INHERITANCE & SUCCESSION LAW'S IN USA

Succession law in the United States is a not a federal issue, but is instead an area of the private law relegated to states. Because of the impossibility in identifying the number of changes in the fifty jurisdictions that compose the United States, this Report is limited to identifying and discussing the major trends and a few key minor currents occurring in succession laws in America over the last ten years.

Intestate Distribution Schemes

Increasing Role of the Surviving Spouse

Who Qualifies for “Surviving Spouse” Treatment?

Debate has raged in the United States as to who may or may not legally marry. Although the law of successions is on the periphery of this issue, the consequences of the resolution of this issue in family law has direct implication for succession laws. If parties are considered married under the applicable family law of a given state, then such parties may also be entitled to succession rights by virtue of their classification of the relationship as one of marriage.

Traditionally, family law (and thus successions law) has limited marriage to individuals of opposite sexes. As a result, homosexual couples, even those in long-term committed relationships, have been denied characterization as surviving spouses under state succession laws.

In fact, the overwhelming majority of states have recently prohibited same-sex marriage either by enacting state constitutional amendments that preclude same-sex marriage, adopting statutory provisions to do so, or by judicially or legislatively refusing to recognize same-sex marriages entered into in other jurisdictions on the grounds that recognition would violate state public policy.

A vocal minority of states, however, has taken a different approach. In 2003, the Massachusetts Supreme Judicial Council concluded that precluding homosexuals from marrying violated the equal protection clause of the Massachusetts state constitution.

The court gave the legislature one hundred eighty days to respond; the legislature subsequently proposing a constitutional amendment to preclude same-sex marriage, a proposal which must be ratified by the voters in November 2006.6 Because of the legislature’s attempt to thwart the court’s order, effective May 17, 2004, Massachusetts began recognizing same-sex marriages. Massachusetts, however, stands alone in its recognition of same-sex marriage. Thirty-nine other states have explicitly rejected the extension of marriage to same-sex couples and limited the availability of marriage to heterosexuals.

Despite refusal to recognize same-sex marriage, several states have acknowledged that the argument for precluding same-sex marriage does not apply with equal force to the granting of spousal-like inheritance rights to same-sex couples. After all, if the laws of intestacy are intended to mirror and enforce the “presumed will” of the decedent, then the “presumed will” of a decedent formerly in a long-term committed homosexual relationship would likely favor his same-sex partner as the recipient of the bulk of his estate, as would occur within a marriage.

Two additional approaches have been adopted by other states. The first approach, pioneered by Vermont, uses a concept known as a “civil union.” In 1999, the Vermont Supreme Court found that denying homosexuals the right to marry violated the Common Benefits Clause of the state constitution.

The court mandated that the legislature accord these common benefits to same-sex couples; in 2000, the legislature enacted a civil union statute for homosexuals, which, among other things, treats a same-sex partner as a spouse under Vermont inheritance law.10 Undoubtedly concerned that the existence of civil unions would detract from traditional marriages, the Vermont legislation explicitly limits the availability of civil unions to those of the “same sex and therefore excluded from the marriage laws of this state.”11 Registration under Vermont law provides registrants with all the rights and responsibilities that are accorded to spouses, 12 including “descent and distribution [and] intestate successions law.”13 Additionally, in 2005 Connecticut enacted a same-sex civil union statute aimed at providing parties to the civil union “all the same benefits, protections and responsibilities under law, as are granted to spouses in a marriage, which is defined as the union of one man and one woman.”

The second approach has been to create a new institution of “domestic partner registration” or “reciprocal beneficiary registration.” Hawaii, the first state to recognize reciprocal beneficiary status, created the system in response to a decision of the state Supreme Court declaring that limitation of marriage to heterosexuals violated the state constitution.

Rather than allowing homosexual marriage like Massachusetts or enacting a civil union statute like Vermont, the Hawaiian people voted to change their state constitution to limit marriage to heterosexual individuals.16 Recently, California and Maine enacted domestic partnership registration systems, which allow parties to register and receive inheritance rights and others associated with marriage. Arizona currently has a similar bill under consideration.

The exact causes of these changes are debatable, but public attitudes about whom should be a recipient of an intestate share have certainly played a large role. In 1998, an oft-cited study on this topic demonstrated that despite popular sentiment against same-sex marriage, “[a] substantial majority of respondents . . . preferred the partner to take a share of the decedent’s estate.” Moreover, respondents “consistently preferred same-sex and opposite-sex committed couples to be treated the same.”

Rights of the “Surviving Spouse”

Over the last decade, states have taken an increasingly protective role of the surviving spouse through expansion of elective share rights that guarantee a surviving spouse a certain fraction of the decedent’s estate, a testament to the contrary notwithstanding. Although these “elective share” rights are in no sense new, a number of developments have occurred in this area. First, states have begun to realize the importance of providing for financial needy spouses and have thus set a minimum elective share amount, usually $50,000. This minimum amount is the lowest level awardable to a surviving spouse, even in cases in which the decedent’s assets are insufficient to otherwise satisfy the elective share of the surviving spouse.

Secondly, conceptions of what types of property are included in the elective shares of the surviving spouse have increased over time. After 1969, a large number of states realized the need to prevent fraudulent or illusory transfers from a decedent’s estate and to exempt non-probate assets and thus enacted statutes that awarded a surviving spouse a fraction of an “augmented estate,” which included many non-probate assets. Since the mid-1990s, more states have addressed the two problems of over-inclusivity and under-inclusivity of the original concept of the augmented estate. Under-inclusivity existed because significant assets such as insurance, annuities, and pension benefits were excluded from the “augmented estates” and thus property titled in one spouse’s name could still be transferred to excluded assets to frustrate the spouse’s rights. States have dealt with this problem by adopting even broader concepts of the “augmented estate,” which now include insurance, annuity, and pension benefits.

