictions, statutes permit a person, the designator, to name another to stand in his or her place as an heir at law in the event of his or her death. Anyone can be a designated heir, even a stranger to the designator. The statute does not grant a designated heir any status until the designation becomes effective on the death of the designator. The designator can revoke the designation until the time of his or her death and then designate another. After the death of the designator, a designated heir has the status of an heir at law, and under the statute, the status of a legitimate child of the designator. For example, H designates his wife W as his heir at law. H and W are childless. H is the only child of F. F dies intestate after H's death. The applicable statute of descent and distribution gives all of F's property to his lineal descendants. W will inherit all of F's property since she was H's designated heir at law and is, for inheritance purposes, considered a child of H. She is, therefore, a lineal descendant of F. If the designated heir dies before the designator, his or her heirs generally will not have a right of inheritance in the designator's intestate estate. Descendants Subject to the rights of the surviving spouse, children have superior inheritance rights compared to those of other blood relatives. In many jurisdictions, the same principle applies to adopted children of the intestate. Once the debts of the estate have been paid and the surviving spouse has taken his or her legal share, the remainder of the estate is apportioned in equal distributive shares, the portions specified by the law of descent and distribution, among the number of children of the decedent. The rights of the decedent's child or children are greater than not only those of the deceased's brothers and sisters, nephews and nieces, and other collateral kindred but also of the deceased's parents. Posthumous Children A posthumous child is one born after the death of its father or mother (as, for example, by Caesarean section). Both at common law and under various state statutes, a posthumous child takes as an heir and a distributee as long as it is born alive after a period of fetal existence that indicates that it was conceived before the death of the intestate father, usually a period of nine months. Some statutes require that a child be born within ten months after the death of the intestate in order to be regarded as a posthumous child. The technique of Artificial Insemination, through which a woman can be impregnated with frozen sperm months or even years after the death of the father, poses problems for courts interpreting posthumous child statutes. Children of Successive Marriages On the death of an intestate who had children by different marriages, all of his or her children take equal shares of the estate once the estate debts have been paid off and the surviving spouse has taken the legal portion. This method of distribution applies unless barred by statute, such as in cases where the property of an intestate was received from a deceased spouse of a former marriage. In that instance, only children of that particular marriage would inherit that property to the exclusion of children of other marriages. In a few states, a slightly different distribution is made of Community Property of the first marriage—one half of that property belonging to the deceased spouse going to the children of that marriage in equal shares, and those children together with the children of the second marriage dividing equally the other half, subject to any rights of the surviving spouse. Issues of Children who Predecease Intestate The share that a child who dies before the intestate would have inherited if he or she had survived the intestate parent is inherited by his or her children or descendants by the right of representation in per stirpes shares. Grandchildren have better inheritance rights than brothers and sisters of the intestate and their children. However, they do not inherit unless their parent, the child of the intestate, is dead. Illegitimate Children At common law, an illegitimate child was a filius nullius (Latin for "child of no one") and had no right to inherit. Only legitimate children and issue could inherit an estate upon the death of an intestate parent. This is no longer the case as a result of statutes that vary from state to state. As a general rule, an illegitimate child is treated as the child of the mother and can inherit from her and her relatives and they from the child. In some jurisdictions, the illegitimate child is usually not regarded as a child of the father unless legitimated by the subsequent marriage of the parents or acknowledged by the father as his child, such as in affiliation proceedings. A legitimated child has the same inheritance rights as any other child of the parent. Many statutes permit a child to inherit from his or her father if the Paternity is judicially established before the father's death. In the case of Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977), the Supreme Court of the United States decided that it is unconstitutional for states to deprive an illegitimate child of the right to inherit from his or her father when he dies without leaving a will, especially in cases where paternity is already established in state court proceedings prior to the father's death. Parents Some statutes permit one or both parents of the intestate to inherit, to some extent, the property of a child leaving no issue or descendants subject to the rights of a surviving spouse. Provisions differ as to whether one or both parents take, whether they take exclusively or share with brothers and sisters, and as to the extent of the share taken. Frequently, if one parent is dead, the surviving parent takes the entire estate, both real and personal, of a deceased child who dies without issue. Some statutes provide that a surviving parent shares with the brothers and sisters. Stepchildren, Stepparents Ordinarily, a stepparent does not inherit from the estate of a deceased stepchild. Similarly, stepchildren do not inherit from their step-parent unless the terms of a statute grant them this right. Brothers, Sisters, and Their Descendants Brothers and Sisters If an intestate dies without a surviving spouse, issue, or parents, the decedent's brothers and sisters and the children of deceased brothers and sisters will inherit the estate. Brothers and sisters inherit when and only when there are no other surviving persons having priority by virtue of statute. Their inheritance rights are subordinate to children and grandchildren and the parents of the intestate in a number of jurisdictions. Nephews and Nieces Nephews and nieces usually inherit only if their parent is deceased and would have inherited if he or she had survived the intestate. Grandparents and Remote Ascendants Generally, where paternal and maternal grandparents are next of kin to the