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| Home > Statutes > Usa Arizona |
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USA Statutes : arizona
Title : Trusts, Estates and Protective Proceedings
Chapter : INTESTATE SUCCESSION AND WILLS
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14-2101 Intestate estate; modification by will
A. Any part of a decedent's estate not effectively disposed of by will passes by
intestate succession to the decedent's heirs as prescribed in this chapter, except as
modified by the decedent's will.
B. A decedent by will may expressly exclude or limit the right of a person or class
to succeed to property of the decedent that passes by intestate succession. If that
person or a member of that class survives the decedent, the share of the decedent's
intestate estate to which that person or class would have succeeded passes as if that
person or each member of that class had disclaimed that person's intestate share.
14-2102 Intestate share of surviving spouse
The following part of the intestate estate, as to both separate property and the
one-half of community property that belongs to the decedent, passes to the surviving
spouse:
1. If there is no surviving issue or if there are surviving issue all of whom are
issue of the surviving spouse also, the entire intestate estate.
2. If there are surviving issue one or more of whom are not issue of the surviving
spouse, one-half of the intestate separate property and no interest in the one-half of
the community property that belonged to the decedent.
14-2103 Heirs other than surviving spouse; share in estate
Any part of the intestate estate not passing to the decedent's surviving spouse
under section 14-2102 or the entire intestate estate if there is no surviving spouse
passes in the following order to the following persons who survive the decedent:
1. To the decedent's descendants by representation.
2. If there is no surviving descendant, to the decedent's parents equally if both
survive or to the surviving parent.
3. If there is no surviving descendant or parent, to the descendants of the
decedent's parents or either of them by representation.
4. If there is no surviving descendant, parent or descendant of a parent, but the
decedent is survived by one or more grandparents or descendants of grandparents, half of
the estate passes to the decedent's paternal grandparents equally if both survive or to
the surviving paternal grandparent or the descendants of the decedent's paternal
grandparents or either of them if both are deceased with the descendants taking by
representation. The other half passes to the decedent's maternal relatives in the same
manner. If there is no surviving grandparent or descendant of a grandparent on either
the paternal or the maternal side, the entire estate passes to the decedent's relatives
on the other side in the same manner as the half.
14-2104 Heirs; surviving of decedent; time requirement; presumption; exception
A. A person who does not survive the decedent by at least one hundred twenty hours
is deemed to have predeceased the decedent for purposes of homestead allowance, exempt
property and intestate succession, and the decedent's heirs are determined accordingly.
B. If it is not established by clear and convincing evidence that a person who
would otherwise be an heir survived the decedent by at least one hundred twenty hours, it
is deemed that the individual failed to survive for the required period.
C. This section does not apply if its application would result in a taking of
intestate estate by the state under section 14-2105.
14-2105 Unclaimed estate; passage to state
If no one is qualified to claim the estate under this article, the intestate estate
passes to the state.
14-2106 Passing of estate by representation; assigning of shares; definitions
A. If under section 14-2103, paragraph 1 all or part of a decedent's intestate
estate passes by representation to the decedent's descendants, that estate is divided
into as many equal shares as there are surviving descendants in the generation nearest to
the decedent that contains one or more surviving descendants and to deceased descendants
in the same generation who left any surviving descendants. Each surviving descendant in
the nearest generation is allocated one share. Any remaining shares are combined and
then divided in the same manner among the surviving descendants of the deceased
descendants as if the surviving descendants who were allocated a share and their
surviving descendants had predeceased the decedent.
B. If under section 14-2103, paragraph 3 or 4 all or part of a decedent's intestate
estate passes by representation to the descendants of either of the decedent's deceased
parents or to the descendants of either of the decedent's deceased paternal or maternal
grandparents, all or part of the estate is divided into as many equal shares as there are
surviving descendants in the generation nearest the deceased parents or either of them,
or the deceased grandparents or either of them, that contains one or more surviving
descendants and to deceased descendants in the same generation who left any surviving
descendants. Each surviving descendant in the nearest generation is allocated one
share. Any remaining shares are combined and then divided in the same manner among the
surviving descendants of the deceased descendants as if the surviving descendants who
were allocated a share and their surviving descendants had predeceased the decedent.
C. For the purposes of this section:
1. "Deceased descendant", "deceased parent" or "deceased grandparent" means a
descendant, parent or grandparent who either predeceased the decedent or is deemed to
have predeceased the decedent under section 14-2104.
2. "Surviving descendant" means a descendant who neither predeceased the decedent
nor is deemed to have predeceased the decedent under section 14-2104.
14-2107 Kindred by half blood; right of inheritance
Relatives of the half blood inherit the same share they would inherit if they were
of the whole blood.
14-2108 After-born heirs; requirements
A child in gestation at a particular time is treated as living at that time if the
child lives at least one hundred twenty hours after its birth.
14-2109 Advancements of property during lifetime; effect on distribution of estate
A. If a person dies intestate as to all or a portion of that person's estate,
property the decedent gave during the decedent's lifetime to a person who, at the
decedent's death, is an heir is treated as an advancement against the heir's intestate
share only if the decedent declared in a contemporaneous writing or the heir acknowledged
in writing that the gift is an advancement or if the decedent's contemporaneous writing
or the heir's written acknowledgment otherwise indicates that the gift is to be taken
into account in computing the division and distribution of the decedent's intestate
estate.
B. For the purposes of this section, property advanced during the decedent's
lifetime is valued as of the time the heir came into possession or enjoyment of the
property or as of the time of the decedent's death, whichever first occurs.
C. If the recipient of the property fails to survive the decedent the property is
not taken into account in computing the division and distribution of the decedent's
intestate estate unless the decedent's contemporaneous writing provides otherwise.
14-2110 Debts owed to a decedent; effect on distribution of estate
A debt owed to a decedent is not charged against the intestate share of any person
except the debtor. If the debtor fails to survive the decedent, the debt is not taken
into account in computing the intestate share of the debtor's descendants.
14-2111 Effect of alienage on distribution of estate
No person is disqualified to take as an heir because that person or a person through
whom that person claims is or has been an alien.
14-2113 Heirs related to decedent through two lines; single share
A person who is related to the decedent through two lines of relationship is
entitled to only a single share based on the relationship that would entitle the person
to the larger share.
14-2114 Parent and child relationship; intestate succession; adopted children
A. Except as provided in subsections B and C of this section, for the purposes of
intestate succession, a person is the child of that person's natural parents, regardless
of their marital status. If this issue is in dispute the court shall establish that
relationship under title 25, chapter 6, article 1.
B. An adopted person is the child of that person's adopting parent or parents and
not of the natural parents. Adoption of a child by the spouse of either natural parent
has no effect on the relationship between the child and that natural parent or on the
right of the child or a descendant of the child to inherit from or through the other
natural parent.
C. Inheritance from or through a child by either natural parent or the natural
parent's kindred is precluded unless that natural parent has openly treated the child as
a natural child and has not refused to support the child.
14-2207 Rights of surviving spouse; waiver; requirements; effect
A. A surviving spouse may waive the person's homestead allowance, exempt property
and family allowance rights in whole or in part either before or after marriage by a
written contract, agreement or waiver that is signed by the surviving spouse.
B. A surviving spouse's waiver is not enforceable if the surviving spouse provides
that either of the following is true:
1. That person did not execute the waiver voluntarily.
2. The waiver was unconscionable when it was executed and before its execution that
person:
(a) Was not provided a fair and reasonable disclosure of the property or financial
obligations of the decedent.