Furthermore, the modern approach also remedies the problem of over-inclusivity, which existed because the fraction-of-the-augmented-estate approach applied to anyone defined as a surviving spouse, both those married for one day and those married for fifty years. Such an approach placed a newlywed with significant assets in a precarious position, whereby a large wealth transfer would be made from one spouse to other on death. To address this problem, the elective share is now calculated by multiplying the augmented estate by a percentage number that gradually increases from 3% during the first year of marriage to 50% for marriages lasting fifteen years or more. This accrual approach moves separate property states more towards an outcome similar to community property states where both spouses share equally in the assets accumulated during marriage, with that total amount increasing as property is acquired over a number of years of marriage. Colorado, Hawaii, Kansas, Minnesota, Montana, South Dakota, and West Virginia adhere to this approach.

At first glance, these changes seem to be minor arithmetical changes, but in actuality the changes are motivated by a substantial alteration in the elective share right. By providing a minimum elective share and a gradually escalating elective share that eventually reaches 50% of the marital property, states have consciously chosen to advance two important theories of marriage: the need-based theory that recognizes a duty of a decedent spouse to provide for his surviving spouse and a partnership theory that recognizes marriage as an “economic partnership to which both spouses contribute productive effort.” Moreover, this increased role of the surviving spouse is largely due to empirical studies suggesting that individuals at death wish their surviving spouses to receive large portions and in many cases the entirety of their succession.

Children and Other Descendants Will studies also indicate this is the preferred disposition of most testators.

As with the surviving spouse, both the role and the definition of children have undergone significant alteration over the course of the last decade.

Who Qualifies as a Child?

In recent years, a demographic trend has emerged allowing children born as a result of assisted reproduction techniques to inherit under state succession laws. Because of new technological reproductive techniques, such as surrogacy, egg donation, and posthumous conception, a new potential exists in which children may be born from mothers who may or may not be genetically linked to the child and even from parents who have died prior to conception. Although techniques of artificial insemination and issues of posthumous birth have existed for some time, technology has placed a new strain on old laws that allowed a child to inherit from a decedent only if he exists at the time of death or is born within 300 days of death of the father.

A series of cases, most notably ones in New Jersey and Massachusetts have held that a child not only born but conceived after death of the father through the use of frozen sperm can be an heir under the intestacy laws of the state. This significantly expands the traditional rule that a child must be in existence at the time of death of the decedent (or at least in utero) to be eligible to inherit.28 States such as Texas, Delaware, Washington, Wyoming, and Colorado have moved away from the traditional limitation on inheritance and now allow posthumously conceived heirs to inherit from deceased parents, as long as the deceased person consented in writing to the posthumous use of his sperm.29 Because of technological advances that allow embryos to be frozen for years, other states also provide for inheritance by posthumously conceived heirs, but specify outside limitations on when birth must occur. Louisiana provides that birth must occur within three years of the decedent’s death.30 Idaho is even stricter, requiring birth to occur within ten months from the death of a decedent.31 In the Idaho legislature’s view, “This will allow estates to have certainty in their administration, including being able to close within a reasonable time.”

Not all states have considered technological advancements in this area as justifications for statutory modification. Florida,33 Georgia,34 and North Dakota have refused to extend their intestacy laws to include special rights for posthumously conceived children. An Arizona court, faced with the same issue as the courts in New Jersey and Massachusetts, refused to create a special exception for posthumously conceived heirs and denied a claim for social security benefits for a child conceived posthumously because the child did not meet the statutory requisite of being “in gestation” at the time of the decedent’s death.

Role of the Child or Descendant

Having observed the expansion of the definition of descendant, the role given to the descendant by modern law must be assessed. As might be expected, the increased share given to the surviving spouse has in some cases come at the expense of the decedent’s children. All states uniformly list children as a primary class in their tables of descent and distribution in the absence of a surviving spouse.

However, when a surviving spouse exists and the surviving children are the children of both the decedent and the surviving spouse, a large number of states award one hundred percent of the intestate estate to the surviving spouse. The shift from a direct award to the children to an indirect award to the children through the surviving spouse was partly driven by the belief that a direct award to minor children would involve unnecessary administrative expenses requiring the appointment of a guardian to administer to his interests. In the case of a surviving spouse whose children are also the children of the decedent, these expenses can be avoided by a direct award to the surviving spouse. This approach indirectly awards the children through the surviving spouse’s fulfillment of his moral and legal duty to care for them.

In contrast, when the decedent has children who are not the children of the surviving spouse, the share awarded to the surviving spouse declines markedly to roughly half the estate plus the first $100,000. This decrease recognizes the possibility that surviving spouses may not minister to the decedent’s children as they would their own. Consequently, the remaining share (approximately one-half of the estate) is awarded directly to the children, and the cost of appointing a guardian is deemed necessary to insure the protection of those children.

The final scenario involves family situations in which there exist both children of the decedent and the surviving spouse, as well as children of the surviving spouse but not of the decedent. In these situations, states are hesitant to award the entire estate to the surviving spouse because this situation presents different issues from those that existed when all descendants were children of the decedent and the surviving spouse. The modern tendency is to award the first $150,000 and half of the remaining estate to the surviving spouse, with remainder being distributed to the decedent’s children. Again, the cost of an administration by a guardian for the children is seen as necessary in this case. Because of the concern that the surviving spouse may use the inheritance to unfairly favor his own children over the children common to the decedent and the surviving spouse, a direct award to the children is proper.

Wills and Issues of Testate Succession

Liberal Application of Formalities; Will Execution

A great degree of liberalization has occurred in the formal requirements for an effective will or testament. The trend is decisively toward enforcement of wills that do not comply with the standard form requirements, if the testator’s intent can be safely ascertained and no fraudulent activity is suspected. The approaches adopted by courts and legislatures for non-complying wills range from employing the idea of harmless error in wills, granting courts a power to “dispense” with noncompliance, utilizing the doctrine of substantial compliance, and imposition of a constructive trust. The burden of proof that these noncomplying wills are sufficient to be admitted to probate rests on the party seeking to probate the noncomplying will.

Prior to 1990, however, this was not the case. Most courts insisted on strict compliance with the formalities necessary for wills, which included a signed document evidencing testamentary intent attested to by witnesses or, if no attesting witnesses were present, a handwritten and signed will.

Since then, legislatures in several states (such as Hawaii, Michigan, Montana, New Jersey, South Dakota, and Utah) have statutorily granted courts a “dispensing power” to excuse errors in the execution of wills, if the document’s proponent can establish the harmless nature of the error by clear and convincing evidence.

