DOCSLIB.ORG

“NEW” ELECTIVE Share – a Case in Point!

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
“NEW” ELECTIVE Share – a Case in Point! SPOUSAL & FAMILY ENTITLEMENTS Debra L. Boje, Esquire Gunster Tampa, Florida 33602 FACT PATTERN STEP 1 DETERMINE THE PROPERTY ENTERING INTO THE ELECTIVE ESTATE UNDER THE GENERAL INCLUSION PROVISIONS §732.2035 The Decedent’s Probate Estate -- §732.2035(1) All property wherever located subject to administration in any state or District of Columbia. Broadly defined Includes real property in other states subject to administration Value: FMV on date of death less (i) claims paid or payable from probate estate (ii) mortgage, liens, and security interests. NOTE: Administrative expenses not deducted. FMV Claims/Liabilities Net Sailboat $ 100,000 $ 25,000 $ 75,000 Maine Home 250,000 250,000 Automobile* 50,000 50,000 Furniture/Furnishings* 35,000 35,000 Medical 10,000 (10,000) Funeral 40,000 (40,000) Total $360,000.00 NEW JULY 1, 2017 Protected Homestead -- §732.2035(2) Decedent's interest in “protected homestead” Tenancy by Entirety is not protected homestead. Value of Decedent’s interest depends on the interest the surviving spouse receives. Value of Decedent Interest If the surviving spouse receives the decedent’s entire interest in the protected homestead, 100% of the value is included in both determining and satisfying the elective estate. If the surviving spouse receives a life estate or elects a one half interest in the protected homestead, then 50% of the value is included in determine the elective estate and in satisfying the elective share. 7 EXAMPLE (if this was “protected homestead”) Decedent owns 100% of homestead (FMV 400,000; Mortgage $150,000) and spouse received 100% Elective Estate without homestead $2,750,000 Value of homestead included $ 250,000 Elective Estate $3,000,000 30% Elective Share $ 900,000 Value of homestead toward satisfaction $ 250,000 Balance owed $ 650,000 8 Surviving spouse receives life estate or elects ½ interest Elective Estate without homestead $3,000,000 50% of value of homestead $ 125,000 Elective Estate $2,875,000 30% Elective Share $ 862,500 50% of value of homestead $ 125,000 Balance owed $ 737,500 9 Accounts or Securities Registered as POD, TOD and ITF Accounts or Jointly with Rights of Survivorship -- §732.2035(3) Decedent's “ownership interest” is included Tenancy by Entirety = one-half Other Joint Account = Portion that decedent could withdraw w/o duty to account Value = FMV on DOD less liens and security interests. FMV Liabilities Net POD account $ 100,000 $ 100,000 (payable to sister) Securities 200,000 50,000 150,000 account (TOD Lucy) 250,000 Property Held In Joint Tenancies and Tenancy by the Entireties Property (Other Than Accounts and Securities) -- §732.2035(4) Decedent’s “Fractional Interest” is included. Decedent’s Fractional Interest = Value Number of tenants Value = FMV on DOD less liens, mortgages and security interests FMV Liabilities Value % Net Gulf Home $ 400,000 $150,000 $ 250,000 50% $125,000 Held as T/E Revocable Transfers (Revocable Trusts) -- §732.2035(5) Property transferred by the decedent to the extent that at the time of death the transfer was revocable by the decedent either alone or in conjunction with any other person. This provision does not include transfers that are revocable only with the consent of all persons have a beneficial interest in the property. Value = FMV on DOD less mortgages, liens and security interests. FMV Liabilities Net Revocable Trust $1,500,000 $1,500,000 Certain Irrevocable Transfers by the Decedent -- §732.2035(6) 1. Transfers with Retained Right to Income or Principal: Property irrevocably transferred by the Decedent; and Decedent at time of death possessed right to or in fact enjoyed the possession or use of income or principal. Examples: Qualified Personal Residence Trust in which decedent retained right to occupy; Commercial or private annuity. Value: Portion of property to which the Decedent’s right or enjoyment related to extent not included in Probate Estate. Certain Irrevocable Transfers by the Decedent -- §732.2035(6) 2. Discretionary Principal Distributions: Property irrevocably transferred by the Decedent; and – At the time of death the principal of the property could, in the discretion of any person other than the spouse, be distributed or appointed to or for the benefit of the decedent. Discretionary income only not enough. Value: Portion of property subject to discretion to extent not included in Probate Estate. Certain Irrevocable Transfers by the Decedent -- §732.2035(6) 3. Excluded Irrevocable Transfers: Decedent’s only interest was one or more of the following: (i) Distributions that can only be made with the consent of all persons having a beneficial interest in the property. (ii) Distributions that can only be made by exercise of a general power of appointment which is held by someone other than decedent. (iii) Right to income or