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Estates
Estates are the assets and liabilities of a deceased person, including land, personal belongings and debts.
6,325 Questions
Can the wife of a beneficiary be a witness to a will?
United States
The quick answer to your question is:
In the best of circumstances, a witness to a will shouldn't benefit from the will. This could create a conflict of interest. A person witnessing a will should not have an interest in the will as a beneficiary, trustee or executor and should not be related to the testator either by blood or by marriage. Generally, a trust created in a will is called a testamentary trust. In the US, a trustee of a will is a testamentary trustee. A living trust that has testamentary aspects should be executed with the same formalities as a will in the state where the document is executed. State laws are not uniform. Therefore, an attorney who is familiar with the laws of your state should always be consulted.
This is a complicated and multi-faceted topic. The following is a brief discussion of different aspects of witnessing a legal document and is not intended as legal advice. It is important to remember that the purpose of having a properly drawn and executed legal document, especially a testamentary document, is to make the document enforceable and able to withstand challenges of undue influence. There is no simple, uniform rule that is followed by every jurisdiction. Competent witnesses are an integral part of that process and the person drafting legal instruments must do their homework to make certain the document is properly drafted and executed.
Wills
There are two issues that arise concerning the importance of choosing competent witnesses to a will. First, improper witnesses can still render the will invalid in some jurisdictions or affect the gift to a devisee who witnessed the will. Second, although interested persons can witness wills in some states without making the will invalid, in some cases interested witnesses can make the will vulnerable to a challenge of undue influence and probate is a common arena for contentious family squabbles over estates.
At common law a witness to a will could not be a beneficiary. That error would invalidate the will. That harsh treatment was later mitigated by voiding only the gift to that beneficiary or limiting it to an intestate share. That treatment has been further reduced by some state laws, and the Uniform Probate Code, so that a will is valid and the witness-beneficiary suffers no penalty. However, the spectre of undue influence can still rear its ugly head when any person who benefits from the will is also a witness. By that same argument an executor or testamentary trustee who also witnessed the will would leave the door open for later challenges to her/his appointment. Remember, the main objective of proper execution is to make the will strong enough to carry out the testator's wishes.
Most states require two witnesses. Many states require that the witnesses be unconnected to the will. Some states allow an interested party to act as witness but then require that two additional witnesses (that makes three) who are not interested parties also witness the will. In a couple of states a beneficiary-witness must be accompanied by at least two disinterested subscribing witnesses (that makes three) or the gift to that beneficiary will be void. In other states, the interested beneficiary-witness will only receive an intestate share regardless of the testamentary gift unless there are at least two additional disinterested witnesses.
A Uniform Probate Code has been in the works since around 1969. Although it was meant to simplify the probate process in the US it will never be completely successful because only nineteen states have adopted it and of those nineteen some adopted it with modifications. Other states have adopted only parts of the code. Some states have strong opposition to its adoption because some think it encourages a lack of supervision and overturns existing laws that created stronger protection for estates. There is always a good argument against watering down legal formalities. Those states may not abandon their stricter statutory provisions regarding estates. In addition, freestanding acts developed from the UPC have been proposed as an alternative to adoption as a whole.
Of course, all this modification and adoption-in-part makes the Uniform Probate Code not uniform throughout the states that have adopted it. A good example of its easing up on the rules is the following section.
Uniform Probate Code
Section 2‑505. Who May Witness.
- (a) An individual generally competent to be a witness may act as a witness to a will.
- (b) The signing of a will by an interested witness does not invalidate the will or any provision of it.
That section includes some very interesting (and ironic) comments that both acknowledge the old formalities, illustrate the ambiguities that can arise in choosing competent witnesses and may reveal some one-sided argument for reducing the formalities:
- Of course, the purpose of this change is not to foster use of interested witnesses, and attorneys will continue to use disinterested witnesses in execution of wills. But the rare and innocent use of a member of the testator's family on a home‑drawn will is not penalized.
- This approach does not increase appreciably the opportunity for fraud or undue influence. A substantial devise by will to a person who is one of the witnesses to the execution of the will is itself a suspicious circumstance, and the device might be challenged on grounds of undue influence. The requirement of disinterested witnesses has not succeeded in preventing fraud and undue influence; and in most cases of undue influence, the influencer is careful not to sign as a witness, but to procure disinterested witnesses.