decedent, they share equally in the estate of an intestate. Some statutes provide that where the estate descended to the intestate from his or her father, it will go to a paternal grandparent to the exclusion of a maternal grandparent. State statutes vary as to whether the grandparents all inherit, or where there are surviving aunts and uncles, as to whether they are excluded by the grandparents. There is a similar division of authority as to whether great-grandparents share with surviving great-uncles and great-aunts. Remote Collaterals A collateral heir is one who is not of the direct line of the deceased but comes from a collateral line, such as a brother, a sister, an uncle, an aunt, a nephew, a niece, or a cousin of the deceased. People are related collaterally when they have a common ancestor, such as a parent or grandparent. Where the property in question is within a statute directing the course of descent of property that came to the intestate by gift, devise, or descent from an ancestor, as long as they are the nearest heirs, the remote collateral heirs (for example, cousins) who share that common ancestor are entitled to inherit to the exclusion of collateral heirs who do not. Operation and Effect of a Will Rights under intestacy laws are only taken away by a properly executed will disposing of the testator's entire property. These laws can, however, operate in case of partial intestacy where part of the decedent's property is not disposed of by will. Surviving Spouse The right of a surviving spouse to share in the estate of a deceased spouse arises automatically from the marital status and not from any contract, conveyance, or other act of the spouse. Statutes conferring such rights on a surviving spouse make the spouse a statutory heir. Some statutes regulating the rights of inheritance of a surviving spouse treat property acquired by the decedent prior to the marriage differently than that acquired during the course of the marriage. Others relating to the descent of ancestral estates and property acquired by gifts do not, ordinarily, exclude a surviving spouse. Right of Surviving Wife As a general rule, modern statutes confer rights of inheritance on a widow. At common law, the wife was entitled to Dower, which was a fixed interest in all the land owned by her husband during the marriage. This interest in the lands of her husband was inchoate during his life. She had to survive her husband before she could take possession of her interest in the property. Most states have abolished common-law dower and have replaced it with statutes allowing the surviving widow to take an elective share prescribed by statute, usually one-third or what would have gone to her by intestacy or the provision made in her spouse's will. The extent of and the method for computing the inheritance depends on the terms of the statute applicable to the facts in the particular case. Her rights attach only to property that her husband owned at the time of death. The right of a wife to share in the estate of her husband is qualified by his right to make a valid will. The widow, however, will be given a Right of Election to choose between the elective share, which is usually her share under the laws of intestacy, or the provision in the will, whichever is larger. Right of Surviving Husband At common law, a surviving husband had an estate by curtesy in his wife's real property to which he was absolutely entitled upon her death. Curtesy has been abolished by many jurisdictions. As of the early 2000s, a husband's rights of inheritance are regulated by statute applicable to the facts in the particular case. As a general rule, a widower's rights of inheritance attach only to property that his wife owned and possessed at the time she died. Rights in Case of Remarriage Unless a statute provides otherwise, a surviving spouse's rights of inheritance are not affected by a later marriage after the death of the decedent. The rights of a survivor of a second or subsequent marriage of the decedent are the same as though he or she were the survivor of the first marriage. In a number of states, the rights of a survivor of a second or subsequent marriage of the deceased or of a surviving spouse who subsequently remarries are, or have been, governed by statutes specifically regulating descent in cases of remarriage. Waiver or Release of Right A spouse can waive the right of inheritance to the estate of the other spouse by an antenuptial agreement, which is fairly entered into by both parties with knowledge of all the relevant facts, such as the extent of the spouse's wealth. This is frequently done by couples who remarry late in life, in order to protect the inheritance rights of their children by previous marriages. For example, an affluent couple executes an antenuptial agreement by which they both agree to surrender their inheritance rights in each other's estate. This insures the inheritance rights of their children from prior marriages in their respective estates, without having the estate reduced by the share given to the surviving spouse under the laws of intestacy. To be effective as a bar, the agreement must, in clear terms or by necessary implication, relinquish the surviving spouse's right of inheritance. It must affirmatively appear that neither spouse took advantage of the confidential relation existing between the parties at the time of its execution. Unless there are statutory provisions to the contrary, a husband or wife can waive, release, or be estopped (prevented) from asserting rights of inheritance in the estate of the other by certain acts or conduct on his or her part during marriage. As a general rule, a spouse can waive his or her rights in the estate of the other by an express postnuptial agreement. Such an agreement is effective only if it manifests a clear and unmistakable intention to trade away such rights, and it must be supported by a valid and valuable consideration, freely and fairly made; be just and equitable in its provisions; and free from Fraud and deceit. In one case, the assent of a wife to cohabit with her husband only upon his execution of a release of any claim on her property did not constitute sufficient consideration for his agreement, since she was under a legal duty as his wife to live with him. A separation agreement can provide for the mutual release of the rights of each spouse in the other's property, including an inchoate or potential right of inheritance that will not vest until the death of one spouse. The rights of inheritance in the property of the husband or wife are not to be denied the surviving spouse unless the purpose to exclude him or her is expressed or can be clearly inferred. A Property Settlement agreement conditioned upon a Divorce cannot bar a spouse's statutory share in the other's estate where the divorce was never finalized because of the death of the spouse. A mere agreement between Husband and Wife in contemplation