principal that can only be distributed in satisfaction of decedent’s obligation of support. (iv)Reversionary interest which is subject to a contingency beyond decedent’s control and which does not occur before decedent’s death FMV Liabilities Net Irrevocable Trust* $ 750,000 $ 750,000 (Desi receiving P&I) Life Insurance -- §732.2035(7) Decedent’s beneficial Interest in the net cash surrender value of any insurance policy on decedent’s life is included. Life insurance in an ILIT not included. Death Benefit Net Cash Surrender Value Life Insurance* $ 600,000 $ 400,000 (brother) Life Insurance* 500,000 100,000 (ex-wife) 500,000 Retirement Plans -- §732.2035(8) Amounts payable by reason of surviving decedent under any public or private retirement plan (other than SS or RR benefits) Value = Transfer tax value (Exception: Life insurance in a defined contribution plan only net cash value included) Transfer Tax Insurance > Value Value cash value 401(k) (sister ?) $ 125,000 $ 125,000 IRA (brother) 125,000 125,000 Defined 200,000 100,000 100,000 Contribution Plan* (150,000 – 50,000) (Lucy) DB CV $ 350,000 Transfers within one year of death - - §732.2035(9) Includes: 1. Any property transferred as a result of the termination of a right or interest in, or power over, property that would have been included in the elective estate as a revocable transfer or irrevocable transfer if the right, interest, or power had not terminated until the decedent's death. 2. Gifts made within one year of death, except: (a) Transfers for medical or educational expenses qualifying for exclusion from gift tax under IRC §2503(e); and (b) The first annual exclusion amount of property transferred to or for the benefit of each donee during the 1-year period, but only to the extent the transfer qualifies for exclusion gift tax under IRC §§ 2503(b) or (c). A "termination" with respect to a right or interest in property does not occur when the right or interest terminates by the terms of the governing instrument unless the termination is determined by reference to the death of the decedent and the court finds that a principal purpose for the terms of the instrument relating to the termination was avoidance of the elective share. Value: FMV as of the date of termination or transfer net of any liens, mortgages, or security interests on that date. FMV Less one annual Net exclusion per person Gift to Fred and $ 115,000 $ 30,000 $ 85,000 Ethel* Property transferred during lifetime in satisfaction of the elective share -- §732.2035(10) Any lifetime irrevocable transfer to an elective share trust. Example: Irrevocable Lifetime Q-TIP Trust Value: Value on DOD Overlapping Provision -- §732.2045(2) If property included in the Probate Estate and another subsection, the amount included under the other subsection is reduced by amount included in Probate Estate. In all other cases the subsection resulting in the largest amount is used. STEP 2 DETERMINE THE PROPERTY EXCLUDED FROM THE ELECTIVE ESTATE Irrevocable Transfers made before October 1, 1999 -- §732.2045(1)(a) Excluded Irrevocable Trust $ 750,000 Irrevocable Transfer made prior to Marriage -- §732.2045(1)(a) Excluded Irrevocable Trust $ 750,000 Transfers for adequate consideration in money or money’s worth -- §732.2045(1)(b) Transfers of property made by the decedent with the spouse’s written consent -- §732.2045(1)(c) Consent to gift split ≠ consent Waiver in qualified plan = consent Proceeds of any policy of insurance on the decedent’s life in excess of the net cash surrender value of the policy -- §732.2045(1)(d) Death Net Cash Excluded Benefit Surrender Value Life Insurance $ 600,000 $ 400,000 $ 200,000 Life Insurance $ 500,000 $ 100,000 $ 400,000 Any policy of insurance on the decedent’s life maintained pursuant to a court order -- §732.2045(1)(e) Excluded Life Insurance $ 500,000 Community Property Real property in other states that is considered community property One-half of any other community property Property held in a qualifying Special Needs Trust -- §732.2045(1)(g) Property included in decedent’s taxable estate solely by reason of a general power of appointment Certain transfers of pre-marital property -- §732.2155(6) Property held in a revocable or irrevocable trust if: (i) property was an asset of the trust at all times between October 1, 1999 and the date of death; (ii) Decedent not married when property first transferred to trust; and (iii) Property was a non-marital asset under §61.075 at DOD. Exempt Property -- §732.402(7) Excluded Motor vehicle $50,000 Furniture and Furnishings 20,000 STEP 3 DETERMINE THE AMOUNT OF THE ELECTIVE SHARE Elective Share = 30% of Elective Estate Included Excluded Sailboat $ 75,000 $ Maine Home 250,000 Furniture/Furnishings 15,000 20,000
Load more

Recommended publications
  • Community Property V. the Elective Share, 72 La
