Wills and Inheritance

Will of real estate may be governed by the law of the situs of the property rather than the decedent’s domicile at death

/ Real Estate Transactions, Title Issues, Wills and Inheritance

The traditional rule is that title to real property is determined by the whole law of the situs of the property, meaning both the substantive law of the situs and its choice-of-law rules. Thus title is determined by whatever law would be applied at the situs. This rule has been rejected in some cases in recent years because personal property on death is determined by the law of the domicile of the decedent and if different rules are applied to real property located elsewhere and personal property, the decedent’s wishes may be ignored or perverted. However, many courts adhere to the traditional rules as occurred in In re Estate of Latek, 960 N.E.2d 193 (Ind. Ct. App. 2012), a court at the decedent’s domicile (Illinois) refused to accept a will for failure to comply with Illinois will execution requirements but the court in Indiana (where the property was located) refused …

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Ambiguous “survivor” reference creates a tenancy in common rather than a joint tenancy

/ Estates and Future Interests, Real Estate Transactions, Wills and Inheritance

A deed granting an interest to two siblings (Roger & Dana Waid) “or the survivor” was interpreted as created a tenancy in common rather than a joint tenancy. Young v. Waid, 2012 WL 2947590, (W.Va. 2012). Following the death of Roger, Dana would have had a 100 % interest in the property if they held as joint tenants (because of her right of survivorship) but only a 50 % interest (with 50% held by Roger’s heir or devisees) if they held as tenants in common. Applying an interpretive presumption in favor of tenancies in common, the West Virginia Supreme Court noted that the deed did not use the words “joint tenancy” or “right of survivorship” and that it was possible the words “to the survivor” were mere surplusage. The court found the language not clear enough to constitute an intent to create a right of survivorship, effectively privileging giving each sibling (and …

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More states recognize same-sex marriage

/ Antidiscrimination Law, Marital Property, Sexual Orientation, Wills and Inheritance

Within the last month or so, new states have recognized same-sex marriage. They are Delaware, Rhode Island, and Minnesota. All did so legislatively. Del. Code, tit. 13, §§101 to 122, as amended by 2013 Del. HB 75 (May 8, 2013); R.I. Gen. Laws §§15-1-1 to 15-1-5, as amended by 2013 R.I. Pub. Laws 4 (2013 R.I. HB 5015); Minn. Stat. §§517.01 to 517.09, as amended by 2013 Minn. Sess. Law Serv., ch. 74 (H.F. 1054) (May 14, 2013). Internationally, recent additions to the list include France, New Zealand, and Uruguay. As of May 17, 2013, there are now thirteen jurisdictions (12 states and the District of Columbia) that recognize same -sex marriage in the U.S. They include  Connecticut, Delaware, the District of Columbia, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington. Three American Indian nations also recognize same-sex marriage, including the Coquille Indian Tribe, the Little Traverse Bay Bands of Odawa Indians, and …

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European Union dispute about inheritance rights of children

/ Wills and Inheritance

Both Great Britain and the United States have long traditions of letting individuals  write wills to determine who owns their property when they die. Those laws are tempered by statutes protecting the rights of spouses to some portion of the decedent’s estate. But both countries allow parents to disinherit their children. See Estate of Max Feinberg, 2009 WL 3063395 (Ill. 2009)(lawful to refuse to leave property to grandchildren because they married non-Jews). However, most other countries in Europe consider it both remarkable and close to barbaric to allow parents to disinherit their children; indeed, in 26 of 27 European Union countries, a large part of the estate of the deceased is reserved in equal shares for surviving children. This difference has erupted into a dramatic conflict as the EU announced rules for distribution of property located in more than one EU country. Not only do the two sides have differing views of …

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