(b) Did not voluntarily and expressly waive, in writing, any right to disclosure of
the property or financial obligations of the decedent beyond the disclosure provided.
(c) Did not have, or reasonably could not have had, an adequate knowledge of the
property or financial obligations of the decedent.
C. The issue of a waiver's unconscionability may only be decided by the court as a
matter of law.
D. Unless it provides to the contrary, a waiver that contains the words "all
rights" or equivalent language, in relation to the property or estate of a present or
prospective spouse or a complete property settlement entered into after or in
anticipation of separation or divorce, is a waiver of all rights of homestead allowance,
exempt property and family allowance by each spouse in the property of the other and a
renunciation by each of all benefits that would otherwise pass to each person from the
other by intestate succession or by virtue of any will executed before the waiver or
property settlement.
14-2301 Entitlement of spouse; premarital will
A. If a testator's surviving spouse married the testator after the testator
executed a will, the surviving spouse is entitled to receive as an intestate share that
is not less than the value of the share of the estate the spouse would have received if
the testator had died intestate as to any portion of the testator's estate that neither
is devised to a child of the testator who was born before the testator married the
surviving spouse and who is not a child of the surviving spouse nor is devised to a
descendant of that child or that passes under section 14-2603 or 14-2604 to that child or
to a descendant of that child, unless:
1. It appears from the will or other evidence that the will was made in
contemplation of the testator's marriage to the surviving spouse.
2. The will expresses the intention that it is to be effective notwithstanding any
subsequent marriage.
3. The testator provided for the spouse by transfer outside the will and the intent
that the transfer is in lieu of a testamentary provision is shown by the testator's
statements or can be reasonably inferred from the amount of the transfer or other
evidence.
B. In satisfying the share provided by subsection A of this section, any devises
made by the will to the testator's surviving spouse are applied first. Other devises
abate pursuant to section 14-3902 unless the devise is to a child of the testator who was
born before the testator married the surviving spouse and who is not a child of the
surviving spouse or is a devise or substitute gift under section 14-2603 or 14-2604 to a
descendant of that child.
14-2302 Omitted children; shares; definition
A. Except as provided in subsection C of this section, if a testator fails to
provide by will for a child who is born or adopted after the testator executes the will,
the omitted child receives a share in the estate as follows:
1. If the testator had no child living when the testator executed the will, an
omitted child receives a share in the estate equal in value to what the child would have
received if the testator had died intestate, unless the will devised all or substantially
all of the estate to the other parent of the omitted child and that other parent survives
the testator and is entitled to take under the will.
2. If the testator had one or more children living when the testator executed the
will and the will devised property or an interest in property to one or more of the
then-living children, an omitted child is entitled to share in the testator's estate as
follows:
(a) The portion of the testator's estate in which the omitted child is entitled to
share is limited to devises made to the testator's then-living children under the will.
(b) As limited under subdivision (a) of this paragraph, the omitted child is
entitled to receive the share of the testator's estate that the child would have received
if the testator had included all omitted children with the children to whom devises were
made under the will and had given an equal share of the estate to each child.
B. To the extent feasible, the interest granted an omitted child under subsection
A, paragraph 2 of this section shall be of the same character, whether equitable or
legal, present or future, as that devised to the testator's then-living children under
the will.
C. In satisfying a share prescribed by subsection A, paragraph 2 of this section,
devises to the testator's children who were living when the will was executed abate
ratably. In abating the devises of the then-living children, the court shall preserve to
the maximum extent possible the character of the testamentary plan adopted by the
testator.
D. Subsection A of this section does not apply if either of the following is true:
1. It appears from the will that the omission was intentional.
2. The testator provided for the omitted child by transfer outside the will and the
intent that the transfer be in lieu of a testamentary provision is shown by the
testator's statements or can be reasonably inferred from the amount of the transfer or
other evidence.
E. If at the time the testator executed the will the testator fails to provide by
will for a living child solely because the testator believes the child to be dead, the
child is entitled to share in the estate as if the child were an omitted after-born or
after-adopted child.
F. In satisfying a share provided by subsection A, paragraph 1 of this section,
devises made by the will abate under section 14-3902.
G. For the purposes of this section, "omitted child" means a child who was born or
adopted after the testator executed a will.
14-2401 Applicable law
This article applies to the estate of a decedent who dies domiciled in this
state. Rights to homestead allowance, exempt property and family allowance for a
decedent who is not domiciled in this state at the time of death are governed by the law
of the decedent's domicile at death.
14-2402 Homestead allowance
A. A decedent's surviving spouse is entitled to a homestead allowance of eighteen
thousand dollars. If there is no surviving spouse each minor child and each dependent
child of the decedent are entitled to a homestead allowance of eighteen thousand dollars
divided by the number of minor and dependent children of the decedent.
B. The homestead allowance is exempt from and has priority over all claims against
the estate, except expenses of administration.
C. The homestead allowance is chargeable against any benefit or share that passes
to the surviving spouse or minor or dependent child by the decedent's will, by nonprobate
transfer pursuant to section 14-6102 or by intestate succession, unless it is otherwise
provided by the decedent's will or by the governing instrument for a nonprobate transfer.
To determine the homestead allowance under this section, a survivorship interest in a
joint tenancy of real estate is considered a nonprobate transfer pursuant to section
14-6102.
14-2403 Exempt property; value; priority
A. In addition to the homestead allowance, the decedent's surviving spouse is
entitled from the estate to a value that is not more than seven thousand dollars in
excess of any security interests in that estate in the following:
1. Household furniture.
2. Automobiles.
3. Furnishings.
4. Appliances.
5. Personal effects.
B. If there is no surviving spouse the decedent's minor and dependent children are
entitled jointly to the same value as prescribed in subsection A of this section.
C. If encumbered chattels are selected and the value in excess of security
interests and that of other exempt property is less than seven thousand dollars or if
there is not seven thousand dollars worth of exempt property in the estate, the spouse or
minor or dependent children are entitled to any other assets of the estate to the extent
necessary to make up the seven thousand dollar value.
D. Rights to exempt property and assets needed to make up a deficiency of exempt
property have priority over all claims against the estate except expenses of
administration. The right to any assets to make up a deficiency of exempt property
abates as necessary to permit earlier payment of the homestead allowance and family
allowance. These rights are chargeable against any benefit or share passing to the
surviving spouse or minor or dependent children by the decedent's will by a nonprobate
transfer pursuant to section 14-6102 or by intestate succession, unless otherwise
provided by the decedent's will or by the governing instrument for a nonprobate transfer.
14-2404 Family allowance; use; length; priority; termination by death
A. The decedent's surviving spouse and minor children whom the decedent was
obligated to support and children who were in fact being supported by the decedent are
entitled to a reasonable allowance in money out of the estate for their maintenance
during the period of administration. This allowance shall not continue for longer than
one year if the estate is inadequate to discharge allowed claims. The allowance may be
paid as a lump sum or in periodic installments. It is payable to the surviving spouse,
if living, for the use of the surviving spouse and minor and dependent
children. Otherwise this allowance is payable to the children or to persons who have the
care and custody of these children. If a minor child or a dependent child is not living
with the surviving spouse, the allowance may be made partially to the child or the
child's guardian or other person who has the care and custody of the child and partially
to the spouse, as their needs may appear.
B. The family allowance is exempt from and has priority over all claims except
expenses of administration and except the homestead allowance.
C. The family allowance is chargeable against any benefit or share passing to the
surviving spouse or children by the decedent's will, by a nonprobate transfer pursuant to
section 14-6102 or by intestate succession unless otherwise provided by the decedent's
will or by the governing instrument for a nonprobate transfer.