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Louisiana State University: DigitalCommons @ LSU Law Center Louisiana Law Review Volume 72 | Number 1 The Future of Community Property: Is the Regime Still Viable in the 21st Century? A Symposium Fall 2011 Community Property v. The lecE tive Share Terry L. Turnipseed Repository Citation Terry L. Turnipseed, Community Property v. The Elective Share, 72 La. L. Rev. (2011) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol72/iss1/8 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. Community Property v. The Elective Share Terry L. Turnipseed I. INTRODUCTION There is certainly no doubt that community property has its faults. But, as with any flawed thing, one must look at it in comparison with the alternatives: separate property and its companion, the elective share. This Article argues that the elective share is so flawed that it should be jettisoned in favor of community property.' The elective share can trace its ancestry to dower and curtesy, with the concept of dower dating to ancient times.2 In old England, a widowed woman was given a life estate in one-third of certain of her husband's real property-property in which the husband held an inheritable or devisable interest during the marriage.3 Once dower attached to a parcel of land at the inception of the marriage, the husband could not unilaterally terminate it by transferring the land.4 The right would spring to life upon the husband's death unless the wife had also consented to the transfer by signing the deed, even if title were held in only the husband's name.5 Copyright 2011, by TERRY L.
    [Show full text]
  • What's Wrong About the Elective Share
    GW Law Faculty Publications & Other Works Faculty Scholarship 2020 What’s Wrong About the Elective Share “Right”? Naomi R. Cahn George Washington University Law School, [email protected] Follow this and additional works at: https://scholarship.law.gwu.edu/faculty_publications Part of the Law Commons Recommended Citation 53 U.C. Davis L. Rev. (forthcoming 2020); GWU Law School Public Law Research Paper No. 2020-44; GWU Legal Studies Research Paper No. 2020-44 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in GW Law Faculty Publications & Other Works by an authorized administrator of Scholarly Commons. For more information, please contact [email protected]. CAHN MACRO V3.DOCX (DRAFT) (DO NOT DELETE) 6/2/2020 4:37 PM What’s Wrong About the Elective Share “Right”? Naomi Cahn* This Article examines one form of property rights available to a surviving spouse, the elective share. The elective share serves as an override to a testator’s stated intent by allowing the surviving spouse to choose to take a portion of the decedent’s estate — even if the will explicitly disinherits the surviving spouse. The Article analyzes a recent five-year period of state cases raising elective share issues with the goal of determining the circumstances under which an elective share is most likely to be contested. The reported elective share disputes typically involve a subsequent spouse challenging a will that leaves property to an earlier family. The petitioners are almost invariably women. The length of the marriage ranges from a few months to decades, and some of the cases involve waiver of the share, some involve estranged spouses, and a few involve marriage fraud.
    [Show full text]
  • Report of the Elective Share Work Group HB 3077
    Elective Share Work Group ELECTIVE SHARE HB 3077 Prepared by Samuel E. Sears Staff Attorney and Ben Stewart Law Clerk Updated by Susan N. Gary Work Group Member From the Offices of the Executive Director Jeffrey C. Dobbins and Deputy Director and General Counsel Wendy J. Johnson Approved by the Oregon Law Commission at its Meeting on February 11, 2009* * Amended to reflect amendments made to the bill after further discussions with the Estate Planning Section of the Oregon State Bar. I. Introductory Summary Oregon’s elective share statute provides that a surviving spouse is entitled to 25% of the net probate estate of a deceased spouse regardless of the provisions of the deceased spouse’s will. The purpose of elective share statutes is to protect a surviving spouse from disinheritance by his or her decedent spouse. There are two primary justifications for this rule: 1) both spouses contribute to the acquisition of wealth during marriage and both should receive an equal portion of the couple’s marital assets (partnership theory); and 2) the surviving spouse should be provided some measure of support (support theory). In contrast with the elective share, a spouse who seeks a divorce in Oregon is entitled to an equitable distribution of the couple’s assets, usually roughly 50% of those assets. Thus, a spouse who files for divorce typically receives substantially more than a spouse who opts to take the elective share. Not only is the percentage higher, but in addition, the elective share statute applies only to the probate estate,1 so it can easily be avoided through nonprobate transfers, such as revocable trusts.