Montana courts have applied this power by giving effect to a draft of a will that was signed by the decedent and notarized by his attorney. Despite the absence of witnesses, the court found clear and convincing evidence that the decedent had the requisite testamentary intent. The lack of witnesses was classified as harmless error.

Similarly, courts have excused the absence of one witness’s signature when the will is signed and attested by both another witness and the notary. The exact placement of the signature of the notary, witnesses, and even the testator is likewise an area that no longer requires strict compliance.

Courts have allowed the signatures of the testator and the witnesses to appear on separate pages;

the signature of a testator to appear at the top of the page and that of the witness in the body of the will; and witnesses’ signatures to appear on a separate attached self-proving affidavit.

On the other hand, most states consider both the requirements of a writing and a signature of the testator to be sacrosanct because they, unlike the others, serve to evidence both testamentary intent and insurance against fraud.48 For example, a Louisiana court in Succession of Eddy, invalidated a will in which the dispositive provisions were on the front of a sheet of paper and the signature and attestation on the reverse. The court found this approach to be violative of the statutory requirement that a testator sign each page of his testament.

Tension Between Testamentary Freedom and Family Care

In addition to the liberalized forms in which testators may express their intent, states grant individuals almost unrestricted authority to dispose all of their property. For the last several decades, a notable number of scholars have advocated a limitation on testamentary freedom that provides for the protection of and provision for children of a testator.50 America, however, has endorsed a type of testamentary freedom that is more extensive than almost any other country. Scholars have noted that one of the odd characteristics of American testamentary freedom is that although parents maintain alimentary obligations to support children while they are alive, these same duties, even if recognized in child support awards granted by courts, are ordinarily unenforceable against a parent’s estate after he dies.

Emphasis toward Testamentary Freedom

Forced Heirship

The response from the courts and the legislatures has seemingly been an overwhelmingly negative one. First, in 1996, Louisiana, the only state in the United States to recognize a concept of forced heirship, moved away from its traditional history and toward an American-style freedom of testation. Prior to 1996, all children were considered forced heirs of a deceased parent and were accordingly entitled to a certain share or fraction of the estate and could only be disinherited for one of twelve particular “just cause[s].”

In re Estate of Brannon, 441 S.E.2d 248 (Ga. 1994). Since 1996, however, Louisiana’s version of forced heirship has been scaled back significantly and now guarantees a forced share only to those children twenty-three years old or younger and those who are permanently incapable of taking care of their person or administering their estate.

Negative Wills

Thus, the rationale for forced heirship has changed from one guaranteeing all children a part of the familial wealth to an alimentary one emphasizing testamentary freedom and guaranteeing a fraction or share of the estate only to those who threaten to become a financial burden on the state as a result of an infirmity-be it a physical one, a mental one, or one of minority.

Even outside of Louisiana, a number of courts and legislatures have adopted means to advance the cause of testamentary freedom, such as recognition of negative wills by a testator. Negative wills are provisions in a testament or will that affirmatively disinherit a legatee from receiving anything. While succession laws in the United States have generally allowed testators total discretion to disinherit anyone else, a problem arises when the party disinherited is an intestate heir and the will disinheriting the legatee does not dispose of the testator’s entire estate. In such a situation, courts have traditionally held that the part of the estate not disposed of by the will passes to the heirs in intestacy-including the disinherited heir.

Courts have recently begun to allow the use of negative wills, effectively allowing any property undisposed of by a will to pass to the intestate heirs of the testator with the exclusion of the disinherited heir.

Since the 1990s, thirteen states have enacted statutes allowing the use of negative wills.56 By way of limitation on the doctrine, however, courts have interpreted negative will statues to allow disinheritance of heirs only if there are other heirs available to succeed to the property of the decedent and thus precluding the state from claiming the estate escheats to it. Although the recognition of this doctrine is increasing, a small minority of states have addressed this issue recently in court decisions and explicitly rejected it.

Movement Away from Testamentary Freedom

In response to the increasing emphasis on testamentary freedom, the law has begun to accommodate an increasing number of will contests and claims for undue influence. If testamentary freedom is unfettered, will contests and claims of undue influence become the only effective ways to ensure competent testamentary intent, to fulfill familial obligations, and to protect against a testator’s poor judgment. As one scholar has noted, “although courts steadfastly proclaim their adherence to the concept of testamentary freedom, their reasoning quite often betrays a primary loyalty to other competing principles:

first, testators have a duty premised on moral obligation to distribute their estate to family members; second, testators need protection from their own . . . immoral instincts.”

No Contest Clauses

One way in which disappointed heirs are protected against the unbridled discretion of a testator is through the ability to initiate a will contest-even sometimes in the presence of a testamentary provision forbidding such a challenge. That is, despite the existence of no contest or in terrorem clauses, most courts have allowed maximum flexibility to potential beneficiaries and have construed the ambit and force of such clauses often very strictly. An increasing number of states allow beneficiaries to challenge a will, in spite of an in terrorem clause, if there is “probable cause” to believe the will is invalid60 and the challenger does so in “good faith.” Attempts by a testator in a will to preclude such good faith challenges for which probable cause exists are usually ineffective. Some courts have allowed a potential beneficiary to seek construction of the clause to determine its breadth and applicability without invoking its punitive effect. Other courts have permitted the filing of suits to remove co-executor and to ascertain the correctness of a particular distribution of property again, without invoking the punitive nature of an in terrorem or no-contest clause of a will.

Undue Influence

The second mode of protection for excluded heirs is the ability to raise a claim for undue influence. Undue influence is generally defined as the exercise of such influence over the donor as to overcome the donor’s free will and cause him to make a transfer he would not have otherwise made. Some courts hold that “undue influence” is presumed in the context of certain confidential relationships and can only be rebutted upon proof that the influencing party acted in “good faith” and the testator acted “freely, intelligently, and voluntarily.”

A minority of courts also have recently found that when the circumstances surrounding the execution of a will are suspicious, a presumption of undue influence arises. The situation is often characterized as a burden shifting one. If a testator was of weakened intellect or the drafter of the will maintained a confidential relationship with the beneficiary who receives a substantial benefit under the will, the burden to rebut undue influence shifts to the party seeking to probate the will.