D. The death of a person entitled to the family allowance terminates the right to
allowances not yet paid.
14-2405 Homestead; exempt property and allowances; restriction; source; determination; documentation
A. If the estate is otherwise sufficient, property specifically devised may not be
used to satisfy rights to homestead allowance or exempt property. Subject to this
restriction, the surviving spouse, guardians of minor children or children who are adults
may select property of the estate as homestead allowance and exempt property. The
personal representative may make those selections if the surviving spouse, the children
or the guardians of the minor children are unable or fail to do so within a reasonable
time or if there is no guardian of a minor child.
B. The personal representative may execute an instrument or deed of distribution to
establish the ownership of property taken as homestead allowance or exempt property.
C. The personal representative may determine the family allowance in a lump sum
that does not exceed twelve thousand dollars or in periodic installments that do not
exceed one thousand dollars per month for one year, and may disburse monies of the estate
in payment of the family allowance and any part of the homestead allowance payable in
cash.
D. The personal representative or an interested person aggrieved by any selection,
determination, payment, proposed payment or failure to act under this section may
petition the court for appropriate relief including a family allowance other than one
that the personal representative determined or could have determined.
14-2501 Who may make a will
A person who is eighteen years of age or older and who is of sound mind may make a
will.
14-2502 Execution; witnessed wills; holographic wills
A. Except as provided in sections 14-2503, 14-2506 and 14-2513, a will shall be:
1. In writing.
2. Signed by the testator or in the testator's name by some other individual in the
testator's conscious presence and by the testator's direction.
3. Signed by at least two people, each of whom signed within a reasonable time
after that person witnessed either the signing of the will as described in paragraph 2 or
the testator's acknowledgment of that signature or acknowledgment of the will.
B. Intent that the document constitute the testator's will can be established by
extrinsic evidence, including, for holographic wills under section 14-2503, portions of
the document that are not in the testator's handwriting.
14-2503 Holographic will
A will that does not comply with section 14-2502 is valid as a holographic will,
whether or not witnessed, if the signature and the material provisions are in the
handwriting of the testator.
14-2504 Self-proved wills; sample form; signature requirements
A. A will may be simultaneously executed, attested and made self-proved by its
acknowledgment by the testator and by affidavits of the witnesses if the acknowledgment
and affidavits are made before an officer authorized to administer oaths under the laws
of the state in which execution occurs and are evidenced by the officer's certificate,
under official seal, in substantially the following form:
I, _______________, the testator, sign my name to this instrument this _____ day of
_______________, and being first duly sworn, do declare to the undersigned authority that
I sign and execute this instrument as my will and that I sign it willingly, or willingly
direct another to sign for me, that I execute it as my free and voluntary act for the
purposes expressed in that document and that I am eighteen years of age or older, of
sound mind and under no constraint or undue influence.
_______________________
Testator
We, _______________, _______________, the witnesses, sign our names to this
instrument being first duly sworn and do declare to the undersigned authority that the
testator signs and executes this instrument as his/her will and that he/she signs it
willingly, or willingly directs another to sign for him/her, and that each of us, in the
presence and hearing of the testator, signs this will as witness to the testator's
signing and that to the best of our knowledge the testator is eighteen years of age or
older, of sound mind and under no constraint or undue influence.
____________________
Witness
____________________
Witness
The State of ______________
County of _________________
Subscribed, sworn to and acknowledged before me by _______________, the testator,
and subscribed and sworn to before me by _______________ and _______________, witnesses,
this _____ day of _______________.
(Seal)
(Signed)______________________
______________________________
(Official capacity of officer)
B. An attested will may be made self-proved at any time after its execution by its
acknowledgment by the testator and the affidavits of the witnesses, each made before an
officer authorized to administer oaths under the laws of the state in which the
acknowledgment occurs and evidenced by the officer's certificate, under the official
seal, attached or annexed to the will in substantially the following form:
The State of _______________
County of __________________
We, _____________________, _____________________ and _______________, the testator
and the witnesses, respectively, whose names are signed to the attached or foregoing
instrument being first duly sworn do declare to the undersigned authority that the
testator signed and executed the instrument as the testator's will and that he/she signed
willingly, or willingly directed another to sign for him/her, and that he/she executed it
as his/her free and voluntary act for the purposes expressed in that document, and that
each of the witnesses, in the presence and hearing of the testator, signed the will as
witness and that to the best of his/her knowledge the testator was at that time eighteen
years of age or older, of sound mind and under no constraint or undue influence.
_________________________
Testator
_________________________
Witness
_________________________
Witness
Subscribed, sworn to and acknowledged before me by _______________, the testator,
and subscribed and sworn to before me by _______________ and _______________, witnesses,
this _____ day of _______________.
(Seal)
(Signed)______________________
______________________________
(Official capacity of officer)
C. A signature affixed to a self-proving affidavit attached to a will is considered
a signature affixed to the will, if necessary to prove the will's due execution.
14-2505 Witnesses; requirements
A. A person who is generally competent to be a witness may act as a witness to a
will.
B. The signing of a will by an interested witness does not invalidate the will or
any provision of it.
14-2506 Execution; choice of law
A written will is valid if executed in compliance with section 14-2502 or if its
execution complies with the law at the time of execution of the place where the will is
executed, or of the law of the place where at the time of execution or at the time of
death the testator is domiciled, has a place of abode or is a national.
14-2507 Revocation of will; requirements
A. A testator may revoke a will in whole or in part:
1. By executing a subsequent will that revokes the previous will or part expressly
or by inconsistency.
2. By performing a revocatory act on the will if the testator performs the act with
this intent or if another person performs the act in the testator's conscious presence
and by the testator's direction. For purposes of this paragraph, "revocatory act on the
will" includes burning, tearing, canceling, obliterating or destroying the will or any
part of it. A burning, tearing or canceling is a revocatory act on the will whether or
not the burn, tear or cancellation touched any of the words on the will.
B. If a subsequent will does not expressly revoke a previous will, the execution of
the subsequent will wholly revokes the previous will by inconsistency if the testator
intended the subsequent will to replace rather than supplement the previous will.
C. The testator is presumed to have intended a subsequent will to replace rather
than supplement a previous will if the subsequent will makes a complete disposition of
the testator's estate. If this presumption arises and is not rebutted by clear and
convincing evidence, the previous will is revoked and only the subsequent will is
operative on the testator's death.
D. The testator is presumed to have intended a subsequent will to supplement rather
than replace a previous will if the subsequent will does not make a complete disposition
of the testator's estate. If this presumption arises and is not rebutted by clear and
convincing evidence, the subsequent will revokes the previous will only to the extent the
subsequent will is inconsistent with the previous will and each will is fully operative
on the testator's death to the extent they are not inconsistent.
14-2508 Change of circumstances; effect on will
Except as provided in sections 14-2803 and 14-2804, a change of circumstances does
not revoke a will or any part of it.
14-2509 Revoking a subsequent will; effect; reviving a revoked will; requirements
A. If a testator revokes a subsequent will that wholly revoked a previous will
under section 14-2507, subsection A, paragraph 2, the previous will remains revoked
unless it is revived. The previous will is revived if it is evident from the
circumstances of the revocation of the subsequent will or from the testator's
contemporary or subsequent declarations that the testator intended the previous will to
take effect as executed.