of divorce, by which specific articles of property are to be held by each separately, is no bar to the rights of the surviving spouse, if no divorce has in fact been granted. The surviving spouse, however, is not prevented from asserting his or her rights in the estate of the deceased spouse by an agreement entered into as a result of ignorance or mistake as to his or her legal rights. Forfeiture of Rights As a general rule, a surviving spouse's misconduct, whether criminal or otherwise, does not bar his or her rights to succeed to the deceased person's estate where the statute of descent and distribution confers certain rights on the surviving spouse and makes no exception on account of misconduct. Abandonment, Adultery, and Nonsupport Unless there are statutes to the contrary, the fact that one spouse abandoned or deserted the other, or even the fact that he or she abandoned the other and lived in Adultery, does not bar that spouse's rights of inheritance in the other's estate. However, in a number of jurisdictions express statutory provisions do not permit a surviving wife to succeed to her husband's estate if she has abandoned him or left him to live in adultery. A surviving husband similarly loses his statutory right to inherit from his wife's estate where he abandoned or willfully and maliciously deserted her or neglected or refused to support her. In order to constitute a Forfeiture of inheritance rights, such conduct must be deliberate and unjustified and continue for a period of time specified by statute. Mere separation is not necessarily Abandonment or desertion if the parties have consented to the separation or there is reasonable and justifiable cause for the action. The fact of one spouse's subsequent meretricious conduct is not abandonment if a separation agreement does not provide for forfeiture of that spouse's right to share in the decedent's estate. Murder of Spouse There is no uniform rule as to whether a person who murders his or her spouse can succeed to the decedent's estate as the surviving spouse. Some jurisdictions refuse to recognize the murderer as a surviving spouse. In others, a statute that confers certain rights on the surviving spouse does not strip the spouse of that right because he or she caused the death of the intestate spouse by criminal conduct. Different states have enacted statutes that preclude any person who has caused or procured the death of another from inheriting the decedent's property under certain circumstances. An intentional killing will bar an inheritance, but a death that occurs as a result of Negligence, accidental means, or insanity will not have this effect. For example, where conviction is essential to create a forfeiture under the statute, a surviving spouse who is not convicted but is committed to a state hospital for the legally insane is not excluded from the rights of inheritance. A conviction of Manslaughter might be sufficient to satisfy the statutory requirement of conviction, but it is insufficient if the statute requires actual conviction of murder. Bigamous Marriage In some jurisdictions, a spouse who commits bigamy, marrying while still legally married to another, can be denied any rights of inheritance in the estate of his or her lawful spouse. This is true even if the bigamous marriage had been terminated long before the death of the lawful spouse. In a few jurisdictions, the fact that one who was legally married to the decedent contracted a bigamous marriage does not bar his or her rights of inheritance in the decedent's estate. Divorce Generally, a person who has been divorced can claim no share in the estate of the former spouse. Under some statutes, a divorce a mensa et thoro (Latin for "from bed or board"), which is a legal separation, can abrogate any right of intestate inheritance in the spouse's estate, even though the decedent and spouse remained lawfully married until the death of the decedent. Rights and Liabilities of Heirs No one is an heir to a living person. Before the death of the ancestor, an expectant heir or distributee has no vested interest but only a mere expectancy or possibility of inheritance. Such an individual cannot on the basis of his or her prospective right maintain an action during the life of the ancestor to cancel a transfer of property made by the ancestor. Advancements An advancement is similar to an absolute or irrevocable gift of money or real or personal property. It is made in the present by a parent to a child in anticipation of what the child's intestate share will be when the parent dies. An advancement differs from an ordinary gift in that it reduces only the child's distributive share of the parent's estate by the stated amount, while a gift diminishes the entire estate. The doctrine of advancements is based on the theory that a parent is presumed to intend that all his or her children have equal rights not only in what may remain at the parent's death but in all property owned by the parent. Statutes of descent and distribution can provide for consideration of advancements made by a deceased during his or her lifetime to achieve equality in the distribution of the estate among the children. An advancement can also be made by grandparents and, where statutes permit, by spouses and collateral relatives. A parent's gifts to a child cannot be deemed advancements while the donor is alive, since they are significant only in relation to a decedent's estate. Several statutes provide that no gift or grant of realty can be deemed to have been made as an advancement unless expressed in writing by the donor or acknowledged in writing by the donee. A transfer based on love and affection or a nominal consideration can constitute an advancement, while a transfer for a valuable consideration cannot, since as a gift, an advancement is made without consideration. Release, Renunciation, or Acceptance of Rights An heir can relinquish his or her rights to an estate by an express waiver, release, or Estoppel. Generally, the release of an expected share, fairly and freely made to an ancestor in consideration of an advancement or for other valuable consideration, excludes the heir from sharing in the ancestor's estate at the time of death. It is necessary that the person executing the release be competent to contract at the time, that the release not be obtained by means of fraud or Undue Influence, and that the instrument or transaction in question be sufficient to constitute a release or renunciation of rights. In one case, a daughter gave her father a receipt acknowledging payment of money that she accepted as her "partial" share of all real estate left by him. The court held that she was not barred from sharing in the remainder of the real estate left upon her father's death, since the word partialindicated that the money received was merely an advancement. At common law, a person could not renounce an intestate share, but modern statutes permit