This concept has become more prevalently used in recent years69 and has been expanded from the basic idea of influencing a testator to make testamentary dispositions in one’s favor. Courts now recognize that one can influence a testator in favor of another party with whom the influencer is closely aligned. For example, undue influence can result from a confidential relationship between a testator and a church pastor who unduly influences a congregant to bequeath the bulk of her estate to the church.70 As a matter of law, one court has held that in the marital context, the activities of one spouse, although not himself in a confidential relationship with the testator, will be imputed to the other spouse who maintains such a relationship with the testator. This allows a claim of undue influence against one spouse if the other maintains the confidential relationship with the testator.

Construction and Interpretation of Wills

In order to effectuate testamentary intent, courts have recently begun interpreting and construing the language of wills liberally. Aside from the basic rule that extrinsic evidence can be admitted to clarify an ambiguity or contradiction, some courts have allowed evidence of a drafting error to show a testamentary intent contrary to the indication of otherwise clear language. Moreover, others courts have similarly interpreted clear testaments loosely to achieve the desired result of the testator. For example, in Estate of Peterson v. Peterson, a North Dakota court held that, despite a provision in a will directing the residue of an estate to be divided equally among nine beneficiaries, the residue should be divided unequally to effectuate testamentary intent and to offset the inability to divide equally certain non-probate accounts. This loosened approach to interpretation, however, does not mean that all courts will admit extrinsic evidence to vary the contents of a will in the absence of any discrepancy. Idle suggestions of a testator’s mistake are insufficient to vary testamentary language, as are contentions contrary to testamentary provision that are unsupported by language in a will and unsupported by extrinsic evidence.

Probate

Probate is the formal legal process that gives recognition to a will and appoints the executor or personal representative who will administer the estate and distribute assets to the intended beneficiaries. The laws of each state vary, so it is a good idea to consult an attorney to determine whether a probate proceeding is necessary, whether the fiduciary must be bonded (a requirement that is often waived in the will) and what reports must be prepared. Most probate proceedings are neither expensive nor prolonged, which is contrary to the claims of many vendors selling living trust and other products.

The basic job of administration and accounting for assets must be done whether the estate is handled by an executor in probate or whether probate is avoided because all assets were transferred to a living trust during lifetime or jointly owned. Many states have simplified or streamlined their probate processes over the years. In such states, there is now less reason to use probate avoidance techniques unless there are other valid reasons to continue to minimize probate. In planning your estate, more important than minimizing probate is minimizing the real issues that can make probate difficult, such as lawsuits by heirs.

Should You Avoid Probate?

The living trust is often marketed as a vehicle that allows you to "avoid probate" upon your death. Probate is the court-supervised process of administering your estate and transferring your property at death pursuant to the terms of your will. Probate is rarely the calamity naysayers claim. In addition, many types of property routinely pass outside of the probate process, even without the cost of establishing a living trust. Such property includes life insurance or retirement plan proceeds, which pass to a named beneficiary by designation rather than pursuant to your will, and real estate or bank or brokerage accounts held in joint names with right of survivorship.

While it is true that the property passing under the terms of a living trust upon your death will "avoid probate," it should be noted that there may or may not be actual value in that result. Probate laws are different in every state. In some states there are statutorily mandated court or attorney fees while in others those fees may be minimal. Many states have expedited or simplified court proceedings that are efficient and inexpensive for small or simple estates. A properly drafted will in many states can eliminate some of the steps otherwise required in the probate proceedings. In addition, much of the delay and red tape customarily associated with probate is a result of tax laws and tax filing requirements, which cannot be eliminated through a living trust and the avoidance of probate. Finally, a living trust can almost never totally avoid probate, and a simple will is needed to "pour over" to the trust any property that has not been transferred to the trust during your lifetime.

Property that passes at death through a revocable living trust must be transferred to the trust, administered by a trustee who may or may not charge fees, and then transferred out of the trust to the beneficiaries. There may be other costs, such as real estate transfer taxes or fees, depending upon the jurisdiction. The costs associated with these steps and the costs associated with tax filings are often ignored by living trust marketers. A comparison of the costs of probate and those of a living trust should be made on a case by case basis.

Living trusts, in fact, have great value as part of estate planning, but not necessarily to avoid probate. A living trust, if properly prepared and administered, can be a very effective tool to manage assets in the event of illness, disability or the effects of aging. In light of the aging population, the use of living trusts to minimize the risk of elder financial abuse and address similar issues, should be an important consideration in an estate plan.

How Does the Probate Process Vary From State to State?

As the probate court is controlled by state law, the procedures for probate will differ from state to state. For example, California and Ohio probate procedures are quite complex, whereas Texas probate law is simpler. However, 20 states have adopted the Uniform Probate Court.

Many states permit a simplified process for smaller estates. For example, after 2012, California requires probate for estates that exceed $150,000. In Texas probate is not required for estates valued at $50,000. When probate process is skipped, an inheritor usually uses an affidavit signed under oath as well as the decedent’s death certificate to claim estate assets.

Below is a state-to-state summary of estates that may not require the full probate process.