When we consider the various factors as presented above there is one over-riding fact: State laws are not uniform. An improperly drafted and executed will can result in the will being thrown out completely in some jurisdictions and the decedent's property distributed as though there was no will. A poorly drafted and executed will can make the will vulnerable to challenges of undue influence by disgruntled family members in most jurisdictions and a successful challenge can cause significant changes to what the testator originally planned.
Since the laws in different jurisdictions vary and the Uniform Probate Code has not been uniformly adopted in every state and is not "uniform" in its adoptions, and people do not always keep abreast of the law, the best course is still to follow the fundamental rules of good legal practice which include:
- A person witnessing a will should not have an interest in the will as a beneficiary, trustee or executor and should not be related to the testator either by blood or by marriage.
- A testator should have their will drafted by an attorney who specializes in probate and who is familiar with state laws.
Trusts
Trusts have become increasingly popular as a way to bypass probate. As a result, conflicts between trustees and beneficiaries have also increased, many resulting in litigation. A trust transfers title to property to a trustee thereby giving the trustee complete control over all the assets of the trust. Good legal practice dictates that a Declaration of Trust should not be witnessed by the trustee.
A living trust that has testamentary aspects should be executed with the same formalities as a will in the state where the document is executed. As with wills, a witness-trustee may cause the trustee to become vulnerable to a challenge of undue influence. If the trust holds real estate located in another state it may also need to meet the requirements of the state where the real estate is located.
Trusts should be drafted by an attorney who specializes in trust law, estate planning and probate law.
How soon does a will have to be filed after death by an executor?
Most state probate codes have a section that addresses the filing of a will after the death of the testator. For example, in some states the named executor who is in possession of the original will must file it for probate within 30 days. Someone who is not the executor and has possession of the will is required to hand it over to the court within a certain time period also. The rules vary from state to state. You can check the rules in your state by performing a search using 'your state + probate code'. An example from the Probate Code of Washington State is provided below:
Washington State:
- Any person having the custody or control of any will shall, within thirty days after he shall have received knowledge of the death of the testator, deliver said will to the court having jurisdiction or to the person named in the will as executor, and any executor having in his custody or control any will shall within forty days after he received knowledge of the death of the testator deliver the same to the court having jurisdiction. Any person who shall wilfully violate any of the provisions of this section shall be liable to any party aggrieved for the damages which may be sustained by such violation.
Can a arrest warrant be used as a search warrant?
When a person is arrested, the arresting police officer may conduct a legal search of the area immediately under the control or reach of that person for evidence in connection with the purposes of the warrant, to protect the police or other citizens from injury or attack, or to prevent the person from escaping.
They can check the common areas where the arestee has access too. Example say it is your brother living with you, they can check the living room, the dining room, his room etc. but they can't check your room.
This is a very complicated matter and the best option is to consult with an attorney qualified in family/civil law. Any adult who wishes to obtain guardianship over another adult must file a petition with the probate court in the state and county where the named person resides. In almost every US state the person seeking guardianship must obtain legal representation and in every uS state the adult named in the guardianship and/or conservator position will be appointed a Guardian Ad Litem by the court. The named adult can contest the action through his or her GAL or can dismiss the GAL and hire private counsel if they so desire. Obtaining guardianship and/or conservatorship (not always the same action or the same person appointed for both) can be lengthy, complexed and expensive.
It usually depends whether or not it is a joint account with right of survivorship. A joint account which requires the signature of only one of the account holders is usually one with right of survivorship. One where both are required to sign does not usually have right of survivorship. Generally speaking, if it is an account with right of survivorship, things simply continue on as they did before the death of one of the account holders. Without right of survivorship, the account is usually frozen until after probate. But much depends on the actual wording of the account agreement and the practices of the financial institution. There are no clear and definitive specific answers to your general question.
What is a waiver of notice of probate of will?
The Waiver of Notice of Probate allows the estate to be opened without setting a formal hearing. This is a time saver because setting a formal hearing can be delayed due to a busy court docket.
Can the Executor of a will change what a beneficiary gets?
Assuming all creditors are paid, the beneficiaries can agree to a different distribution (as long as they are all adults), but they aren't really "changing the will."
If the wife dies intestate what are the husbands rights?