renunciation. A renunciation or a waiver sometimes requires the execution and delivery of a formal document. Renunciation is frequently employed by those who would incur an increased tax burden if the gift were to be accepted. A simple acceptance can be either express or implied. A person can be barred from accepting his or her rights to an estate by a lapse of time, as specified by statute. Once a person accepts an intestate share, he or she cannot subsequently renounce the share under most statutes. A person who renounces the succession cannot revoke the renunciation after the other heirs have accepted the property that constitutes his or her share. However, that person can accept his or her share if the other heirs have not yet done so. Gifts and Conveyances in Fraud of Heirs A person ordinarily has the right to dispose of his or her property as he or she sees fit, so that heirs and distributees cannot attack transfers or distributions made during the decedent's lifetime as being without consideration or in fraud of their rights. For example, a parent during his or her life can distribute property among his or her children any way he or she wants with or without reason, and those adversely affected have no standing to challenge the distribution. One spouse can deprive the other of rights of inheritance given by statute through absolute transfers of property during his or her life. In some jurisdictions, however, transfers made by a spouse for the mere purpose of depriving the other of a distributive share are invalid. Whether a transfer made by a spouse was real or made merely to deprive the other spouse of the statutory share is determined by whether the person actually surrenders complete ownership and possession of the property. For example, a husband's transfer of all his property to a trustee is void and illusory as to the rights of his surviving wife if he reserves to himself the income of the property for life, the power to revoke and modify the trust, and a significant amount of control over the management of the trust. There is no intent to part with ownership of his property until his death. Such a trust is a device created to deprive the wife of her distributive share. Advancements or gifts to children, including children by a former marriage, which are reasonable in relation to the amount of property owned and are made in Good Faith without any intent to defraud a spouse, afford that spouse no grounds of complaint. Good faith is shown where the other spouse knew of the advancements. If a spouse gives all or most of his or her property to the children without the other spouse's knowledge, a rebuttable presumption of fraud arises that might be explained by the children. Title of Heirs and Distributees Inheritance rights vest immediately on the death of an intestate, and the heirs are usually determined as of that time. The title to realty ordinarily vests in an intestate's heirs immediately upon his or her death, subject, under varying circumstances, to certain burdens, such as the rights of the surviving spouse or the debts of the intestate. The title obtained by the heirs on the death of their ancestor is subject to funeral expenses, the expenses, debts, or charges of the administration, and the charges for which the real property is liable, such as liens and encumbrances attached to the land during the lifetime of the intestate. At common law and under the statutes of most states, the title to personal property of a deceased person does not ordinarily vest in his or her heirs, next of kin, or distributees on his or her death. Their title and rights, therefore, must generally be obtained or enforced by virtue of administration or distribution. Legal title to personal property is suspended between the time of the intestate's death and the granting of the Letters of Administration. On distribution, the title of the distributees relates back to the date of the intestate's death. While the title to personal property does not immediately vest in the heirs, their interest in the estate does. The heirs have a vested equitable right, title, or estate in the personal property, subject to the rights of creditors and to charges and expenses of the administration. The personal estate of an intestate goes ultimately to those who are next of kin at the time of the intestate's death as opposed to those who are next of kin at the time that the estate is to be distributed. If a person who is entitled as a distributee dies after the death of the intestate and before distribution, his or her share does not go to the other persons entitled as distributees, but instead passes to his or her own heirs. Debts of Intestate Estate Heirs and distributees generally receive property of their ancestor subject to his or her debts. The obligation of an heir or distributee to pay an ancestor's debt is based upon his or her possession of the ancestor's property. All property of an intestate ordinarily can be applied to pay his or her debts, but, generally, the personal property must be exhausted first before realty can be used. Rights and Remedies of Creditors, Heirs, and Distributees The interest of an heir or distributee in the estate of an ancestor can be taken by his or her creditors for the payment of debts, depending upon the applicable law. Advancements received by an heir or distributee must be deducted first from his or her share before the rights of creditors of the heir or distributee can be enforced against the share. Further readings Akright, Carol. 2001. Funding your Dreams Generation to Generation: Intergenerational Financial Planning to Ensure your Family's Health, Wealth, and Personal Values. Chicago: Dearborn Trade. Brashier, Ralph C. 2004. Inheritance Law and the Evolving Family. Philadelphia, Pa.: Temple Univ. Press. Condon, Gerald M., and Jeffrey L. Condon. 1994. Beyond the Grave: The Right Way and the Wrong Way of Leaving Money to Your Children. New York: HarperInformation. Daly, Eugene J. 1994. Thy Will Be Done: A Guide to Wills, Taxation, and Estate Planning for Older Persons. Amherst, N.Y.: Prometheus. Cross-references Consanguinity; Decedent; Escheat; Premarital Agreement. West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved. Ads by Google Ask a Lawyer Online Now A Lawyer Will Answer in Minutes! Questions Answered Every 9 Seconds. Law.JustAnswer.com descent and distribution n. the system of laws which determine who will inherit and divide the possessions of a person who has died without a will (intestate). (See: descent, inheritance, intestate succession, degree of kinship) Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved. Ads by Google Ask a UK Lawyer Online A UK Lawyer Will Answer You Now! Questions Answered Every 9 Seconds. JustAnswer.co.uk Want to thank TFD for its existence? Tell a friend about us, add a link to this page, add the site to iGoogle, or visit the webmaster's page for free fun content. Link to this page:

Will Construction and Extrinsic Evidence

Whenever the validity of a will is contested, every court allows the use of extrinsic evidence to determine the validity of the will, such as whether the decedent hadtestamentary capacity or if the will was properly executed according to the Wills Act formalities. However, the use of extrinsic evidence to resolve ambiguities in the will has been limited under common law. Generally, the courts admit extrinsic evidence to resolve ambiguous wording but will not add words to the will, since they consider that re-writing the will.

Plain Meaning Rule

The common law tends to interpret wills according to their plain meaning. Courts may use extrinsic evidence to resolve an ambiguity, but they will not allow extrinsic evidence to add or subtract from the will, nor to re-interpret words to mean something other than their plain meaning, even when there was an obvious mistake andtestamentary intent was clear. Although probate judges have repeated many times the piety that testamentary intent is paramount, they argue that allowing extrinsic evidence to change a will from its plain meaning invites fraud and increases the cost of administering the estate.

There are numerous arguments for only allowing a plain meaning interpretation to a will:

1. If a will can be amended with extrinsic evidence, then how can any testator be sure that her intention will be carried out?
2. Extrinsic evidence can be unreliable.
3. Extrinsic evidence can be fraudulently created.
4. Extrinsic evidence may alter the testator's scheme, especially since many years may have passed since the will was drafted and witnessed. People, and especially lawyers who drafted the will, are apt to say what the testator should have intended instead of what she actually intended, especially if things have changed, such as tax laws, where changing the will would be more advantageous to the beneficiaries.

However, the modern trend is to abolish the plain meaning rule, because, more often than not, the plain meaning rule frustrates the testator's intent rather than preserves it. Most of the arguments against abolishing the rule are mitigated by requiring a clear-and-convincing-evidence standard.

Patent Ambiguities

A patent ambiguity is a ambiguity or contradiction that is evident from the will itself. Examples of patent ambiguities include identifying a beneficiary, but failing to mention the gift; giving a gift to one beneficiary, then later in the will, giving the same gift to another, or stating that a beneficiary has a specific proportional interest in property, then later repeating the same devisement to the same beneficiary but with a different proportional interest. Patent ambiguities may arise from the testator or from scrivener's error, where the ambiguity arose because of a mistake in drafting the document, or from the indiscriminate use of boilerplate language in constructing the will.

Jurisdictions differ as to whether they will admit extrinsic evidence to resolve patent ambiguities. Many courts do not admit any extrinsic evidence at all, and this was the predominant ruling of courts in the past. However, courts are increasingly allowing extrinsic evidence, especially when the ambiguity has arisen because of a scrivener's error, although they differ as to what kind of evidence is admissible. For instance, many courts allow evidence to show the testator's intent, while others specifically exclude such evidence, ruling that the testator's intent should only be found in the will itself.

Latent Ambiguities

A latent ambiguity is one that is not evident from the will itself, but becomes evident when the fulfillment of the ambiguous clause is attempted. Most latent ambiguities involve beneficiaries or property that have been misidentified or where the identification is ambiguous. There are 2 specific types of latent ambiguities: equivocation and misdescription.

An equivocation is a description that may describe more than 1 object. For instance, a testator leaves a specific request to his nephew, but he has more than 1 nephew.

A misdescription is a description where part of it is incorrect. A common example of this type of ambiguity is devising property identified by a specific address, but the address is incorrect, or a beneficiary is identified by a nickname instead of his legal name.

Many jurisdictions, especially in the past, will only delete the ambiguous words to see if a plain meaning can be given to the resulting sentence. If a plain meaning without the crossed-out words does not resolve the ambiguity, then these courts treat the gift as a failed gift, in keeping with their rule that they will admit extrinsic evidence to resolve ambiguous wording, but not to rewrite wills.

However, the courts have allowed a personal usage exception, where the testator has habitually used the same words to connote a specific meaning. The most common example of this is the use of nicknames. When the testator bequeaths a gift to a person identified by their nickname, the courts will generally admit extrinsic evidence to determine the actual identity of the person. Another common example is using the wrong word technically in referring to something, such as a testator who commonly referred to his stepchildren as his children.

In the case of latent ambiguities, the admittance of evidence is a necessity, since the ambiguity would not be evident to the court without someone bringing the ambiguity to its attention. Again, jurisdictions differ in their responses: some courts will admit testator's intent as expressed in the will, while others will admit testimony as to what the testator said when the will was executed.

Reformation: Allowing Extrinsic Evidence to Resolve Ambiguities

The modern trend in the law is toward reformation, in which extrinsic evidence is admitted to resolve any type of ambiguity, even if it is necessary to reform the will. Hence, no consideration is given to the plain meaning rule or the distinction between patent and latent ambiguities, or to whether the error was caused by the testator or the drafter of the will. The arguments for allowing reformation are several:

1. Courts admit evidence when there is fraud, so why should it be different for mistakes in drafting?
2. An ambiguity is an ambiguity—why provide different remedies simply because they are classified differently?
3. Since most courts allow a personal usage exception, allowing extrinsic evidence to resolve personal usage ambiguities but not for other ambiguities is incongruous.
4. And if testamentary intent is the primary objective in probating the will, then why frustrate the testator's intent because of an error that may be resolved with extrinsic evidence?
5. Some have argued that the reformed text was not properly attested. So what? The law does not require trusts or any other will substitute to be attested even though such instruments can dispose of more property than a will and the lack of their attestation does not present any problems.