State	Estate Value (When Full Probate is Not Required)	Assets That Influence Estate Value for Probate Purposes.
Alabama	$3,000 or less	The estate value doesn’t include real estate
Alaska	$15,000 or less	The estate value is calculated after accounting for liens and encumbrances
Arizona	$50,000 or less (for personal property); OR $75,000 or less (for real estate)	After accounting for liens and encumbrances. If based on real property, must pay all taxes and debts.
Arkansas	$50,000 or less (all property) for a simplified probate process; OR Personal property to which a widow or minor child are entitled free of debt.	All property is valued after encumbrances are netted, and excluding homestead and statutory allowances.
California	$150,000 or less for the entire estate (to either skip probate or use a simplified process); OR $50,000 or less (for real property).	For $150,000 cap, the estate’s value may not include: life insurance, property to which surviving spouse or joint tenant is entitled, out-of-state real estate, etc.
Colorado	$60,000 or less (to skip probate); OR Estate’s value is no more than decedent’s personal property (using simplified process)	After netting out liens and encumbrances. Again certain exclusions are made, such as administration expenses, family allowances, etc.
Connecticut	$40,000 or less (for a simplified probate process)	Estate shouldn’t include real estate, unless in survivorship.
Delaware	$20,000 or less	Estate should not include real estate. Excluded are property owned jointly as well as property that doesn’t pass through probate.
District of Columbia (D.C.)	$40,000 or less (simplified process) ; OR Decedent owned only 1 or 2 motor vehicles (skip probate)	Property over which D.C. has jurisdiction to administer it is considered.
Florida	Estate’s property exempt from creditor’s claims (skipping probate option); OR Entire estate minus property exempted from claims of creditors equals to $75,000 or less; OR Decedent had been dead for more than 2 years.	Estate doesn’t include real estate (skipping probate option). Also, some creditors’ claims may apply to medical and funeral costs.
Georgia	No full probate required if: (i) no will, (ii) no debts owed, AND (iii) property is not contested by heirs who agreed upon how it will be distributed.	There must be no contests among heirs. They must agree on how property is to be divided.
Hawaii	$100,000 or less (may skip probate or use a simplified procedure)	This valuation applies to property the decedent owned in Hawaii.
Idaho	$100,000 or less (skipping probate); OR Value of all property doesn’t exceed certain allowances, costs, expenses, and exempt property (use simplified process); OR When all property is inherited by surviving spouse (use simplified process)	After liens and encumbrances are netted out. Also, property may be located out-of-state (skipping probate option) Again liens and encumbrances have to be subtracted (for simplified process). Cost may include medical costs and funeral expenses; allowances may be family and homestead-related, etc. (for simplified process)
Illinois	$100,000 or less (skip probate or use simplified process)	Estate is valued at gross value rather than fair market value, excluding real estate (skip probate). Consent from inheritors and beneficiaries is required (for simplified process).
Indiana	$50,000 or less (skip probate or use simplified process)	Estate valued at gross value, less liens and encumbrances (skip probate). Administrative and funeral costs are implicated (for use of simplified procedure).
Iowa	$25,000 or less (skip probate); OR $100,000 or less (use simplified process)	Estate should not include real estate (skip probate) In general, estate’s valuation should be based on the gross value
Kansas	$20,000 or less (skip probate); OR Court may approve simplified process based on various factors.	For simplified process, a court may consider such factors as estate’s value and inheritors’ interests.
Kentucky	Estate’s value is $15,000 or less (no personal property passed by will and decedent survived by a spouse; OR Third party paid $15,000 or more in proffered claims (no surviving spouse).	Both options allow for a simplified process associated with small estates.
Maine	$20,000 or less (no probate); OR Estate’s value doesn’t exceed certain allowances, costs, expenses, and exempt property (use simplified procedure).	Liens and encumbrances are to be subtracted for both options. Estate may be located out-of-state (for no probate option). Allowances are family and homestead-related. Costs may be related to medical, funeral, and administrative expenses.
Maryland	$30,000 or less (subject to probate in the state); OR $50,000 or less (if the only beneficiary is a surviving spouse)	Both options allow for a simplified process associated with small estates.
Massachusetts	$25,000 or less; OR Estate’s value doesn’t exceed certain allowances, costs, expenses, and exempt property (use simplified procedure).	Liens and encumbrances should be taken out (for simplified process). Allowances are family and homestead-related. Costs may be related to medical, funeral, and administrative expenses (for simplified process).
Michigan	$15,000 or less (skip probate); OR After paying funeral costs, estate is $15,000 or less (simplified procedure) OR Estate’s value doesn’t exceed certain allowances, costs, expenses, and exempt property (use simplified procedure).	No real estate can be included in the estate. Liens and encumbrances must be subtracted from the estate’s value to skip probate. Allowances are family and homestead-related. Costs may be related to medical, funeral, and administrative expenses (for simplified process). Liens and encumbrances must be subtracted (when estate’s value is compared with allowances, costs, expenses, etc).
Minnesota	$20,000 or less (skip probate); OR If in the judgment of the court there are no creditors’ claims (use simplified process).	Estate doesn’t have to be in-state; less liens and encumbrances (skip probate option). If exempted or set aside for spouse or children, creditors won’t be able to claim (for simplified process).
Mississippi	For bank accounts of $12,500 or less (skip probate) OR Estate is $500 or less (simplified process)	A claimant for bank account becomes responsible for decedent’s debts to the extent of his withdrawal form the bank account (skipping probate).
Missouri	$40,000 or less (simplified process).	Liens and encumbrances must be subtracted.
Montana	$50,000 or less (skip probate); OR Estate’s value doesn’t exceed certain allowances, costs, expenses, and exempt property (use simplified procedure).	To skip probate, liens and encumbrances must first be subtracted from the estate’s value. Estate may not be located in-state (skip probate). Allowances are family and homestead-related. Costs may be related to medical, funeral, and administrative expenses (for simplified process).
Nebraska	Personal property $50,000 or less (to skip probate); OR State’s real estate $30,000 or less (skip probate). Estate’s value doesn’t exceed certain allowances, costs, expenses, and exempt property (use simplified procedure).	To skip probate, liens and encumbrances must be subtracted from the estate’s value. Personal property may be out-of-state. Allowances are family and homestead-related. Costs may be related to medical, funeral, and administrative expenses (for simplified process).
Nevada	$20,000 or less (skip probate); OR Gross of $200,000 or less, providing court approves; or $100,000 or less encumbrances (use simplified process).	The estate value must be based on gross value of in-state property, providing there’s no in-state real estate. Also, procedure may be used only by certain surviving relatives. Court may make property set asides (simplified process).
New Hampshire	Will naming spouse or only child sole beneficiary, or if no will there’s a sole heir (simplified process).	Sole heir or beneficiary to be appointed as an administrator, and court has to approve(simplified process).
New Jersey	$20,000 or less for surviving spouse / domestic partner, or $10,000 or less, if none (skip probate)	Deceased must have left no will. Value of all property is considered. For estate values of $10,000 or less, the heir can receive all property, providing others agree.
New Mexico	Tax value of principal residence is $500,000 or less, or whole estate is $50,000 or less (skip probate); OR Estate’s value doesn’t exceed certain allowances, costs, expenses, and exempt property (use simplified procedure).	If the whole estate is valued, liens and encumbrances must be subtracted first. Also, property doesn’t have to be in-state (skipping probate). Allowances are family and homestead-related. Costs may be related to medical, funeral, and administrative expenses (for simplified process).
New York	Gross value $20,000 or less (simplified process).	Real estate and property set aside for decedent’s family survivors are not counted into the estate’s gross value.
North Carolina	Personal property $20,000 or less, or $30,000 or less, if sole surviving spouse as heir is left (skip probate); OR if surviving spouse inherits entire estate (simplified process).	For real property, probate can’t be skipped altogether. Liens and encumbrances must be subtracted from the value of personal property.
North Dakota	$50,000 or less (skip probate); OR Estate’s value doesn’t exceed certain allowances, costs, expenses, and exempt property (use simplified procedure).	Entire estate is valued, minus liens and encumbrances (skip probate).  Allowances are family and homestead-related. Costs may be related to medical, funeral, and administrative expenses (for simplified process).
Ohio	$35,000 or less; or $100,000 or less, if surviving spouse inherits the entire estate (simplified process).	Surviving spouse may inherit under will or by intestacy laws (simplified process).
Oklahoma	$20,000 or less (skip probate); OR  $175,000 ($200,000 as of 2013) or less; or if deceased is dead for more than 5 years, or if death occurred when resided in another state (simplified procedure).	The market value of the in-state estate is assessed, minus liens and encumbrances (skip probate).
Oregon	Fair market value is $275,000 or less; OR Personal property of $75,000 or less, AND real estate is $200,000 or less (simplified process).
Pennsylvania	$25,000 or less (simplified process).  $3,500 may be released by a bank to decedent’s family survivors (skip probate)	In-state property is considered, not counting real estate and certain costs (simplified process). Death certificate and proof of payment for funeral must be demonstrated (skip probate).
Rhode Island	$15,000 or less (simplified process)	To use a simplified process, the estate shouldn’t include real property.
South Carolina	$10,000 or less (skip probate); OR $10,000 or less (simplified process).	Liens and encumbrances must be subtracted before skipping probate. Certain expenses (i.e., funeral) and exempted property may not count towards estate value (simplified process).
South Dakota	$50,000 or less (skip probate) Simplified procedure may be used for estates of different value.	The entire estate is considered, minus liens and encumbrances (skip probate).
Tennessee	$25,000 or less (simplified process).	Real estate, as well as property in joint ownership with right of survivorship, is not counted in the estate’s value (simplified process).
Texas	$50,000 or less (skip probate); OR Value is not more than family allowances and some debt payments (simplified process). OR If will requests so or all inheritors agree (simplified process).	The decedent must not have made a will. The whole of estate is valued, except for the homestead and exempt property (skip probate).
Utah	$100,000 or less (skip probate);  OR Estate’s value doesn’t exceed certain allowances, costs, expenses, and exempt property (for simplified process).	The entire estate is considered, minus liens and encumbrances to skip probate. Further, certain vehicles and boats may be transferred too (skip probate).  Allowances are family and homestead-related. Costs may be related to medical, funeral, and administrative expenses (for simplified process).
Vermont	$10,000 or less (for simplified process).	To use a simplified process, the estate shouldn’t include real estate.
Virginia	Personal property $50,000 or less (skip probate).	If decedent had no will, real property may be claimed by an affidavit.
Washington	$100,000 or less (skip probate); OR Solvent estates (simplified process).	Liens and encumbrances must be subtracted from the estate’s value. Community property interest is also not counted toward the estate’s value (skip probate). A will must name an executor requesting a simplified process. Or, if there is no will, another survivor may request under certain conditions.
West Virginia	$100,000 or less; or if executor or surviving spouse is the sole beneficiary; OR If no disputes among beneficiaries, there’s enough assets, AND executor agrees (simplified process).	Estate shouldn’t include real property (simplified process).
Wisconsin	$50,000 or less (skip probate).  OR $50,000 or less, and survivors are minor children or spouse (simplified process) OR Estate’s value doesn’t exceed certain allowances, costs, expenses, and exempt property (for simplified process).	In-state property must have been solely owned by the decedent (skip probate). Liens and encumbrances must be subtracted from the estate’s value (simplified process).
Wyoming	$200,000 or less (skip probate); OR $200,000 or less (simplified process)	The entire estate is valued, minus liens and encumbrances (skip probate).