    [Show full text]
  • Estate Planning for Second Marriages and Blended Families
    Presenting a live 90-minute webinar with interactive Q&A Estate Planning for Second Marriages and Blended Families Maximizing Tax Benefits, Incorporating Pre- and Postnuptial Agreements, and Meeting Obligations to Children and Spouses TUESDAY, MAY 19, 2015 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Kristin A. Pace, Partner, Donahue Fitzgerald, Oakland, Calif. Todd J. Preti, Principal, Midgett Preti Alperin, Virginia Beach, Va. Bridget K. Sullivan, Member, Sherman & Howard, Denver The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. Tips for Optimal Quality FOR LIVE EVENT ONLY Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory, you may listen via the phone: dial 1-866-961-9091 and enter your PIN when prompted. Otherwise, please send us a chat or e-mail [email protected] immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again. Continuing Education Credits FOR LIVE EVENT ONLY For CLE purposes, please let us know how many people are listening at your location by completing each of the following steps: • In the chat box, type (1) your company name and (2) the number of attendees at your location • Click the SEND button beside the box In order for us to process your CLE, you must confirm your participation by completing and submitting an Official Record of Attendance (CLE Form) to Strafford within 10 days following the program.
    [Show full text]
  • 633.238 Elective Share of Surviving Spouse. 1. the Elective Share of the Surviving Spouse Shall Be Limited to All of the Following: A
    1 PROBATE CODE, §633.238 633.238 Elective share of surviving spouse. 1. The elective share of the surviving spouse shall be limited to all of the following: a. One-third in value of all the legal or equitable estates in real property possessed by the decedent at any time during the marriage which have not been sold on execution or other judicial sale, and to which the surviving spouse has made no express written relinquishment of right, including but not limited to any relinquishments of rights described in paragraph “d”. b. All personal property that, at the time of death, was in the hands of the decedent as the head of a family, exempt from execution. c. One-third of all personal property of the decedent that is not necessary for the payment of debts and charges. d. (1) One-third in value of the property held in trust not necessary for the payment of debts and charges over which the decedent was a settlor and retained at the time of death the power to alter, amend, or revoke the trust, or over which the decedent waived or rescinded any such power within one year of the date of death, and to which the surviving spouse has not made any express written relinquishment in compliance with subparagraph (2). (2) The elective share of the surviving spouse shall not include the value of the property held in a trust described in subparagraph (1), if both of the following are true: (a) The decedent created the trust after the date of decedent’s marriage to the surviving spouse.
    [Show full text]
  • Spousal Election: Suggested Equitable Reform for the Division of Property at Death Angela M
    University of Baltimore Law ScholarWorks@University of Baltimore School of Law All Faculty Scholarship Faculty Scholarship Spring 2003 Spousal Election: Suggested Equitable Reform for the Division of Property at Death Angela M. Vallario University of Baltimore School of Law, [email protected] Follow this and additional works at: http://scholarworks.law.ubalt.edu/all_fac Part of the Estates and Trusts Commons, Family Law Commons, and the Taxation-Federal Estate and Gift ommonC s Recommended Citation Spousal Election: Suggested Equitable Reform for the Division of Property at Death, 52 Cath. U. L. Rev. 519 (2003) This Article is brought to you for free and open access by the Faculty Scholarship at ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. ARTICLES SPOUSAL ELECTION: SUGGESTED EQUITABLE REFORM FOR THE DIVISION OF PROPERTY AT DEATH Angela M. Vallario + Introduction I. Overview of the Marital Property Systems A. The Common Law Property System B. The Community Property System C. The Uniform Marital Property Act II. Historical Background and Development of the Elective Share A. Dower and Curtesy B. The Elective Share 1. The Support and Partnership Theories C. Fair and Equitable Distribution of Property at Divorce III. Traditional Elective Share Jurisdictions A. Traditional Elective Share Statutes B. Clarification Needed for Estate Planning IV. Augmented Estate Elective Share Jurisdictions A. The UPC Model B. The Federal Estate Tax Model C. The Comprehensive Model V. Comparison of Elective Share Methods to Dissolution at Divorce A.
