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Wills and probate

Succession rules

What rules and restrictions (if any) govern the disposition of and succession to an individual’s property and assets in your jurisdiction?

Rules vary depending on the state.

Generally, the two main choice of law principles in a testamentary context – including with respect to validity, testamentary capacity, revocation and construction of the instrument – are that the law of:

  • the situs of real property governs the validity and effect of a disposition of real property; and
  • the testator’s last domicile governs the validity and effect of the disposition of personal property, tangible and intangible, wherever situated.

US courts in the jurisdictions of domicile and situs will generally apply their own local law to the respective disposition of personal and real property, unless another jurisdiction clearly has a stronger interest in the matter.

Intestacy

What rules and procedures govern intestacy?

Each state has its own laws governing intestacy.

The distribution of intestate property is generally administered by the court with jurisdiction over the property (generally the situs of the property for realty and the decedent’s last domicile for tangible and intangible personalty). Intestate property will generally pass to the decedent’s spouse and lineal descendants, if any, as provided by state statute.

Governing law

What rules and restrictions (if any) apply to the governing law of a will?

Each state has its own laws governing wills. Generally, a will is validly executed if it is:

  • in writing;
  • signed by a mentally capable testator; and
  • witnessed by a specified number of individuals as provided by state statute.

Formalities

What are the formal and procedural requirements to make a will? Are wills and other estate documents publicly available?

Requirements vary depending on the state.

Generally, a will is validly executed if it is:

  • in writing;
  • signed by a mentally capable testator; and
  • witnessed by a specified number of individuals as provided by state statute.

Some states recognise holographic wills (ie, where the instrument is unwitnessed but validly executed in the testator’s handwriting). Codicils, which are amendments to the will, are generally recognised if they observe the same formalities and procedural requirements for will execution.

Wills and codicils generally become publicly available once probated.

Validity and amendment

How can the validity of a will be challenged? Can the will be amended after the decedent’s death?

There are various mechanisms under state law for challenging the validity of a will. The most common is a challenge to the testator’s mental capacity when they executed the testamentary instrument. Testators must be:

  • capable of knowing and understanding:
    • the nature and extent of their property;
    • the natural objects of their bounty; and
    • the disposition they are making; and
  • be able to connect these elements to one another when executing a testamentary instrument.

Other common challenges include duress, fraud, mistake, revocation or undue influence when executing the testamentary instrument. Generally, the burden of proof falls on the challenger to the validity of the will.

Generally, courts can reform a will if the reformation conforms the text to the donor’s intention and if it is established by clear and convincing evidence:

  • that there was a mistake of fact or law affecting the terms of the instrument; and
  • what the donor’s intent was.

In certain circumstances, a will may be modified (which is different from reformation) in order to achieve the testator’s tax objectives, provided it does not violate the testator’s intent.

How is the validity of a will established in your jurisdiction?

This varies depending on the state.

Generally, a person named in the will can petition the relevant court for probate as a fiduciary (generally the nominated executor). It is incumbent on the proponent to establish the validity of the will by proving to the satisfaction of the court that it was duly executed by the testator while possessing testamentary capacity and without fraud, duress or undue influence. Although the court will usually require the testimony of the witnesses to the will, many courts will accept a ‘self-proving’ affidavit signed by the witnesses contemporaneously with the execution of the will and attesting to the validity of the will in lieu of such testimony.

To what extent are foreign wills recognised? Do any special rules and procedures apply to establishing their validity in your jurisdiction?

This varies depending on the state.

For the most part, US courts will not accept jurisdiction over the estates of non-domiciliaries. However, a court may accept jurisdiction – usually in the context of an ancillary probate proceeding – where the decedent died leaving realty in the subject jurisdiction. In such cases, courts will generally accept the validity of a foreign will if it was successfully probated without contest in the decedent’s domicile. Nevertheless, if the court is unsatisfied with the validity of the probate proceedings in the domicile jurisdiction, it may assume original jurisdiction and conduct its own analysis regarding the validity of the foreign will.

It is recommended that US non-resident aliens holding realty in the United States execute a will valid in the jurisdiction where the property is located.

Estate administration

What rules and procedures govern:

(a) The appointment of estate administrators?

This is governed by state law and varies from state to state.

Generally, a court will issue letters testamentary to any individual (usually one who is named in the will) who is otherwise not an infant, incompetent, felon or who does not qualify by virtue of substance abuse, dishonesty, improvidence, want of understanding or is otherwise unfit for office, as determined by the court. In some cases, a state may require a fiduciary to be a resident of that state.

(b) Consolidation and administration of the estate?

This is governed by state law and varies from state to state.

Generally, the relevant probate court oversees the consolidation and administration of the estate, which is usually the court in the jurisdiction of the testator’s last domicile for personalty and the situs of real property for realty. US courts in the jurisdictions of domicile and situs will generally apply their own local law to the respective disposition of personal and real property unless another jurisdiction clearly has a stronger interest in the matter.

(c) Distribution of the estate to heirs?

This varies depending on the state. However, the executor who is granted letters testamentary by the probate court is generally responsible for making distributions to the decedent’s heirs and ultimately providing an accounting of such distributions to the court.

(d) Settlement of the decedent’s debts and payment of any taxes and fees?

This varies depending on the state. However, the executor who is granted letters testamentary by the probate court is generally responsible for settling debts of the estate and making payments of taxes and fees. The executor may be required to provide an accounting to the probate court showing that all estate liabilities have been settled.

Planning considerations

Are there any special considerations specific to your jurisdiction that individuals should bear in mind during succession planning?

As the probate process can be time consuming, costly and sometimes contentious, many testators execute a revocable trust agreement contemporaneously with the will.

Assets transferred to a revocable trust during the testator’s lifetime are not subject to probate at their death, and such assets will be distributed or retained by the trustee according to the terms of the trust. Any assets not transferred to the revocable trust during the testator’s lifetime may be transferred to the trust by the terms of the testator’s will.

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