Post-Execution Events Affecting Wills

In accord with the liberal methods of interpretation employed to achieve a testator’s intent, courts have also applied similar rationales when addressing events that occur after the execution of a will and which ordinarily can effect testamentary devises.

Ademption

The doctrine of ademption holds that if property left by legacy is not in the testator’s estate at his death, the legacy fails. Courts and legislatures have slowly begun to move away from the “identity” theory, under which ignores the testator’s intent is ignored and a legacy fails if the property is not found in the testator’s estate, and towards the “intent” theory, under which a legacy fails in the absence of the property in the testator’s estate, unless it can be shown that such would be contrary to the testator’s intent.

Many states now prevent legacies from adeeming and allow substituted or replacement property acquired by the decedent and still in the estate to form the object of the legacy, even though the original object of the legacy no longer forms a part of the decedent’s estate.

In addition, court cases in several states demonstrate a judicial desire to allow testamentary intent to govern over the strict formalities of a situation. For instance, in In re Will of Redditt, a court held that the sale of a family farm in return for stock in a family corporation did not cause an ademption because the transfer was only one of form.

Anti-Lapse

Antilapse statutes, which redirect legacies to certain specified individuals in the event that the original legatee predeceases the testator, 81 also have undergone some recent modification. Since the rules on when a legacy lapses and accretes to another are modeled on the presumed intent of a testator, courts tend to require a clear indication either in a will or through proof by extrinsic evidence of a testator’s intent to deviate from the statutory scheme before it displaces operation of the antilapse statutes.