If her inheritance is now part of her estate it will pass according to the terms of her will or according to the state laws of intestacy if there is no will. You can check your state laws of intestacy at the related question link.
If her inheritance is now part of her estate it will pass according to the terms of her will or according to the state laws of intestacy if there is no will. You can check your state laws of intestacy at the related question link.
If her inheritance is now part of her estate it will pass according to the terms of her will or according to the state laws of intestacy if there is no will. You can check your state laws of intestacy at the related question link.
If her inheritance is now part of her estate it will pass according to the terms of her will or according to the state laws of intestacy if there is no will. You can check your state laws of intestacy at the related question link.
The surviving spouse is only responsible for credit card debt if the account were joint or the married couple lived in a community property state; (Texas and Wisconsin treat marital debt differently than other CP states). Death benefits from life insurance with a named beneficiary or SS death benefit are not subject to creditor action for repayment of the deceased debts.
How can you close a bank account owned by a decedent?
Only the legal heir of the deceased has the right to close the account. He/she must take valid identity proof, relationship proof and death certificate of the deceased along with the documents that prove that he/she is the legal heir of the deceased person to the bank to close the account.
United States
In the United States, closing a decedent's bank account is a more formal process. You need to provide the bank with proof that you have the legal authority to close the account. That means you need proof from the probate court of your appointment as the representative of the estate or other official authority as that issued for a small estate. Proving that you are "the" heir is not enough unless the estate has been officially closed and shows that you are the only heir to that account. During the probate process, only the court-appointed estate representative has the authority to access a decedent's bank account, not the heir(s).
When a parent and child have a joint checking and the parent dies does the child receive the money?
Depends how the account was set up (Joint Tentancy with Survivorship Rights, Grantors Trust, under the UGMA, etc.) The generic answer is no, it would not be treated as income. The money in the account would be included in the decedants estate and be distributed through either Trust or Probate as a qualifying gift.
Is Iowa a community property state?
No, when it pertains to marital property, Indiana is an "equitable distribution" state. When it pertains to debts, both spouses have responsibility for debts jointly incurred during the marriage, solely incurred debts are the responsibility of the account holder spouse.
What is exempt from bankruptcy?
As found on at least 100 other places here...and allowed certain modifications (albeit minor overall) in different states.
Exemptions under Federal law, which may change a little in State applications by the Federal BK Courtyou file in:
Personal and Real Property: (1) Household: Up to $425.00 per item not to exceed a total of $8,625.00 (includes animals, appliances, books, crops, furnishings, household goods, clothing, musical instruments) (2) Jewelry: Up to $1,075.00 (3) Vehicles: Up to $2,575.00 (4) Work tools (implements, books and tools of trade): Up to $1,625.00 (5) Health aides (wheelchair, etc.): Unlimited (6) Burial plot: Up to $16,500.00 (in lieu of real estate exemption) (7) Real estate (house, co-op or mobile home): Up to $16,150.00 (8) Any property: Up to $8,075.00 of unused portion of real estate exemption Wages, Pensions, Recoveries and Benefits: (1) Wages: None (2) Wrongful death funds: Amount needed for support (3) Personal injury funds: Up to $16,500.00 (excluding that for pain and suffering or pecuniary loss) (4) Lost earnings payments: Unlimited amount (5) Retirement benefits: Amount needed for support (6) Alimony / child support: Amount needed for support (7) Unemployment compensation: Unlimited amount (8) Veterans benefits: Unlimited amount (9) Social security benefits: Unlimited amount (10) Public assistance: Unlimited amount (11) Crime victims compensation: Unlimited amount Insurance: (1) Disability: Unlimited amount (2) Unemployment benefits: Unlimited amount (3) Unmatured life insurance: Unlimited amount (4) Life insurance policy loan value, dividends or interest: Up to $8,625 (5) Life insurance proceeds: Amount needed for support If you're doing a Chapter 7 bankruptcy, you can't discharge: * Taxes and tax liens * Student loans * Domestic support obligations (child support and alimony) * Luxury goods over $500 purchased within 90 days of filing * Fines or penalties of government agencies * Cash advances of more than $750 taken within 70 days of filing * Fraudulent debts * Willful or malicious injury to another * Death or personal injury from the operation of a motor vehicle, aircraft or vessel while intoxicated * Condominium or cooperative association fees * Debts not listed on your schedules Debts arising from fraud or maliciousness are not automatically excepted from discharge. The creditor must make a request to the court to except these types of obligations; otherwise they will be discharged.
