What is a holographic will?
Full Question:
If the holographic will states money to be given to only living brothers & sisters, will that leave nieces & nephews of deceased out of will?
01/09/2009 |
Category: Wills and Estates |
State: Arkansas |
#14953
Answer:
A holographic will is one that is entirely written, dated, and signed in the handwriting of the testator (person making the will), rather than typewritten or printed. In some states, holographic wills are not required to be signed by witnesses in order to be valid to pass property. In states that permit them, the laws relating to holographic wills can be very specific or restrictive. Holographic wills are subject to closer scrutiny, and are less commonly recognized than other wills. Courts have been lenient in trying to figure out some holographic wills when questions arise, but judges will not rewrite a holographic will to make it valid. In order for any holographic will to be valid, it must meet requirements involving testamentary intent; testamentary capacity; formality, and be free from undue influence, fraud, mistake, or duress.
The answer to your question may depend on the language used in the will. Per stirpes is a Latin term meaning "by roots," or by representation. The term is often used in wills and trusts to describe how to carry out a distribution when a beneficiary dies before the person whose estate is being divided. Under per stirpes distribution, children take among them the share which their parent would have taken had he survived the decedent. The children stand in a representative capacity to their parents. Another way to express the same intention is to provide "…to her children, by right of representation, share and share alike," which is clear to the non-lawyer. If there is no provision for distribution to children of a predeceased child, then the gift will become part of the residue (what is left after specific gifts), and then the grandchildren may not share if there are surviving children of the giver.
If a holographic will is not considered valid, the estate will likely be distributed as if the deceased died without a will or according to the intestate laws of descent and distribution.
The following are Arkansas statutes:
28-40-117. Proof of will.
(a) An attested will shall be proved as follows:
(1) By the testimony of at least two (2) attesting witnesses, if living
at known addresses within the continental United States and capable of
testifying; or
(2)
(A) If only one (1) or neither of the attesting witnesses is living
at a known address within the continental United States and capable of
testifying, or if, after the exercise of reasonable diligence, the
proponent of the will is unable to procure the testimony of two (2)
attesting witnesses, in either event the will may be established by the
testimony of at least two (2) credible disinterested witnesses.
(B) The witnesses shall prove the handwriting of the testator and such
other facts and circumstances, including the handwriting of the attesting
witnesses whose testimony is not available, as would be sufficient to
prove a controverted issue in equity, together with the testimony of any
attesting witness whose testimony is procurable with the exercise of due
diligence.
(b) A holographic will shall be proved by the testimony of at least three
(3) credible disinterested witnesses proving the handwriting and signature
of the testator and such other facts and circumstances as would be
sufficient to prove a controverted issue in equity.
(c) A will which has been lost or destroyed by accident or design of some
person other than the testator shall be proved by evidence which would be
competent and sufficient in a proceeding in equity for the establishment of
the lost will. The will so established shall be set forth in the order
establishing it.
(d) The provisions of this section as to the testimony of subscribing
witnesses shall not exclude the production of other evidence at the
hearing on the petition for probate, and the due execution of the will
may be proved by such other evidence.
28-25-104. Holographic wills generally.
When the entire body of the will and the signature shall be written in
the proper handwriting of the testator, the will may be established by
the evidence of at least three (3) credible disinterested witnesses to
the handwriting and signature of the testator, notwithstanding there may
be no attesting witnesses to the will.
28-9-203. Intestate succession generally.
(a) Any part of the estate of a decedent not effectively disposed of by
his or her will shall pass to his or her heirs as prescribed in the
following sections.
(b) In this connection, the terms "heir" and "heirs", as used in this
subchapter, are intended to designate the person or persons who succeed
by inheritance to the ownership of real or personal property in respect
to which a person dies intestate.
(c)
(1) Real estate passes immediately to the heirs upon the death of the
intestate, subject to the right of the personal representative under the
Probate Code to mortgage, lease, exchange, sell, or possess it for the
payment of claims or legacies, the preservation or protection of the assets
of the estate, the distribution of the estate, or any other purpose in the
best interest of the estate.
(2) However, personalty will pass to the personal representative, if any,
for distribution to the heirs unless otherwise disposed of as permitted by
the probate code.
28-9-204. Per capita distribution.
Heirs will take per capita in the following circumstances:
(1)
(A) If all members of the class who inherit real or personal
property from an intestate are related to the intestate in equal degree,
they will inherit the intestate's estate in equal shares and will be said
to take per capita.