For instance, merely leaving the residue of the estate to named individuals “to the express exclusion of any other person or persons” does not override the anti-lapse statute nor does basic language in a will indicating that two heirs were to receive a legacy “share and share alike.”84 On the other hand, specific provisions in wills that “all lapsed legacies and devises” accrue to the residuary legatee or that the legacy is to be distributed only to members of a class who are “living” or “equally share and share alike … or to the survivors thereof”

Non-Succession Law Matters

Finally, a number of other changes in the laws outside of the succession context have significantly affected the way in which wealth is transmitted at death. Because of space constraints, only one can be briefly discussed.

The Rule Against Perpetuities

Both in and out of trusts (but primarily in), states have recently made it easier for individuals to leave property to succeeding generations, even those not yet in being. Previously, the rule against perpetuities established the outside limit on how long a “dead hand” could control the distribution of property. In classic formulation, the rule was cryptically expressed in the following manner: “No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.”

Although about twenty states have adopted a 90 year wait-and-see period as the measuring time under the Rule Against Perpetuities (RAP), The two-fold purpose is to prevent dead-hand control of property and to prevent decedents from keeping property out of commerce.

over approximately the last twenty years, almost one-half of all the states have abolished or severely limited the application of the RAP90 in one form or another. This movement has taken many forms and has only increased over the last ten years. Some states have abolished the rule outright. Other states have abolished it only for property held in trust. Still other states have extended the measuring time to 360 or 1000 years, effectively abolishing the RAP, but without doing so explicitly. Finally, some states have allowed trust settlors to opt out of the RAP and thus apply it only in the absence of a statement to that effect. Thus, in the words of one scholar, “[T]he common law Rule Against Perpetuities is going the way of the dinosaur in a number of American jurisdictions.”

Other Matters

Significant changes have also occurred in trust law, tax law, tort law, and federal pension law. Trust law now provides trustees with greater flexibility in trust asset management by allowing them to maximize total return for the trust and granting them the authority to adjust between principal and income between beneficiaries. In addition, the recent revision to the estate tax law has created an enormous impact in successions law and a new ability of decedents to pass on increasingly large amounts of wealth tax free.

Lastly, state tort law governing attorney malpractice now frequently allows suits by beneficiaries or potential beneficiaries who are not clients of the negligent lawyer.

Comparative Legal Analysis

All of these changes are outside the pure succession context but have fundamentally altered the way in which wealth is transmitted at death.

Most of the changes or trends in modern succession laws have not resulted from comparative legal analysis of other systems and jurisdictions outside the United States. Many changes respond to pre-existing modern societal practices while others respond to changes in the composition of the society governed by those laws. Several intestate law alterations appropriately illustrate this explanation. For example, the increased share left to the surviving spouse was adopted in response to empirical surveys about the intent of ordinary individuals and the existing practice among testators. In 1978, the American Bar Foundation sponsored a study on the public attitudes about property distribution at death. The study concluded that “based on the findings of this study and prior studies,… a modern intestacy statute should provide [that]…the surviving spouse inherit the entire estate in preference to the decedent’s children who are also natural or adopted children of the spouse.”

Similarly, the increased distinctions made regarding the portion left to children who either are or are not children of the decedent and the surviving spouse are the result, at least in part, of the “advent of the multiple-marriage society, resulting in a significant fraction of the population being married more than once and having stepchildren and children by previous marriages ...”

Moreover, the revisions to the surviving spouse’s elective share result from the recognition of the “contemporary view of marriage as an economic partnership,” whereby the gains and loses of marriage are shared equally by both spouses.

The idea of “keeping apace with modern societal developments and expectations” has been a strong force in the revisions of modern intestacy law, and has prompted a leading scholar in this area to call for further revision of the elective share system to create a “more direct form …[of the] approximation system, one that would make the system more transparent and therefore more understandable.”102 See Employee Retirement Income Security Act of 1974, Still other changes, such as the increased extension of intestacy laws to children of assisted reproduction, correspond to the ever changing technology that pervades society.

Some scholarship on comparative intestacy law, however, has begun to emerge. In a recent law review article, Professor Lawrence Waggoner has argued for a draft intestacy statute that would allow domestic partners to share in the intestate estate of another partner in a manner similar to spouses.103 In doing so, Professor Waggoner candidly admits that in fashioning the model statute, “I have drawn upon a similar proposal put forward by the Queensland Law Reform Commission” which provided a definition of “de facto partner” granting inheritance rights to person, who, among other things, “lived with the intestate as a member of a couple on a genuine domestic basis for a period of … at least 5 years.”104 In addition, Professor Waggoner admits to drawing on recent scholarship in this area on Swedish law, which not only explained the recent Swedish law granting limited inheritance rights to same-sex partners, but which also sought to highlight similarities in Swedish and America culture for purposes of assessing the susceptibility of American law to a limited reception of Swedish legal concepts.105 American law has also been informed by scholarship on the recent Property (Relationships) Act in New Zealand, which accords unmarried couples to the “same property division regimes as married couples.”

Comparative legal scholarship has also had a significant influence in the area of testaments, specifically in regard to the “dispensing power” granted to courts to excuse harmless error regarding the formalities for executing, revoking, or modifying wills. This change arose at the impetus of Professor John Langbein. In the 1970s, Professor Langbein advocated that only “substantial compliance” with the will formalities should be required. His advocacy, however, received a cool reception from courts and legislatures, causing him to revise his approach. In 1987, Professor Langbein published an article entitled, Excusing Harmless Errors in the Execution of Wills: A Report on Australia's Tranquil Revolution in Probate Law. This article examined recent changes in Australian law regarding a court’s authority to dispense with will formalities and surveyed ten years of court experiences with the new “dispensing power.” After modifying the standard of proof required to demonstrate that a decedent intended a document to serve as his will, Professor Langbein advocated that American courts reduce their reliance on will formalities as well.

Langbein’s work influenced the drafters of the Uniform Probate Code (a model legislative proposal) and the Restatement of Wills and Other Donative Transfers to adopt this approach.

Although the above analysis illustrates a successful application of comparative law in the United States, the fate of the discipline in the succession context has not always been so grand. As discussed above, there has been an ongoing tension between the competing values of testamentary freedom and fulfillment of familial obligations. Without much success, academics have advocated change to a European-type system or at least to a system in which testamentary freedom is tempered with the responsibilities of familial obligations.