B. If a testator revokes a subsequent will that partly revoked a previous will
under section 14-2507, subsection A, paragraph 2, the revoked part of the previous will
is revived unless it is evident from the circumstances of the revocation of the
subsequent will or from the testator's contemporary or subsequent declarations that the
testator did not intend the revoked part to take effect as executed.
C. If a testator revokes a subsequent will that revoked a previous will in whole or
in part by another later will, the previous will remains revoked in whole or in part,
unless the testator revives it or its revoked part. The previous will or its revoked
part is revived to the extent it appears from the terms of the later will that the
testator intended the previous will to take effect.
14-2510 Incorporating outside document into a will; requirements
A testator may incorporate a written document into the testator's will by reference
if the following requirements are met:
1. The document exists at the time the testator executes the will.
2. The will's language manifests the testator's intent to incorporate this
document.
3. The will's language describes the document with enough specificity to allow its
identification.
14-2511 Testamentary additions to trusts; requirements; effect of revocation
A. A will may validly devise property to the trustee of a trust established or to
be established:
1. During the testator's lifetime by the testator alone, by the testator and some
other person or by some other person, including a funded or unfunded life insurance
trust, even if the settlor has reserved any or all rights of ownership of the insurance
contracts.
2. At the testator's death by the testator's devise to the trustee if the trust is
identified in the testator's will and its terms are set forth in a written instrument
other than a will executed before, concurrently with or after the execution of the
testator's will or in another individual's will if that other individual has predeceased
the testator, regardless of the existence, size or character of the corpus of the
trust. The devise is not invalid because the trust is amendable or revocable or because
the trust was amended after the execution of the will or after the testator's death.
B. Unless the testator's will provides otherwise, property devised to a trust
described in subsection A is not held under a testamentary trust of the testator but
becomes a part of the trust to which it is devised and must be administered and disposed
of in accordance with the provisions of the governing instrument that states the terms of
the trust, including any amendments made before or after the testator's death.
C. Unless the testator's will provides otherwise, a revocation or termination of
the trust before the testator's death causes the devise to lapse.
14-2512 Disposition of property by reference to acts of independent significance
A will may dispose of property by reference to acts, such as the execution or
revocation of another person's will, that have significance apart from their effect on
the dispositions made by the will whether they occur before or after the execution of the
will or before or after the testator's death.
14-2513 References to separate lists; requirements
A. Notwithstanding section 14-2503 relating to holographic wills, a will may refer
to a written statement or list to dispose of items of tangible personal property other
than money and not otherwise specifically disposed of by the will.
B. To be admissible under this section as evidence of the intended disposition, the
writing shall either be in the testator's handwriting or be signed by the testator and
shall describe the items and the devisees with reasonable certainty.
C. The writing may be:
1. Referred to as one to be in existence at the time of the testator's death.
2. Prepared before or after the execution of the will.
3. Altered by the testator after its preparation.
4. A writing that has no significance apart from its effect on the dispositions
made by the will.
14-2514 Contracts regarding wills; requirements; effect
A. After December 31, 1994, a person may enter into a contract to make a will or
devise or not to revoke a will or devise or to die intestate only by:
1. Provisions of a will that state the material provisions of the contract.
2. An express reference in a will to a contract and extrinsic evidence proving the
terms of the contract.
3. A writing signed by the decedent evidencing the contract.
B. The execution of a joint will or mutual wills does not create a presumption of a
contract not to revoke the will or wills.
14-2516 Custodian of will; duties; liability
A. After the death of a testator and on request of an interested person, a person
having custody of a will of the testator shall deliver it with reasonable promptness to a
person able to secure its probate or, if none is known, to an appropriate court.
B. A person who wilfully fails to deliver a will as required by this section is
liable to any person aggrieved for any damages caused by this failure.
C. A person who wilfully refuses or fails to deliver a will after being ordered by
the court in a proceeding brought for the purpose of compelling delivery is subject to
penalty for contempt of court.
14-2517 Penalty clause for contest; restriction
A provision in a will purporting to penalize an interested person for contesting the
will or instituting other proceedings relating to the estate is unenforceable if probable
cause exists for that action.
14-2601 Scope of article
In the absence of a finding of a contrary intention, the rules of construction in
this article control the construction of a will.
14-2602 Passage of existing and after-acquired property by will
A will may provide for the passage of all property the testator owns at death and
all property acquired by the estate after the testator's death.
14-2603 Substitute gifts; class gifts; definitions
A. If a devisee fails to survive the testator and is a grandparent, a descendant of
a grandparent or a stepchild of either the testator or the donor of a power of
appointment exercised by the testator's will, the following apply:
1. Except as provided in paragraph 3 of this subsection, if the devise is not in
the form of a class gift and the deceased devisee leaves surviving descendants, a
substitute gift is created in the devisee's surviving descendants and they take, by
representation, the property to which the devisee would have been entitled if the devisee
had survived the testator.
2. Except as provided in paragraph 3 of this subsection, if the devise is in the
form of a class gift, other than a devise to issue, descendants, heirs of the body,
heirs, next of kin, relatives or family or a class described by similar language, a
substitute gift is created in the surviving descendants of the deceased devisee. The
property to which the devisees would have been entitled if all of them had survived the
testator passes to the surviving devisees and the surviving descendants of the deceased
devisees. Each surviving devisee takes the share to which that person would have been
entitled if the deceased devisees had survived the testator. Each deceased devisee's
surviving descendants who are substituted for the deceased devisee take by representation
the share to which the deceased devisee would have been entitled if the deceased devisee
had survived the testator. For the purposes of this paragraph, "deceased devisee" means
a class member who failed to survive the testator and left one or more surviving
descendants.
3. If the will creates an alternative devise with respect to a devise for which a
substitute gift is created by paragraph 1 or 2 of this subsection, the substitute gift is
superseded by the alternative devise, whether or not an expressly designated devisee of
the alternative devise is entitled to take under the will.
B. Unless the language that creates a power of appointment expressly prohibits the
substitution of the appointee's descendants for the appointee, a surviving descendant of
a deceased appointee can be substituted for the appointee, whether or not the descendant
is an object of the power of appointment.
C. For the purposes of section 14-2601, words of survivorship, such as in a devise
to an individual "if he survives me", or in a devise to "my surviving children", are, in
the absence of clear and convincing evidence to the contrary, a sufficient indication of
an intent contrary to the application of this section.
D. For the purposes of this section:
1. "Alternative devise" means a devise that is expressly created by the will and
under the terms of the will can take effect instead of another devise on the happening of
one or more events, including the survival of the testator or the failure to survive the
testator, whether an event is expressed in condition-precedent, condition-subsequent or
any other form. A residuary clause may constitute an alternative devise with respect to
a nonresiduary devise, whether or not the will specifically provides that, on lapse or
failure, the nonresiduary devise or nonresiduary devises in general pass under the
residuary clause.
2. "Class member" includes a person who fails to survive the testator but who would
have taken under a devise in the form of a class gift if that person had survived the
testator.
3. "Devise" includes an alternative devise, a devise in the form of a class gift
and an exercise of a power of appointment.
4. "Devisee" includes:
(a) A class member if the devise is in the form of a class gift.
(b) A person or class member who was deceased at the time the testator executed the
will as well as a person or class member who was then living but who failed to survive
the testator.
(c) An appointee under a power of appointment exercised by the testator's will.
5. "Stepchild" means a child of the surviving, deceased or former spouse of the
testator or of the donor of a power of appointment and not of the testator or donor.
6. "Surviving devisee" or "surviving descendant" means a devisee or a descendant
who neither predeceased the testator nor is deemed to have predeceased the testator under
section 14-2702.