Since courts have continually stressed the prime importance of the testator's intent, ambiguities are usually resolved by determining testamentary intent. Hence, these courts will admit evidence that specifically shows intent, such as the overall testamentary scheme of the testator, and remarks that the testator made at the time the will was executed. Then the ambiguities are interpreted so that they are best aligned with what the testator intended.

Another application of reformation is to change a will when something that the testator could not have foreseen frustrates his intent. Courts apply the probable intent doctrine by interpreting the testator's overall scheme, then reforming the will to best conform to that intention. Indeed, the Restatement (Third) of Property, Donative Transfers even allows the courts to reform the will when some of its provisions do not conform to the testamentary scheme, even when there is no ambiguity, but only with clear and convincing evidence! Although this has not been adopted by most courts yet, a common use of this provision is to alter the will to minimize taxes.

◄ Previous Will Components: Will Integration, Codicils, Incorporation by Reference, and Acts of Independent Significance

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Real Property

Personal Property	The Estate System and Future Interests	Concurrent Ownership of Real Property	Landlord-Tenant Law
Acquisition of personal property- the Rule of Capture Acquisition by Accession Inter-Vivos Gifts Gifts Causa Mortis Bailments	Introduction to the Estate System The Fee Simple and Fee Tail The Life Estate The Non-Freehold Estates Future Interests Rule Against Perpetuities	Introduction to Concurrent Ownership Tenancy-in-Common Joint Tenancy Tenancy by the Entirety Community Property Rights and Duties of Co-Tenants	The Leaseholds Duties of the Landlord Duties of the Tenant Landlord’s Tort Liability Assignments and Sub-Leases

Acquisition of Real Property	Easements	The Recording System and Mortgages	Rights and Duties Inherent in the Ownership of Real Property
Acquisition by Adverse Possession Contracts for the Sale of Real Property The Closing and Real Property Deeds	Introduction to Easements License Distinguished The Creation of Easements The Scope of Easements Termination of Easements Real Covenants & Equitable Servitudes	The Recording Acts- Introduction Notice and Race-Notice Jurisdictions Mortgages and Foreclosure	Eminent Domain and Just Compensation Zoning Laws Subterranean Caves and Lateral Support Oil and Gas and other Natural Resources Water Rights of Real Property Owners

Equitable Servitudes Self-Quiz

Back to Equitable Servitudes Main Page

Sam and Diane are neighbors. They agree that neither party have wild parties at their houses, so as to keep the noise level down in their area. Later, Sam sells his house to Woody. Is there privity between Woody and Diane  There is horizontal privity, only There is vertical privity, only There is horizontal privity and vertical privity There is neither horizontal not vertical privity

In the above case, assuming the notice, writing and intent elements are met, can Diane enforce the covenant against Woody?   Yes No

In the above case, assuming the notice, writing and intent elements are met, can Woody enforce the covenant against Diane?  Yes No

Sam and Diane are neighbors. They agree that neither party have wild parties at their houses, so as to keep the noise level down in their area. One night, Sam has a large party in his house that emits lots of noise and keeps Diane up all night. Assume that the agreement between Sam and Diane constituted a real covenant. What remedy, if any, is generally available to Diane?  She can get a court to award her monetary damages for the harm that Sam’s actions caused her  She can get a court to grant an injunction, forcing Sam to obey the terms of the covenant  Either of the above  None of the above

Rosie owns a large shopping mall called the “Palisades Center.” In the Palisades Center, there is a food court, in which scores of restaurants and booths that sell food are set up. Joe buys the rights to one of these stores located in the food court. Nowhere in the deed conveying the store does it mention anything about a restriction as to what Joe can do with the store. So, Joe opens a store that sells driveway repaving tar. Needless to say, the smell emanating from his store does little to enhance the experience of the patrons of the food court. Which of the following, if any, is the best argument that Rosie can make to force Joe to stop operating his store?  Joe’s store is creating a nuisance and so infringes on the property rights of the other store owners Rosie has an implied easement by necessity that allows her to prevent Joe from using his store in a manner that is harmful to other store owners Joe is under an obligation created by an implied equitable servitude to conform to the usages that were intended for the stores in that area Rosie has no valid argument to force Joe to change his store

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Equitable Servitudes

Terms: Real Covenant: A contractual obligation that relates to the ownership and/or use and enjoyment of real property. “Touch and Concern”: The status that a covenant has with regard to a particular parcel of land if the terms of the covenant call for actions or restrictions that are in regard to that parcel of land. Privity: A successive or mutual interest by two or more people in the same property that exists at the time that such property is transferred. Horizontal Privity: Privity between the parties who agree to a covenant or equitable servitude. Vertical Privity: Privity between transferor and transferee of property that is bound by a covenant or equitable servitude. Equitable Servitude: An agreement between two or more parties that restricts the right of use or enjoyment of one or more parcels of property that can be enforced through equity (ie. by specific performance).