(B) For illustration:
(i) If the intestate leaves no heirs except children, the children will
take per capita and in equal shares;
(ii) If the intestate leaves no heirs except grandchildren, all the
grandchildren will take per capita and in equal shares; and
(iii) If the inheriting class consists solely of great-grandchildren,
or any more remote descendants of the intestate who are all related to
the intestate in the same degree, they will take per capita.
(C) The same rule applies to the inheritance by collateral heirs of the
intestate as when, for illustration, the inheriting class consists entirely
of brothers and sisters, or consists solely of nieces and nephews who are
descendants of deceased brothers and sisters, or consists of any other
collateral relatives of the intestate who are related to the intestate in
equal degree.
(D) Likewise, when the inheriting class consists of uncles, aunts, and
grandparents or great-uncles, great-aunts, and great-grandparents who,
under § 28-9-214, may constitute an inheriting class even though they
represent different generations, all members of such a class who survive
the intestate will take per capita and share equally; and
(2) If the members of the inheriting class are related to the intestate
in unequal degree, those in the nearer degree will take per capita or in
their own right, and those in the more remote degree will take per
stirpes or through representation as provided in § 28-9-205.
28-9-205. Per stirpes distribution.
(a)
(1) Heirs will take "per stirpes" if the intestate is predeceased by
one (1) or more persons who would have been entitled to inherit from the
intestate had such a person survived the intestate.
(2) The intestate's estate shall be divided into as many equal shares
as there are:
(A) Surviving heirs in the nearest degree of kinship to the intestate;
and
(B) Persons, hereinafter called "predeceased persons", in the same
degree of kinship as the heirs mentioned in subdivision (a)(2)(A) of this
section, who predeceased the intestate leaving descendants who survived
the intestate.
(3) Each surviving heir in the nearest degree taking per capita shall
receive one (1) share and the descendants of each predeceased person taking
per stirpes shall collectively receive one (1) share.
(b)
(1) If the descendants of a predeceased person are all related to the
predeceased person in the same degree, they will take in equal parts the
share accruing to them collectively.
(2) However, if such descendants are related to the predeceased person
in unequal degree, the share accruing to them collectively shall pass per
capita to those in the nearer degree and per stirpes to those in the more
remote degree according to the formula set out in subdivision (a)(3) of
this section.
(3) If the descendants of a predeceased person are found in multiple
generations, the above formula for division shall be applied in respect to
the descendants in each generation.
(c)
(1) The provisions of this section shall be applied to both real and
personal property and to both lineal and collateral heirs.
(2) However, if under § 28-9-214, the inheriting class consists of
grandparents and uncles and aunts, or of great-grandparents and
great-uncles and great-aunts, the per stirpes rule shall apply when an
uncle or aunt, or great-uncle or great-aunt, as the case may be, shall
predecease the intestate, leaving descendants. However, it shall not be
applied in respect to a grandparent or great-grandparent of the intestate
who predeceased the intestate. In this event the grandparent or
great-grandparent shall not be counted in determining the number of
shares passing to the members of the inheriting class or those taking
through them by representation.
28-9-206. Interests transmissible by inheritance.
(a) Heirs may inherit every right, title, and interest not terminated
by the intestate's death in real or personal property owned by an
intestate at the time of the intestate's death and not disposed of by
will.
(b) The rights of heirs will be subject to:
(1) The dower or curtesy of the intestate's surviving spouse;
(2) The homestead rights of the surviving spouse and children of the
intestate, including the quarantine rights of the surviving spouse;
(3) All statutory rights and allowances to the surviving spouse and minor
children;
(4) Any rights of a surviving spouse in respect to income tax refunds
made pursuant to a joint federal income tax return; and
(5) An administration of the estate, if any.
(c) The portion of the intestate's estate which may pass by inheritance,
after giving effect to subsection (b) of this section and to any partial
testamentary disposition, is hereinafter sometimes called the "heritable
estate" of the intestate.
(d) In this connection it is declared that subject to the conditions
set out above, the intestate's entire right and title in respect to any
and all reversionary and remainder interests, rights of reentry or
forfeiture for condition broken, executory interests, and possibilities
of reverter, whether any of such interests are vested or contingent,
shall be transmissible by inheritance and will pass to the intestate's
heirs determined as of the time of the intestate's death.
(e) An intestate may transmit his or her title to real or personal
property by inheritance even though:
(1) The intestate is not in actual or constructive possession thereof;
and
(2) There may be adverse possession thereof.
28-9-207. Heirs as tenants in common.
When real or personal property is transmitted by inheritance to two (2)
or more persons, they will take the same as tenants in common. However,
when personal property is distributed in separate units by a personal
representative, each distributee will hold his or her distributed part in
severalty.
28-9-212. Computing degrees of consanguinity.