Despite the admonition that “the American parent’s ability to disinherit his children is unimaginable to most people of the world,”110 the cause of testamentary freedom has marched on and, indeed, marched further, with Louisiana-a state with a strong civilian heritage-all but abandoning its civilian style of forced heirship.111 This movement toward an American-style unrestrained testamentary freedom has led a new group of scholars to examine the feasibility of adopting a concept of the French notaire, partially in an effort to help reign in otherwise open-ended litigation regarding a testator’s capacity and claims of undue influence.

Rights of Women In Property

Women's property rights are property and inheritance rights enjoyed by women as a category within society at any point in time. The patterns and rights of property ownership vary between societies and are influenced by cultural, racial, political, and legal factors. The lack of control over both productive and non-productive resources that is apparent in both rural and urban settings places women at a reduced level of advantage in areas of security of home, maintaining a basis for survival, and accessing economic opportunities. Development-related problems faced across the globe have been increasingly linked to women's lack of property and inheritance rights, especially in regard to land and property ownership, encompassing areas such as low levels of education, hunger, and poor health.[6] Thus land property rights, through their impact on patterns of production, distribution of wealth, as well as market development, has evolved as one of the prerequisites of economic growth and poverty reduction.

Before married women's property acts were passed, upon marriage a woman lost any right to control property that was hers prior to the marriage, nor did she have rights to acquire any property during marriage. A married woman could not make contracts, keep or control her own wages or any rents, transfer property, sell property or bring any lawsuit.

For many women's rights advocates, women's property law reform was connected to suffrage demands, but there were supporters of women's property rights who did not support women gaining the vote.

Married women's property law was related to the legal doctrine of separate use: under marriage, when a wife lost her legal existence, she could not separately use property, and her husband controlled the property. Although married women's property acts, like that of New York in 1848, did not remove all the legal impediments to a married woman's separate existence, these laws did make it possible for a married woman to have "separate use" of property she brought into marriage and property she acquired or inherited during marriage.

The New York effort to reform women's property laws began in 1836 when Ernestine Rose and Paulina Wright Davis began to gather signatures on petitions. In 1837, Thomas Herttell, a New York city judge, attempted to pass in the New York Assembly a bill to give married women more property rights. Elizabeth Cady Stanton in 1843 lobbied legislators to pass a bill. A state constitutional convention in 1846 passed a reform of women's property rights, but three days after voting for it, the delegates to the conventions reversed their position. Many men supported the law because it would protect men's property from creditors.

The issue of women owning property was linked, for many activists, with the legal status of women where women were treated as the property of their husbands. When the authors of the History of Woman Suffrage summarized the New York battle for the 1848 statue, they described the effect as "to emancipate wives from the slavery of the old common law of England, and to secure to them equal property rights."

Before 1848, a few laws were passed in some states in the U.S. giving women some limited property rights, but the 1848 law was more comprehensive. It was amended to include even more rights in 1860; later, married women's rights to control property were extended still more.

The first section gave a married woman control over real property (real estate, for instance) she brought into the marriage, including the right to rents and other profits from that property. The husband had, before this act, the ability to dispose of the property or use it or its income to pay for his debts. Under the new law, he was not able to do that, and she would continue her rights as if she had not married.

The second section dealt with the personal property of married women, and any real property other than she brought in during marriage. These too, were under her control, although unlike real property she brought into the marriage, it could be taken to pay debts of her husband.

The third section dealt with gifts and inheritances given to a married woman by anyone other than her husband. Like property she brought into the marriage, this also was to be under her sole control, and like that property but unlike other property acquired during marriage, it could not be required to settle her husband's debts.

Note that these acts didn't completely free a married woman from economic control of her husband, but it did remove major blocks to her own economic choices.

The 1848 New York Statute known as the Married Women's Property Act, as amended in 1849, reads in full:

An act for the more effectual protection of the property of married women:

1. The real property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents, issues, and profits thereof, shall not be subject to the sole disposal of her husband, nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female.

2. The real and personal property, and the rents, issues, and profits thereof, of any female now married, shall not be subject to the disposal of her husband; but shall be her sole and separate property, as if she were a single female, except so far as the same may be liable for the debts of her husband heretofore contracted.

3. Any married female may take by inheritance, or by gift, grant, devise, or bequest, from any person other than her husband, and hold to her sole and separate use, and convey and devise real and personal property, and any interest or estate therein, and the rents, issues, and profits thereof, in the same manner and with like effect as if she were unmarried, and the same shall not be subject to the disposal of her husband nor be liable for his debts.

Impact of Economic Integration

Thus far, there is no legislative development in this direction, but only time will prove determinative.

Given the purview of succession law in the United States vis-à-vis that of most of the rest of the world, it would be true, but misleading, to state that there is not a movement towards drafting supra-national laws of succession in the United States. This statement is true in that there has been little initiative to harmonize American succession law with the laws of Europe, South America, Africa, or any other countries. At the same time, this statement is misleading because, as mentioned above, succession law is not a primary concern of national or federal law. Instead, it is within the domain of each of the fifty American states. To the extent a parallel can be drawn between American states and European countries, a supra-national (or the in the case of the United States, a supra-state) succession law has begun to emerge.

As has been observed, however, this cause of unification is only a feasible goal when cultural and economic integration already exists. To that extent, economic integration of the fifty state economies into one American economy has served as the foundation upon which two further unification projects, the Uniform Probate Code and Restatement of Wills and Other Donative Transfers, have built. Although the goals of these two projects are similar, their approaches are different. First, the Uniform Probate Code (and other uniform acts and laws) is produced by a specially formed committee from the National Conference of Commissioners on Uniform State Laws (NCCUSL). The NCCUSL is a non-profit organization composed of commissioners sent from every state who meet for a sole purpose “-to study and review the law of the states to determine which areas of law should be uniform. The commissioners promote the principle of uniformity by drafting and proposing specific statutes in areas of the law where uniformity between the states is desirable.” The job of the NCCUSL, however, is strictly an unofficial advisory one. The proposed uniform “laws” or “codes” constructed by the NCCUSL have no effect until they are enacted by a state legislature.

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