    [Show full text]
  • Testamentary Freedom Vs. the Natural Right to Inherit: the Misuse of No-Contest Clauses As Disinheritance Devices
    Washington University Jurisprudence Review Volume 12 Issue 1 2019 Testamentary Freedom Vs. the Natural Right to Inherit: The Misuse of No-Contest Clauses As Disinheritance Devices Alexis A. Golling-Sledge J.D. Candidate, Washington University School of Law Class of 2020 Follow this and additional works at: https://openscholarship.wustl.edu/law_jurisprudence Part of the Civil Law Commons, Common Law Commons, Estates and Trusts Commons, Jurisprudence Commons, Law and Society Commons, Legal History Commons, Legal Theory Commons, Natural Law Commons, and the Rule of Law Commons Recommended Citation Alexis A. Golling-Sledge, Testamentary Freedom Vs. the Natural Right to Inherit: The Misuse of No- Contest Clauses As Disinheritance Devices, 12 WASH. U. JUR. REV. 143 (2019). Available at: https://openscholarship.wustl.edu/law_jurisprudence/vol12/iss1/9 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Jurisprudence Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. TESTAMENTARY FREEDOM VS. THE NATURAL RIGHT TO INHERIT: THE MISUSE OF NO-CONTEST CLAUSES AS DISINHERITANCE DEVICES ALEXIS A. GOLLING-SLEDGE* ABSTRACT Testamentary freedom is the bedrock of inheritance law. The freedom is curbed in some respects in order to allow spouses and other groups access to an estate. However, there is no restriction on a parent's ability to disinherit their children. This note is a critique of the permitted disinheritance of children in the name of testamentary freedom. According to John Locke, the right to inherit emanates from natural law and should be recognized as such.
    [Show full text]
  • Planning for the Elective Share
    Planning for the Elective Share By William D. Brewer, Hershner Hunter LLP In HB 3077, the 2009 legislature passed a major revision to the elective share law in Oregon, currently at ORS 114.105 to 114.165. Although Section 23 of HB 3077 delays the effective date until deaths occurring after January 1, 2011, planning to avoid surprises created by the new law should begin now. Under current Oregon law, defeating a surviving spouse’s elective share right to a 25% interest in the decedent spouse’s net probate estate has been as simple as preventing assets from passing through probate. With the proliferation of retirement plan assets and the trend toward probate avoidance in general, the current elective share statutes have become increasingly obsolete as a way to protect the rights of a surviving spouse. As a result, HB 3077 uses an augmented estate approach that subjects to the elective share essentially all assets in which the decedent spouse and the surviving spouse have an interest at the death of the decedent spouse. Inclusion of the surviving spouse’s estate in the augmented estate will prevent a wealthy surviving spouse from using the election against the estate of a less wealthy decedent spouse. The augmented estate is defined in Section 8(1) of HB 3077 as the decedent’s probate estate, the decedent’s nonprobate estate, the surviving spouse’s estate, and the decedent’s probate and nonprobate transfers to the surviving spouse. The nonprobate estate includes revocable trusts, property held in survivorship tenancy, property subject to a pay-on- death or transfer-on-death registration, and property for which the decedent could designate a beneficiary.
    [Show full text]
  • G.S. 30-3.4 Page 1 § 30-3.4. Procedure for Determining The
    § 30-3.4. Procedure for determining the elective share. (a) Exercisable Only During Lifetime. – The right of the surviving spouse to file a claim for an elective share must be exercised during the lifetime of the surviving spouse, by the surviving spouse, by the surviving spouse's agent if the surviving spouse's power of attorney expressly authorizes the agent to do so or to generally engage in estate, trusts, and other beneficial interests, or, with approval of court, by the guardian of the surviving spouse's estate or general guardian. If a surviving spouse dies before the claim for an elective share has been settled, the surviving spouse's personal representative shall succeed to the surviving spouse's rights to an elective share. (b) Time Limitations. – A claim for an elective share must be made within six months after the issuance of letters testamentary or letters of administration in connection with the will or intestate proceeding with respect to which the surviving spouse claims the elective share by (i) filing a petition with the clerk of superior court of the county in which the primary administration of the decedent's estate lies, and (ii) mailing or delivering a copy of that petition to the personal representative of the decedent's estate. A surviving spouse's incapacity shall not toll the six-month period of limitations. (c) Repealed by Session Laws 2011, c. 344, s. 6, effective January 1, 2012, and applicable to estates of decedents dying on or after that date. (d) Repealed by Session Laws 2009, c. 368, s.