7. "Testator" includes the donee of a power of appointment if the power is
exercised in the testator's will.
14-2604 Failure of testamentary provision; effect
A. Except as provided in section 14-2603, a devise, other than a residuary devise,
that fails for any reason becomes a part of the residue.
B. Except as provided in section 14-2603, if the residue is devised to two or more
persons, the share of a residuary devisee that fails for any reason passes to the other
residuary devisee or to other residuary devisees in proportion to the interest of each in
the remaining part of the residue.
14-2605 Securities increase in value after death; effect; exception
A. If a testator executes a will that devises securities and the testator then
owned securities that meet the description in the will, the devise includes additional
securities owned by the testator at death to the extent the additional securities were
acquired by the testator after the will was executed as a result of the testator's
ownership of the described securities and are securities of any of the following types:
1. Securities of the same organization acquired by reason of action initiated by
the organization or any successor, related or acquiring organization, excluding any
acquired by exercise of purchase options.
2. Securities of another organization acquired as a result of any merger,
consolidation, reorganization or other distribution by the organization or any successor,
related or acquiring organization.
3. Securities of the same organization acquired as a result of a plan of
reinvestment.
B. Distributions in cash before death with respect to a described security are not
part of the devise.
14-2606 Right to specific devises; unpaid proceeds of sale, condemnation or insurance; sale by conservator or agent
A. A specific devisee has a right to the specifically devised property in the
testator's estate at death and to the following:
1. Any balance of the purchase price, together with any security agreement, owing
from a purchaser to the testator at death by reason of sale of the property.
2. Any amount of a condemnation award for the taking of the property unpaid at
death.
3. Any proceeds unpaid at death on fire or casualty insurance on or other recovery
for injury to the property.
4. Property owned by the testator at death and acquired as a result of foreclosure
or obtained in lieu of foreclosure of the security interest for a specifically devised
obligation.
B. If specifically devised property is sold or mortgaged by a conservator or by an
agent acting within the authority of a durable power of attorney for an incapacitated
principal or if a condemnation award, insurance proceeds or recovery for injury to the
property are paid to a conservator or to an agent acting within the authority of a
durable power of attorney for an incapacitated principal, the specific devisee has the
right to a general pecuniary devise equal to the net sale price, the amount of the unpaid
loan, the condemnation award, the insurance proceeds or the recovery. It is not
necessary to adjudicate the issue of incapacity for an agent to act under this
subsection. An agent's actions that are within the authority of a durable power of
attorney are presumed to be on behalf of the incapacitated principal. For the purposes
of this subsection, "incapacitated principal" means a principal who is an incapacitated
person.
C. The right of a specific devisee under subsection B is reduced by any right the
devisee has under subsection A.
D. The provisions in subsection B that relate to the actions of a conservator do
not apply if, after the sale, mortgage, condemnation, casualty or recovery, it was
adjudicated that the testator's incapacity ceased and the testator survived the
adjudication by one year.
14-2607 Specific devise; nonexoneration
Subject to any mortgage interest existing at the date of death, a specific devise
passes without right of exoneration, regardless of a general directive in the will to pay
debts.
14-2608 Exercise of power of appointment
In the absence of a requirement that a power of appointment be exercised by a
reference or by an express or specific reference to that power, a general residuary
clause in a will or a will making general disposition of all of the testator's property
expresses an intention to exercise a power of appointment held by the testator only if
the power is a general power and the creating instrument does not contain a gift if the
power is not exercised or the testator's will manifests an intention to include the
property subject to the power.
14-2609 Satisfaction of a devise during the testator's life; requirements; valuation
A. Property a testator gave to a person while the testator was alive is treated as
a satisfaction of a devise in whole or in part if any of the following requirements are
met:
1. The will provides for deduction of the gift.
2. The testator declared in a contemporaneous writing that the gift is in
satisfaction of the devise or that its value is to be deducted from the value of the
devise.
3. The devisee acknowledged in writing that the gift is in satisfaction of the
devise or that its value is to be deducted from the value of the devise.
B. For purposes of partial satisfaction, property given while the testator was
alive is valued as of the time the devisee came into possession or enjoyment of the
property or at the testator's death, whichever occurs first.
C. To satisfy the requirements of sections 14-2603 and 14-2604 if the devisee fails
to survive the testator, the gift is treated as a full or partial satisfaction of the
devise, as appropriate, unless the testator's contemporaneous writing provides otherwise.
14-2701 Scope of article
In the absence of a finding of a contrary intention, the rules of construction in
this article control the construction of a governing instrument. The rules of
construction in this article apply to a governing instrument of any type, except as the
application of a particular section is limited by its terms to a specific type or types
of provision or governing instrument.
14-2702 Devisees; surviving of testator; requirement; exception
A. For the purposes of this article, except as provided in subsection D of this
section, a person who is not established by clear and convincing evidence to have
survived an event, including the death of another person, by one hundred twenty hours is
deemed to have predeceased the event.
B. Except as provided in subsection D of this section, for purposes of a provision
of a governing instrument that relates to a person surviving an event, including the
death of another person, a person who is not established by clear and convincing evidence
to have survived the event by one hundred twenty hours is deemed to have predeceased the
event.
C. Except as provided in subsection D of this section, if it is not established by
clear and convincing evidence that one of two co-owners with right of survivorship
survived the other co-owner by one hundred twenty hours, one-half of the property passes
as if one had survived by one hundred twenty hours and one-half as if the other had
survived by one hundred twenty hours, and if there are more than two co-owners and it is
not established by clear and convincing evidence that at least one of them survived the
others by one hundred twenty hours, the property passes in the proportion that one bears
to the whole number of co-owners. For the purposes of this subsection, "co-owners with
right of survivorship" includes joint tenants, tenants by the entireties and other
co-owners of property or accounts held under circumstances that entitle one or more to
the whole of the property or account on the death of the other or others.
D. The survival requirements of this section do not apply if:
1. The governing instrument contains language that deals explicitly with
simultaneous deaths or deaths in a common disaster and that language is operable under
the facts of the case.
2. The governing instrument expressly indicates that a person is not required to
survive an event, including the death of another person, by any specified period or
expressly requires the person to survive the event by a specified period. However,
survival of the event or the specified period must be established by clear and convincing
evidence.
3. The imposition of a one hundred twenty hour requirement of survival would cause
a nonvested property interest or a power of appointment to fail to qualify for validity,
or to become invalid under section 14-2901, subsection A, B or C. However, survival must
be established by clear and convincing evidence.
4. The application of a one hundred twenty hour requirement of survival to multiple
governing instruments would result in an unintended failure or duplication of a
disposition. However, survival must be established by clear and convincing evidence.
E. A payor or other third party is not liable for having made a payment or
transferred an item of property or any other benefit to a beneficiary designated in a
governing instrument who is not entitled to the payment or item of property or for having
taken any other action in good faith reliance on the beneficiary's apparent entitlement
under the terms of the governing instrument, before the payor or other third party
received written notice of a claimed lack of entitlement under this section. A payor or
other third party is liable for a payment made or any other action taken after the payor
or other third party received written notice of a claimed lack of entitlement under this
section.