Do you need a new will after a marriage?
Certainly, you have a new primary heir. And in some states, any will written before marriage is considered null and void.
What happen if executor of estate runs off with money from estate?
As long as they have not breached their fiduciary duties, nothing. They take all of the assets, value them, and use them to pay off all debts. If the debts are greater than the assets, the beneficiaries and remaining debt holders do not get paid.
What happens when the executor and trustee disagree?
You have problems. In general, when there are more than one executor, a majority of the executors rules on any one decision or action. That is easy. The difficult situation is where there are only 2 executors and if they disagree there is no majority. When there are two executors, all decisions and actions must be unanimous. If they disagree on something they either have to go to court and have the court make the decision or, if there is no hope of them ever agreeing on anything, then they should go to court to have one removed or have both removed and an impartial person appointed to serve as the sole executor.
How long is the time frame after someone dies can you settle the estate in IL?
In New Jersey, there is no set time limit by which an estate must be settled, although after 1 year, beneficiaries may request that a court order the executor to file an intermediate accounting to show what has been done so far. On the other hand, an estate is technically not supposed to be settled until at least 6 months after the date of death. This period of time is to make sure all proper creditors have been located and paid. No creditor should be paid until after the executor determines how much the estate owes in total.
I am a New Jersey attorney and specialize in probate matters. This is given for information purpose only and is not to be taken as legal advice.
Can a domestic partner inherit a deceased partner's property?
Some states have passed laws that give a right of inheritance to domestic partners. Some states allow committed couples to register a domestic partnership that gives rights of inheritance. If you live in a state that does not provide legal rights to domestic partners then your surviving partner has no legal rights if you die. Since inheritance rights vary from state to state couples who are not legally married should always obtain legal advice in their state of residence to make certain they take the necessary legal steps to protect their partner in the event of their death. That protection may require a valid will or trust.
Can the executor steal your inheritance?
As you know theft is a crime. You should first call the attorney who is handling the estate. The theft should be reported to the probate court. Carefully and clearly state what you believe to be the executors misbehavior and ask the judge to remove her and appoint a new executor. The executor's bond should cover any loss to the estate caused by the executor.
What does it mean to probate a will?
Probating a will means that the will must be presented to the probate court for allowance. The court will examine the will to determine its validity under state laws. When the will is allowed the court will appoint the named executor who is usually the person who submitted the will for probate. If no executor was named in a will the court will appoint the person who requested the appointment as long as there no are objections. An executor named in a will has no power or authority until they have been appointed by the court.
The court will issue Letters Testamentary to the executor and the letters provide the authority to settle the estate. The executor must settle the estate according to the provisions in the will and the state probate laws under the supervision of the court. The debts of the decedent must be paid before any property can be distributed to the heirs.
Can you apply for letters of administration if the estate has an executor?
If a person dies intestate (without a will) as the sole owner of property then their estate must be probated. A qualified person must apply to be appointed Administrator and will be issued Letters of Administration. The letters give the Administrator the authority to handle the estate property.
(Without these letters you can not do anything with the deceased's property.)
The executor or executrix is responsible for carrying out the wishes of the deceased. They are not, strictly speaking, required to consult the heirs as to the details of this unless the will explicitly specifies that they must.
The answer, therefore, is yes, she can.
If one of the heirs believes the executrix is not acting in good faith, then there are legal remedies for this; they should contact an attorney. Not taking the first offer that comes along is not necessarily a failure to act in good faith, though.
Do biological and adopted children have equal rights to the estate of deceased parents?
The same rights, unless a will states a differently. * In any US state it depends upon whether the person died intestate or if there was a valid Will. There are no laws that require a parent to leave any assets or property to children whether said children are biological or adopted. That being the case a parent(s) can legally exclude any or all children from a Will if they so choose. If the person dies without a Will the state's probate succession laws apply and adopted children are treated the same as biologcial children.
Does a Beneficiary have the right to enter a willed home?
Not until authorized to do so by the executor. The property belongs to the estate and the executor must protect the property.