A real covenant is a promise that relates to the ownership or usage of land. Although covenants, in general, fall within the province of contract law, it is important to discuss various aspects of the law regarding real covenants within the context of property law. Although covenants are similar to easements in that in both cases, the use of land is being restricted or enhanced by an obligation owed by the property owner to another party, real covenants differ from easements in that they are not considered ownership interests in land. Real covenants are promises. They can not be acquired by implication, necessity, prior use or prescription. They are agreements and thus can only be created by promises. Once in existence though, there is little practical difference between a negative easement and a real covenant. For example: Audrey and Zach are neighbors. Audrey lives in a comfortable two story house. One day, she finds out that Zach is planning on building a supermarket on his property. Audrey is very worried that this will increase the flow of people and the noise level in the area. Therefore, she offers Zach $50,000 if he promises to never build anything other than a residence on his property. Zach agrees. In this case, there is a real covenant between Zach and Audrey. Although Audrey does not own an interest in Zach’s land, and thus does not have an easement, Zach is bound by the covenant to abide by the terms of their agreement. Although a covenant is not an interest in land per se, it is nevertheless covered by the Statute of Frauds. Therefore, a covenant that is, by its terms, to last for more than one year, must be in writing to be enforceable. Note that a covenant is a contractual phenomenon, not a condition to the use and ownership of the land. Therefore, if a real covenant is breached, the aggrieved party can sue for damages arising from the breach of the covenant. But, the breaching party does not automatically lose ownership of the land simply by breaching the covenant. Enforcing Real Covenants against Successor Owners The key element of a real covenant that distinguishes it from an ordinary promise is that a real covenant can sometimes be enforced against successive owners of the property. If a covenant can be enforced against successive owners, it is said to “run with the land.” This means that, like an easement, the covenant can remain effective even if the land is transferred to a third party. Of course, this distinguishes real covenants from ordinary contracts, as all ordinary contracts are enforceable only by and against people who are parties to the contract or intended beneficiaries. As with easements, there are often two parcels of land that are involved in a real covenant. First, there is the restricted or “servient” land. This is the land that is burdened by the restriction placed by the covenant. The other land is the benefited land; the land that enjoys the protections afforded by the covenant. In our last example, Zach’s land is the burdened land, while Audrey’s land is the benefited land. The most important question regarding successor owners is whether the burden runs with the servient land. In other words, if the owner of the burdened land sells or transfers the property, will the covenant still apply to the transferee? The rule is that the burden of the real covenant will run with the land if six conditions are met. Essentially, these six conditions boil down to one idea: if the transferee knew or should have known about the covenant and it’s fair to bind the transferee to the terms of the covenant, then the burden will run with the land. The six conditions are: 1) The covenant must have been in writing. 2) The intent of original parties must have been for the covenant to run with the land: This is usually satisfied with a term in the covenant that applies the covenant to the “successors heirs and assigns” of the burdened land owner. Even without this provision, such intent will usually be presumed by a court if the circumstances are such that this was the likely intent of the parties and in the absence of evidence to the contrary. 3) The covenant must “touch and concern” the land: In other words, the covenant must be in connection with the parties’ status as landowners. Examples of covenants that touch and concern the land include agreements to pay homeowners’ association fees or an agreement by condominium owners to abide by restrictions set forth by the governing body of the condominium complex. 4) Horizontal Privity: This is the element that is least likely to be satisfied. This element requires that the parties who made up the covenant must have shared some ownership or contractual relationship in the servient land. In other words, the original contracting parties must have shared some level of ownership or control in the land. This could be because the servient land was sold from one party to the other or because one party rented out the servient land to the other party, etc. However, if the two parties who agreed to the covenant were merely neighbors and one of the parties had no ownership interest in the servient land, then the covenant will not run with the land. For example: 1) Big Bird owns two lots, side by side. He sells one of the lots to Oscar. As part of the sale, the parties agree to a covenant that guarantees that Oscar will not allow garbage to pile up on his land. This covenant can run with the land if the other elements are satisfied because there is horizontal privity. Since Big Bird owned both estates and granted one of them to Oscar at the time that the covenant was made, there was “horizontal” privity between the parties who agreed to the covenant. Thus, if Oscar later sells his lot to Slimy, Slimy could also be bound by the terms of the covenant. 2) Big Bird owns two lots, side by side. He leases one of the lots to Oscar for five years. As part of the lease agreement, the parties agree to a covenant that guarantees that Oscar will not allow garbage to pile up on his land. This covenant can run with the land if the other elements are satisfied because there is horizontal privity. Since the two parties had a landlord-tenant relationship at the time that the covenant was made, there was “horizontal” privity between the parties who agreed to the covenant. Thus, if Oscar later assigns his interest in the land to Slimy, Slimy could also be bound by the terms of the covenant. 3) Big Bird and Oscar are neighbors. Big Bird is frustrated by the amount of garbage that piles up on Oscar’s property. He and Oscar strike a deal under which Oscar guarantees that he will not allow garbage to pile up on his land. This burden cannot run with the land because there is no privity between Oscar and Big Bird. Big Bird has no ownership interest in the servient estate at all. Thus, if Oscar later sells his lot to Slimy, Slimy would not be bound by the terms of the covenant. 