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6 Things To Know About Conveyance After Death
In layman terms, I’d just refer to this topic as leaving assets properly allocated to the desired parties upon death.
But in legal speak, this whole process is called conveyance after death.
One of the things at the back of our minds when we accumulate wealth is to leave behind a legacy for descendants. Wouldn’t it really hurt you if upon leaving this beautiful world, that all your hard work over the decades do not go towards the intended recipients?
This why a simple will is more important that a lot of people think. And if there is none, there is usually a processes overseen by the state to determine where assets, especially real estate goes to.
When an individual dies without a last will and testament, he is described to have died intestate. This will be the same if there is a will, but ruled as void by the court.
In such an event, the distribution of the deceased’s assets will be directed by state law. This process is call title by descent, or sometimes as intestate succession.
How the heirs are prioritized is as follows:
- Surviving spouse and children
- Parents, brothers, sisters
In the unusual situation where there are no legitimate heirs, the deceased’s property escheats to the state.
When there is a valid will left behind upon death of a person, it is said that he has died testate. This literally means that there is a testament with clear instructions for the disposal of his property.
The individual who made the will is referred to as the testator when is a man, and a testatrix when woman.
This will will detail personal and real property with instructions for distribution to persons or organizations.
The recipient of willed real property is known as devisee, and the property itself is known as devise.
The recipient of willed personal property is known as legatee, and the property itself known as bequest or sometimes as legacy.
In a will, an executor is usually names to enforce the distribution of the property.
However, there are times when an executor is not named. In this case, the court will appoint an administrator to handle the tasks.
To determine if a will is valid and meets all the legal requirements of a valid will, it is filed with a probate court or sometimes known as a surrogate court.
Some of the critical elements that will be scrutinized include:
- Sound mind when will was made
Should anyone, usually family members, have any intention to challenge the validity of the will, it must be brought up at this time for contest.
If the will is found to be valid by the court, then the executor is permitted to carry out the instructions and terms stated in it.
Remember, it was mentioned how awful it feel not to have your final wishes be fulfilled?
Well there are mechanisms in place to protect the intentions of the deceased.
State law for example, will attempt to ensure that any property being disposed is of fair market value. This is done by requiring court approval of proposed sales. Sometimes, even by sponsoring open-bidding activities in the courtroom.
But for your own protection, it is best that when preparing a will, that a proper attorney is hired to undertake the necessary process. A will like this is referred to as a formal will.
There will be a lesser likelihood of a will being debunked when a lawyer who knows his stuff had prepared the will according to all the legal requirements.
When a lawyer is not involved, and a will is entirely written by hand, it is known as a holographic will.
Because there are no witnesses, which is a key element of a formal will, not all states recognize a holographic will as legally binding.
Because this form of willing is sometimes shown on television series and movie dramas, some people actually think that a handwritten will is as good as one obtained via a lawyer.
They then do one themselves and expect the law to endorse it. Saving money from legal fees in the process.
This is not the case as not all states recognize it’s validity as mentioned earlier.
When in doubt, it is best to have an attorney help you with this. It is a huge matter after all.
Families have been torn apart because of matters like these. Sometimes even corporations get involved in the act too.
An oral will is a spoken will conducted by a person near death.
Also known as a nuncupative will, the witness being spoken to must put what was said into writing and promptly submit it to probate.
It’s legitimacy will then be determined by the court.
However, oral wills cannot be used to distribute real estate. It can only be used to dispose personal property.
Real estate assets disposal has to go through a proper process of intestate succession.
When an amendment is made or supplement included into an existing will, this is known as a codicil.
This is usually done to add or change instructions on the existing will without having to write up a whole new one to replace the current one.
For a codicil to be valid, it must be signed, dated, and witnessed just like the original will.
It is the only way to amend a will that can be held up in court. Anything else will be thrown out by a judge.
In closing, if you wish for a systematic distribution of your assets after death that minimizes the possibility of loved ones fighting each other for inheritance, it is best to get a will competently done up with the assistance of a qualified attorney with experience in matters like this.