    [Show full text]
  • ARTICLE 2- Intestate Succession and Wills-Parts 2,3, and 4
    SIDE-BY-SIDE ARTICLE 2- Intestate Succession and Wills-Parts 2,3, and 4 ARTICLE 2- Parts 2,3, and 4-Existing Code Bill # S. 1243-Article 2-Parts 2,3, and 4 Article 2.Part 2.Elective Share of Surviving Spouse Article 2. Part 2. SECTION 62-2-201. Right of elective share. SECTION 62-2-201. (a) If a married person domiciled in this State dies, the surviving spouse has a right of election to (a) If a married person domiciled in this State dies, the surviving spouse has a right of election take an elective share of one-third of the decedent’s probate estate, as computed under Section to take an elective share of one-third of the decedent’s probate estate, as computed under Section 62-2-202, the share to be satisfied as detailed in Sections 62-2-206 and 62-2-207 and, generally, 62-2-202, the share to be satisfied as detailed in Sections 62-2-206 and 62-2-207 and, generally, under the limitations and conditions hereinafter stated. under the limitations and conditions hereinafter stated. (b) If a married person not domiciled in this State dies, the right, if any, of the surviving spouse (b) If a married person not domiciled in this State dies, the right, if any, of the surviving to take an elective share in property in this State is governed by the law of the decedent’s spouse to take an elective share in property in this State is governed by the law of the decedent’s domicile at death.
    [Show full text]
  • ADMINISTRATION of INTESTATE ESTATES I. GENERAL Filed In
    ADMINISTRATION OF INTESTATE ESTATES I. GENERAL Filed in Probate Court § 43-2-1 All letters testamentary or of administration, general or special, and the bonds given by executors and administrators must be recorded by the Judge of Probate. II. PETITION FOR LETTERS OF ADMINISTRATION A. Place of filing § 43-2-40 1. County where decedent was an inhabitant at the time of death 2. County where non-resident decedent leaves assets 3. County where non-resident decedent’s assets are brought after death 4. Any county in Alabama where the decedent is a resident and leaves assets; if decedent leaves no assets in county of residence, then after 3 months from death B. Priority of Grant of Letters of Administration § 43-2-42 1. Spouse 2. Next of kin 3. Largest creditor 4. County or General Administrator - for those counties with population of 400,000 or more 5. Such person as Probate Judge appoints C. Disqualification of persons to serve as Administrator 1. Under the age of 19 2. Convicted of an infamous crime 3. Incompetent due to intemperance, improvidence or lack of understanding 4. Non-resident of the State of Alabama unless serving as administrator in another state, territory, or jurisdiction D. Time for Administration 1. Letters are not to be granted for 5 days after death § 43-2-45 2. The spouse, next of kin and largest creditor must file for letters within 40 days or they are deemed to waive their priority to administer estate. § 43- 2-43 3. In counties with County or General Administrators, a renunciation by the County or General Administrator may be required to be filed before letters will issue.
    [Show full text]
  • What's Wrong About the Elective Share
    What’s Wrong About the Elective Share “Right”? Naomi Cahn* This Article examines one form of property rights available to a surviving spouse, the elective share. The elective share serves as an override to a testator’s stated intent by allowing the surviving spouse to choose to take a portion of the decedent’s estate — even if the will explicitly disinherits the surviving spouse. The Article analyzes a recent five-year period of state cases raising elective share issues with the goal of determining the circumstances under which an elective share is most likely to be contested. The reported elective share disputes typically involve a subsequent spouse challenging a will that leaves property to an earlier family. The petitioners are almost invariably women. The length of the marriage ranges from a few months to decades, and some of the cases involve waiver of the share, some involve estranged spouses, and a few involve marriage fraud. Disputes over the elective share illustrate family tensions, rarely involving parents against joint children, and more frequently pitting a surviving spouse against the decedent’s earlier families. The Article provides an empirical assessment of the current rationales for the elective share and suggests revisions to existing elective share approaches that reflect both differing theories of what values marriage should represent and the changing demography of marriage and remarriage. * Copyright © 2020 Naomi Cahn. Naomi Cahn is the Harold H. Greene Chair, George Washington University Law School. Thanks to Mary Kate Hunter, research librarian extraordinaire. I also thank Meredith Condren and Miranda Millerick for research assistance. And much gratitude to Adam Hirsch, David Horton, and everyone involved in the ACTEC/UC Davis Law Review Symposium, An Empirical Analysis of Wealth Transfer Law, for which this Article was prepared.
    [Show full text]