5) Vertical Privity: The owner of the servient land must have voluntarily transferred the land to the successor owner for the burden to run with the land. For example: Big Bird owns two lots, side by side. He sells one of the lots to Oscar. As part of the sale, the parties agree to a covenant that guarantees that Oscar will not allow garbage to pile up on his land. Later, Slimy acquires the land from Oscar via adverse possession. The covenant will not run with the land. There is no privity between Oscar and Slimy because Oscar never transferred the property to Slimy. Slimy took it via adverse possession. The difference between horizontal and vertical privity can be a confusing one. Horizontal privity is between the parties that made the covenant. Vertical privity is between the people who made the covenants and the people to whom they are transferring the property. See the following chart: 6) The transferee must have had notice, or reason to have notice, that the covenant existed at the time that the transferee took possession of the burdened estate. The other question becomes whether the benefit can run with the land if the benefited land is transferred to a third party. In our above examples, suppose Big Bird had transferred his land to Snuffalufagus? Would Snuffalufagus be able to enforce the terms of the covenant that Big Bird had with Oscar. Thankfully, the rule here is quite simple. A benefit runs with the land if elements 1,2,3 and 5 above (writing, intent, “touch and concern” and vertical privity) are present. The elements of horizontal privity and notice are not necessary for a benefit to run with the land. The reason notice is not necessary is because the buyer of the benefited estate would clearly always want the benefit to run. Therefore, the fact that the buyer did not know of the benefit does not make it unfair for the benefit to run with the land. Conversely, it would be unfair if the burden ran with the land against a buyer of a burdened estate who had no notice of the covenant because knowledge of the covenant may have influenced his or her decision to buy the land in the first place. Equitable Servitudes An equitable servitude is similar to a real covenant. It is a promise that restricts the use of land in some way that is designed to be enforced with specific performance, rather than with monetary damages. In other words, while covenants are usually enforced by the awarding of monetary damages to the aggrieved party, equitable servitudes are enforced with an injunction preventing the use of the property in the manner that is proscribed by the servitude. Since equitable servitudes are similar to real covenants, it does not pay to define them from scratch. Instead, we will discuss the differences between equitable servitudes and real covenants: - Remedy: The key difference is the difference we have already discussed. A covenant is enforceable by monetary damages and a servitude is enforced by an injunction to comply with the servitude. - No privity required to run with the land: For an equitable servitude to run with the land, no privity (horizontal or vertical) is required. Thus, for an equitable servitude to be binding upon the successor owner of the servient property, the only elements that are required are elements 1,2,3 and 6 (writing, intent, ”touch and concern” and notice) above. Note that the “notice” requirement is also satisfied, as in the case of a covenant, if the successor owner should have known of the covenant under the circumstances. For example: Lisa lives in a house that is part of a complex of houses. Each house is completely and independently owned by an individual person. One day, all the owners of houses in the complex get together and agree, in writing, that henceforth, to increase the quality of life for all the people that live in the complex, no pets will be allowed in any of the apartments. Furthermore, they agree that any party who violates this agreement can be enjoined from continuing to do so by an action brought in court by the other parties to the agreement. Clearly, this constitutes an equitable servitude. Maureen, who knows of this restriction, nevertheless covets a house in this complex. So, she moves into Lisa’s house. Lisa fails to take any steps against Maureen and Maureen eventually acquires Lisa’s house via adverse possession. Maureen then brings her 17 cats into the house. The other parties to the agreement can enforce the equitable servitude against Maureen. Although there is no horizontal privity (the other house owners had no ownership interest in Lisa’s house) or vertical privity (she acquired Lisa’s house via adverse possession), the other elements are satisfied. The agreement was in writing. The parties clearly intended that everyone who shall live in the complex would be bound by the agreement. The agreement did “touch and concern” the land because it was meant to improve the quality of life for homeowners in the area. In addition, Maureen had notice of the servitude. Thus, Maureen is bound by its terms and if she violates them, the other owners can bring an action against her to enforce the terms of the agreement via an injunction from the court. - Creation by Implication: Although a covenant must be created by a promise, an equitable servitude can be created by implication. The most common manner in which this can happen is when an entire development is built under a common plan or scheme. Courts will often infer an implied promise by all of the owners of tracts in that development to use their tracts in a manner that is consistent with the original plan or scheme. For an equitable servitude to be created in this manner, the buyer against whom it is being enforced must have had notice of the common plan or must have had reason to know of the common plan. For example: Donald buys 100 acres of land with the intent to divide them into lots on which to build single family residences. He divides the property into lots and begins to sell them off, one at a time. At first, he inserts a provision into every deed that requires that the property be used only as a single family residence. However, later on, he forgets to insert this provision into the deed. Sheila buys one of these lots with the provision missing and decides to build an apartment building on her lot. Assuming that Sheila knew or should have known about the original plan, a court would likely infer an implied equitable servitude to prevent Sheila from building an apartment building on her lot. Finally, covenants and servitudes can generally be terminated in the same manner as easements can be terminated (e.g. though expiration, merger, abandonment, etc.). For a discussion of the manner in which easements can be terminated, please see the previous sub-chapter, entitled “Termination of Easements.”

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