F. Written notice of a claimed lack of entitlement under subsection E of this
section must be mailed to the payor's or other third party's main office or home by
certified mail, return receipt requested, or served on the payor or other third party in
the same manner as a summons in a civil action. On receipt of written notice of a
claimed lack of entitlement under this section, a payor or other third party may pay any
amount owed or transfer or deposit any item of property held by it to or with the court
having jurisdiction of the probate proceedings relating to the decedent's estate or, if
no proceedings have been commenced, to or with the court having jurisdiction of probate
proceedings relating to decedents' estates located in the county of the decedent's
residence. The court shall hold the monies or item of property and, on making its
determination under this section, shall order disbursement in accordance with the
determination. Payments, transfers or deposits made to or with the court discharge the
payor or other third party from all claims for the value of amounts paid to or items of
property transferred to or deposited with the court.
G. A person who purchases property for value and without notice or who receives any
payment or other item of property in partial or full satisfaction of a legally
enforceable obligation is neither obligated to return the payment, item of property or
benefit nor is liable for the amount of the payment or the value of the item of property
or benefit. However, a person who, not for value, receives a payment, an item of
property or any other benefit to which the person is not entitled is obligated to return
the payment, item of property or benefit or is personally liable for the amount of the
payment or the value of the item of property or benefit to the person who is entitled to
it.
14-2703 Choice of law; effect on governing instrument
The meaning and legal effect of a governing instrument is determined by the local
law of the state selected in the governing instrument unless the application of that law
is contrary to the requirements of article 4 of this chapter relating to exempt property
and allowances or is contrary to any other public policy of this state otherwise
applicable to the disposition.
14-2704 Power of appointment; exercise by reference; presumption
If a governing instrument that creates a power of appointment expressly requires
that the power be exercised by a reference, an express reference or a specific reference
to the power or its source, it is presumed that the donor's intention was to prevent an
inadvertent exercise of the power.
14-2705 Adopted children; children born out of wedlock; class gifts
A. A person who is adopted or born out of wedlock and that person's descendants, if
appropriate to the class, are included in class gifts and other terms of relationship in
accordance with the intestate succession under article 1 of this chapter. Terms of
relationship that do not differentiate relationships by blood from those by affinity,
such as "uncles", "aunts", "nieces" or "nephews", are construed to exclude relatives by
affinity. Terms of relationship that do not differentiate relationships by the half
blood from those by the whole blood, such as "brothers", "sisters", "nieces" or
"nephews", are construed to include both types of relationships.
B. In addition to the requirements of subsection A, in construing a dispositive
provision of a transferor who is not the adopting parent, an adopted person is not
considered the child of the adopting parent unless the adopted person lived while a
minor, either before or after the adoption, as a regular member of the household of the
adopting parent at any time.
14-2706 Failure of beneficiary to survive decedent; effect; protection from liability; third parties; definitions
A. If a beneficiary fails to survive the decedent and is a grandparent, a
descendant of a grandparent or a stepchild of the decedent, the following apply:
1. Except as provided in paragraph 4 of this subsection, if the beneficiary
designation is not in the form of a class gift and the deceased beneficiary leaves
surviving descendants, a substitute gift is created in the beneficiary's surviving
descendants. They take by representation the property to which the beneficiary would
have been entitled if the beneficiary had survived the decedent.
2. Except as provided in paragraph 4 of this subsection, if the beneficiary
designation is in the form of a class gift, other than a beneficiary designation to
issue, descendants, heirs of the body, heirs, next of kin, relatives, or family, or a
class described by similar language, a substitute gift is created in the surviving
descendants of any deceased beneficiary. The property to which the beneficiaries would
have been entitled if all of them had survived the decedent passes to the surviving
beneficiaries and the surviving descendants of the deceased beneficiaries. Each
surviving beneficiary takes the share to which that beneficiary would have been entitled
if the deceased beneficiaries had survived the decedent. Each deceased beneficiary's
surviving descendants who are substituted for the deceased beneficiary take by
representation the share to which the deceased beneficiary would have been entitled if
the deceased beneficiary had survived the decedent. For the purposes of this paragraph,
"deceased beneficiary" means a class member who failed to survive the decedent and who
left one or more surviving descendants.
3. Words of survivorship, such as in a beneficiary designation to an individual "if
he survives me" or in a beneficiary designation to "my surviving children" are, in the
absence of clear and convincing evidence to the contrary, a sufficient indication of an
intent contrary to the application of this section.
4. If a governing instrument creates an alternative beneficiary designation with
respect to a beneficiary designation for which a substitute gift is created by paragraph
1 or 2 of this subsection, the substitute gift is superseded by the alternative
beneficiary designation, whether or not an expressly designated beneficiary of the
alternative beneficiary designation is entitled to take.
B. A payor is protected from liability in making payments under the terms of the
beneficiary designation until the payor has received written notice of a claim to a
substitute gift under this section. Payment made before the receipt of written notice of
a claim to a substitute gift under this section discharges the payor, but not the
recipient, from all claims for the amounts paid. A payor is liable for a payment made
after the payor has received written notice of the claim. A recipient is liable for a
payment received, whether or not written notice of the claim is given.
C. The written notice of the claim must be mailed to the payor's main office or
home by certified mail, return receipt requested, or served on the payor in the same
manner as a summons in a civil action. On receipt of written notice of the claim, a
payor may pay any amount owed by it to the court having jurisdiction of the probate
proceedings relating to the decedent's estate or, if no proceedings have been commenced,
to the court having jurisdiction of probate proceedings relating to decedents' estates
located in the county of the decedent's residence. The court shall hold the monies and,
on its determination under this section, shall order disbursement in accordance with the
determination. Payment made to the court discharges the payor from all claims for the
amounts paid.
D. A person who purchases property for value and without notice or who receives a
payment or other item of property in partial or full satisfaction of a legally
enforceable obligation is neither obligated under this section to return the payment,
item of property or benefit nor is liable under this section for the amount of the
payment or the value of the item of property or benefit. However, a person who, not for
value, receives a payment, an item of property or any other benefit to which the person
is not entitled under this section is obligated to return the payment, item of property
or benefit or is personally liable for the amount of the payment or the value of the item
of property or benefit to the person who is entitled to it under this section.
E. For the purposes of this section:
1. "Alternative beneficiary designation" means a beneficiary designation that is
expressly created by the governing instrument and, under the terms of the governing
instrument, can take effect instead of another beneficiary designation on the happening
of one or more events, including survival of the decedent or failure to survive the
decedent, whether an event is expressed in condition-precedent, condition-subsequent or
any other form.
2. "Beneficiary" means the beneficiary of a beneficiary designation and includes a
class member if the beneficiary designation is in the form of a class gift and also
includes a person or class member who was deceased at the time the beneficiary
designation was executed as well as a person or class member who was then living but who
failed to survive the decedent.
3. "Beneficiary designation" includes an alternative beneficiary designation and a
beneficiary designation in the form of a class gift.
4. "Class member" includes a person who fails to survive the decedent but who would
have taken under a beneficiary designation in the form of a class gift if that person had
survived the decedent.
5. "Stepchild" means a child of the decedent's surviving, deceased or former spouse
and not of the decedent.
6. "Surviving beneficiary" or "surviving descendant" means a beneficiary or a
descendant who neither predeceased the decedent nor is deemed to have predeceased the
decedent under section 14-2702.
14-2707 Future interests; trusts; distribution date; passage of property; alternative future interest; definitions
A. A future interest under the terms of a trust is contingent on the beneficiary
surviving the distribution date. If a beneficiary of a future interest under the terms
of a trust fails to survive the distribution date, the following apply:
1. Except as provided in subsection C of this section, if the future interest is
not in the form of a class gift and the deceased beneficiary leaves surviving
descendants, a substitute gift is created in the beneficiary's surviving
descendants. Surviving descendants take by representation the property to which the
beneficiary would have been entitled if the beneficiary had survived the distribution
date.