(a)
(1) In computing the degrees of relationship between any two (2)
kinsmen who are not related in a direct line of ascent or descent, it is
proper to start with the common ancestor of the kinsmen and count
downwards. In whatever degree the kinsmen or the more remote of them is
distant from the common ancestor, that is the degree in which they are
related to each other.
(2) Thus two (2) or more children of a common parent are related to
each other in the first degree, because from the common parent to each of
the children is counted only one (1) degree.
(3) But a person and his or her nephew are related in the second
degree, for the nephew is two (2) degrees removed from his or her
grandparent who is the common ancestor.
(4) A person and his or her second cousin are related in the third
degree, for they are both three (3) degrees removed from the
great-grandparent who is their common ancestor.
(b) In computing the degrees of relationship between any two (2) kinsmen
related in a direct line of ascent or descent, the degree of relationship
shall be determined by starting with one (1) of the persons and counting up
or down to the other. Thus, a person and his or her:
(1) Parent or child are related in the first degree;
(2) Grandparent or grandchild are related in the second degree; and
(3) Great-grandparent or great-grandchild are related in the third
degree.
28-9-214. Tables of descents.
The heritable estate of an intestate as defined in § 28-9-206 shall pass
as follows upon the intestate's death:
(1) First, to the children of the intestate and the descendants of each
child of the intestate who may have predeceased the intestate. The
children and descendants will take per capita or per stirpes according to
§§ 28-9-204 and 28-9-205;
(2) Second, if the intestate is survived by no descendant, to the
intestate's surviving spouse unless the intestate and the surviving
spouse had been continuously married less than three (3) years next
preceding the death of the intestate, in which event the surviving spouse
will take merely fifty percent (50%) of the intestate's heritable
estate;
(3) Third, if the intestate is survived by no descendant or spouse, to
the intestate's surviving parents, sharing equally, or to the sole
surviving parent if only one (1) of them shall be living;
(4) Fourth, if the intestate is survived by no descendant but is
survived by a spouse to whom the intestate has been continuously married
less than three (3) years next preceding the death of the intestate, the
entire portion of his or her heritable estate which does not pass to the
surviving spouse under subdivision (2) of this section shall pass to the
intestate's surviving parents, sharing equally, or to the sole surviving
parent if only one (1) of them shall be living;
(5) Fifth, if the intestate is survived by no descendant or parent,
then all of his or her heritable estate which under subdivisions (3) and
(4) of this section would have vested in the intestate's surviving parent
or parents will pass to the intestate's brothers and sisters and the
descendants of any brothers and sisters of the intestate who may have
predeceased the intestate, such brothers, sisters, and descendants taking
per capita or per stirpes according to §§ 28-9-204 and 28-9-205;
(6) Sixth, if the intestate is survived by no descendant, then in
respect to such portion of his or her heritable estate as does not pass
under subdivisions (2)-(5) of this section, the inheriting class will be
the surviving grandparents, uncles, and aunts of the intestate. In this
situation, each surviving grandparent shall take the same share as each
surviving uncle and aunt, and no distinction shall be made between the
paternal and maternal sides. In other words, a maternal grandparent,
uncle, or aunt shall take the same share as a paternal grandparent,
uncle, or aunt and vice versa. If any uncle or aunt of the intestate
shall predecease the intestate, the descendants of the deceased uncle or
aunt will take, per capita or per stirpes according to §§ 28-9-204 and
28-9-205, the share the decedent would have taken if he or she had
survived the intestate;
(7) Seventh, if the intestate is survived by no descendant, then in
respect to the portion of his or her estate as does not pass under
subdivisions (2)-(6) of this section, the inheriting class will be the
surviving great-grandparents and great-uncles and great-aunts of the
intestate. In this situation, each surviving great-grandparent shall take
the same share as each surviving great-uncle and great-aunt, and no
distinction shall be made between the paternal and maternal sides. In
other words, a maternal great-grandparent, great-uncle, or great-aunt
shall take the same share as a paternal great-grandparent, great-uncle,
or great-aunt and vice versa. If any great-uncle or great-aunt shall
predecease the intestate, the descendants of the decedent will take, per
capita or per stirpes according to §§ 28-9-204 and 28-9-2052, the share the
decedent would have taken if he or she had survived the intestate; and
(8) Eighth, if heirs capable of inheriting the entire heritable estate
cannot be found within the inheriting classes prescribed in subdivisions
(1)-(7) of this section, the real and personal property of the
intestate, or the portion not passing under those subdivisions, shall
pass according to § 28-9-215, devolution when all or some portion of a
heritable estate does not pass under this section.