2. Except as provided in subsection C of this section, if the future interest is in
the form of a class gift, other than a future interest to issue, descendants, heirs of
the body, heirs, next of kin, relatives, or family or a class described by similar
language, a substitute gift is created in the surviving descendants of any deceased
beneficiary. The property to which the beneficiaries would have been entitled if all of
them had survived the distribution date passes to the surviving beneficiaries and the
surviving descendants of the deceased beneficiaries. Each surviving beneficiary takes
the share to which that person would have been entitled if the deceased beneficiaries had
survived the distribution date. Each deceased beneficiary's surviving descendants who
are substituted for the deceased beneficiary take by representation the share to which
the deceased beneficiary would have been entitled if the deceased beneficiary had
survived the distribution date.
B. Words of survivorship attached to a future interest are, in the absence of clear
and convincing evidence to the contrary, a sufficient indication of an intent contrary to
the application of this section. Words of survivorship include words of survivorship
that relate to the distribution date or to an earlier or an unspecified time, whether
those words of survivorship are expressed in condition-precedent, condition-subsequent or
any other form.
C. If a governing instrument creates an alternative future interest with respect to
a future interest for which a substitute gift is created by subsection A of this section,
the substitute gift is superseded by the alternative future interest, whether or not an
expressly designated beneficiary of the alternative future interest is entitled to take
in possession or enjoyment.
D. If after the application of this section there is no surviving taker, the
property passes in the following order:
1. If the trust was created in a nonresiduary devise in the transferor's will or in
a codicil to the transferor's will, the property passes under the residuary clause in the
transferor's will. For purposes of this paragraph, the residuary clause is treated as
creating a future interest under the terms of a trust.
2. If no taker is produced by the application of paragraph 1 of this subsection,
the property passes to the transferor's heirs under section 14-2711.
E. A residuary clause in a will does not create an alternative future interest with
respect to a future interest created in a nonresiduary devise in the will, whether or not
the will specifically provides that lapsed or failed devises are to pass under the
residuary clause.
F. For the purposes of this section:
1. "Alternative future interest" means an expressly created future interest that
can take effect in possession or enjoyment instead of another future interest on the
happening of one or more events, including survival of an event or failure to survive an
event, whether an event is expressed in condition-precedent, condition-subsequent or any
other form.
2. "Beneficiary" means the beneficiary of a future interest and includes a class
member if the future interest is in the form of a class gift.
3. "Class member" includes a person who does not survive the distribution date but
who would have taken under a future interest in the form of a class gift if that person
had survived the distribution date.
4. "Deceased beneficiary" means a class member who failed to survive the
distribution date and left one or more surviving descendants.
5. "Distribution date", with respect to a future interest, means the time when the
future interest is to take effect in possession or enjoyment. Distribution date does not
mean a date that necessarily occurs at the beginning or end of a calendar day but that
may occur at a time during the course of a day.
6. "Future interest" includes an alternative future interest and a future interest
in the form of a class gift.
7. "Future interest under the terms of a trust" means a future interest that was
created by a transfer creating a trust or to an existing trust or by an exercise of a
power of appointment to an existing trust, directing the continuance of an existing
trust, designating a beneficiary of an existing trust or creating a trust.
8. "Surviving beneficiary" or "surviving descendant" means a beneficiary or a
descendant who neither predeceased the distribution date nor is deemed to have
predeceased the distribution date under section 14-2702.
14-2708 Class gifts to descendants, issue or heirs of the body; form of distribution if none specified
If a class gift in favor of descendants, issue or heirs of the body does not specify
the manner in which the property is to be distributed among the family members who
comprise that class, the property that comprises the class gift is distributed among the
class members who are living when the interest is to take effect in possession or
enjoyment. These class members receive shares they would receive under the applicable
law of intestate succession if the designated ancestor had died intestate owning the
subject matter of the class gift.
14-2709 Property distribution by representation or per capita at each generation; distribution per stirpes; application of section; definitions
A. If an applicable statute or a governing instrument calls for property to be
distributed by representation or per capita at each generation, the property is divided
into as many equal shares as there are surviving descendants in the generation nearest to
the designated ancestor that contains one or more surviving descendants and deceased
descendants in the same generation who left any surviving descendants. Each surviving
descendant in the nearest generation is allocated one share. Any remaining shares are
combined and then divided in the same manner among the surviving descendants of the
deceased descendants as if the surviving descendants who were allocated a share and their
surviving descendants had predeceased the distribution date.
B. If a governing instrument calls for property to be distributed per stirpes, the
property is divided into as many equal shares as there are surviving children of the
designated ancestor and deceased children who left surviving descendants. Each surviving
child is allocated one share. The share of each deceased child with surviving
descendants is divided in the same manner, with subdivision repeating at each succeeding
generation until the property is fully allocated among surviving descendants.
C. For the purposes of subsections A and B of this section, a person who is
deceased and who left no surviving descendant is disregarded. A person who leaves a
surviving ancestor who is a descendant of the designated ancestor is not entitled to a
share.
D. This section applies to governing instruments executed after December 31,
1994. In the case of a codicil to a will, an amendment to a trust or another document
amending a governing instrument, the date of execution is the date of the codicil,
amendment or amending document only if the codicil, amendment or amending document
materially affects the dispositive provision being construed under this section.
E. For the purposes of this section:
1. "Deceased child" or "deceased descendant" means a child or a descendant who
either predeceased the distribution date or is deemed to have predeceased the
distribution date under section 14-2702.
2. "Distribution date" with respect to an interest means the time when the interest
is to take effect in possession or enjoyment. Distribution date does not mean a date
that necessarily occurs at the beginning or end of a calendar day but that may occur at a
time during the course of a day.
3. "Surviving ancestor", "surviving child" or "surviving descendant" means an
ancestor, a child or a descendant who neither predeceased the distribution date nor is
deemed to have predeceased the distribution date under section 14-2702.
14-2710 Worthier title doctrine; nonrecognition
The common law doctrine of worthier title is not recognized in this
state. Therefore, language in a governing instrument that describes the beneficiaries of
a disposition as the transferor's heirs, heirs at law, next of kin, distributees,
relatives, or family, or by similar language, does not create or presumptively create a
reversionary interest in the transferor.
14-2711 Distribution to heirs; effect
A. If an applicable statute or a governing instrument calls for a present or future
distribution to or creates a present or future interest in a designated individual's
heirs, heirs at law, next of kin, relatives, or family, or by similar language, the
property passes to those persons, including the state, who would inherit the designated
individual's intestate estate under the intestate succession law of the designated
individual's domicile if the designated individual died when the disposition is to take
effect in possession or enjoyment. The property passes to those persons in the proportion
described by the laws of intestate succession.
B. If the designated individual's surviving spouse is living but is remarried at
the time the disposition is to take effect in possession or enjoyment, the surviving
spouse is not an heir of the designated individual.
14-2802 Effect of divorce, annulment and decree of separation
A. A person who is divorced from the decedent or whose marriage to the decedent has
been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, that
person is married to the decedent at the time of death. A decree of separation that does
not terminate the status of husband and wife is not a divorce for purposes of this
section.
B. For the purposes of this section, "surviving spouse" does not include:
1. A person who obtains or consents to a final decree or judgment of divorce from
the decedent or an annulment of the marriage if that decree or judgment is not recognized
as valid in this state, unless they subsequently participate in a marriage ceremony
purporting to marry each to the other or live together as husband and wife.
2. A person who, after an invalid decree or judgment of divorce or annulment
obtained by the decedent, participates in a marriage ceremony with a third person.
3. A person who was a party to a valid proceeding concluded by an order purporting
to terminate all marital property rights.
14-2803 Murder of decedent; effect; federal law; definitions
A. A person who feloniously and intentionally kills the decedent forfeits all
benefits under this chapter with respect to the decedent's estate, including an intestate
share, an elective share, an omitted spouse's or child's share, a homestead allowance,
exempt property and a family allowance. If the decedent died intestate, the decedent's
intestate estate passes as if the killer disclaimed that person's intestate share.
B. The felonious and intentional killing of the decedent:
1. Revokes any revocable:
(a) Disposition or appointment of property made by the decedent to the killer in a
governing instrument.
(b) Provision in a governing instrument conferring a general or nongeneral power of
appointment on the killer.
(c) Nomination of the killer in a governing instrument, nominating or appointing
the killer to serve in any fiduciary or representative capacity, including a personal
representative, executor, trustee or agent.
2. Severs the interests of the decedent and killer in property held by them at the
time of the killing as joint tenants with the right of survivorship or as community
property with the right of survivorship, transforming the interests of the decedent and
killer into tenancies in common.
C. A severance under subsection B, paragraph 2 does not affect any third party
interest in property acquired for value and in good faith reliance on an apparent title
by survivorship in the killer unless a writing declaring the severance has been noted,
registered, filed or recorded in records appropriate to the kind and location of the
property that is relied on as evidence of ownership in the ordinary course of
transactions involving that property.
D. Provisions of a governing instrument are given effect as if the killer
disclaimed all provisions revoked by this section or, in the case of a revoked nomination
in a fiduciary or representative capacity, as if the killer predeceased the decedent.
E. A wrongful acquisition of property or interest by a killer not covered by this
section shall be treated in accordance with the principle that a killer cannot profit
from that person's wrong.
F. After all right to appeal has been exhausted, a judgment of conviction
establishing criminal accountability for the felonious and intentional killing of the
decedent conclusively establishes the convicted person as the decedent's killer for
purposes of this section. In the absence of a conviction, the court, on the petition of
an interested person, shall determine whether, under the preponderance of evidence
standard, the person would be found criminally accountable for the felonious and
intentional killing of the decedent. If the court determines under that standard that
the person would be found criminally accountable for the felonious and intentional
killing of the decedent, the determination conclusively establishes that person as the
decedent's killer for purposes of this section.
G. A payor or other third party is not liable for having made a payment or
transferred an item of property or any other benefit to a beneficiary designated in a
governing instrument affected by an intentional and felonious killing or for having taken
any other action in good faith reliance on the validity of the governing instrument on
request and satisfactory proof of the decedent's death and before the payor or other
third party received written notice of a claimed forfeiture or revocation under this
section. Any payor or other third party is liable for a payment made or any other action
taken after the payor or other third party received written notice of a claimed
forfeiture or revocation under this section.
H. Written notice of a claimed forfeiture or revocation under subsection G must be
mailed to the payor's or other third party's main office or home by certified mail,
return receipt requested, or served on the payor or other third party in the same manner
as a summons in a civil action. On receipt of written notice of a claimed forfeiture or
revocation under this section, a payor or any other third party may pay any amount owed
or transfer or deposit any item of property held by it to or with the court having
jurisdiction of the probate proceedings relating to the decedent's estate, or if no
proceedings have been commenced, to or with the court having jurisdiction of probate
proceedings relating to decedents' estates located in the county of the decedent's
residence. The court shall hold the monies or item of property and, on its determination
under this section, shall order disbursement in accordance with the
determination. Payments, transfers or deposits made to or with the court discharge the
payor or other third party from all claims for the value of amounts paid to or items of
property transferred to or deposited with the court.
I. A person who purchases property for value and without notice or who receives a
payment or any other item of property in partial or full satisfaction of a legally
enforceable obligation is neither obligated under this section to return the payment,
item of property or benefit nor is liable under this section for the amount of the
payment or the value of the item of property or benefit. However, a person who, not for
value, receives a payment, an item of property or any other benefit to which the person
is not entitled under this section is obligated to return the payment, item of property
or benefit, or is personally liable for the amount of the payment or the value of the
item of property or benefit, to the person who is entitled to it under this section.
J. If this section or any part of this section is preempted by federal law with
respect to a payment, an item of property or any other benefit covered by this section, a
person who, not for value, receives the payment, item of property or any other benefit to
which the person is not entitled under this section is obligated to return it to the
person who would have been entitled to it if this section or part of this section were
not preempted or is personally liable for the amount of the payment or the value of the
item of property or benefit.
K. For the purposes of this section:
1. "Disposition or appointment of property" includes a transfer of an item of
property or any other benefit to a beneficiary designated in a governing instrument.
2. "Governing instrument" means a governing instrument executed by the decedent.
3. "Revocable", with respect to a disposition, appointment, provision or
nomination, means one under which the decedent, at the time of or immediately before
death, was alone empowered, by law or under the governing instrument, to cancel the
designation in favor of the killer, whether or not the decedent was then empowered to
designate the decedent in place of the decedent's killer or the decedent then had
capacity to exercise the power.
14-2804 Termination of marriage; effect; revocation of probate and nonprobate transfers; federal law; definitions
A. Except as provided by the express terms of a governing instrument, a court order
or a contract relating to the division of the marital estate made between a divorced
couple before or after the marriage, divorce or annulment, the divorce or annulment of a
marriage:
1. Revokes any revocable:
(a) Disposition or appointment of property made by a divorced person to that
person's former spouse in a governing instrument and any disposition or appointment
created by law or in a governing instrument to a relative of the divorced person's former
spouse.
(b) Provision in a governing instrument conferring a general or nongeneral power of
appointment on the divorced person's former spouse or on a relative of the divorced
person's spouse.
(c) Nomination in a governing instrument that nominates a divorced person's former
spouse or a relative of the divorced person's former spouse to serve in any fiduciary or
representative capacity, including a personal representative, executor, trustee,
conservator, agent or guardian.
2. Severs the interests of the former spouses in property held by them at the time
of the divorce or annulment as joint tenants with the right of survivorship or as
community property with the right of survivorship and transforms the interests of the
former spouses into tenancies in common.
B. A severance under subsection A, paragraph 2 of this section does not affect any
third party interest in property acquired for value and in good faith reliance on an
apparent title by survivorship in the survivor of the former spouses unless a writing
declaring the severance has been noted, registered, filed or recorded in records
appropriate to the kind and location of the property that a person relied on as evidence
of ownership in the ordinary course of transactions involving that property.
C. Provisions of a governing instrument are given effect as if the former spouse
and relatives of the former spouse disclaimed all provisions revoked by this section or,
in the case of a revoked nomination in a fiduciary or representative capacity, as if the
former spouse and relatives of the former spouse died immediately before the divorce or
annulment.
D. Provisions revoked solely by this section are revived by the divorced person's
remarriage to the former spouse or by a nullification of the divorce or annulment.
E. No change of circumstances other than as described in this section and in
section 14-2803 effects a revocation.
F. Any payor or other third party is not liable for making a payment or
transferring an item of property or any other benefit to a beneficiary designated in a
governing instrument affected by a divorce, annulment or remarriage, or for taking any
other action in good faith reliance on the validity of the governing instrument, before
the payor or other third party receives written notice of the divorce, annulment or
remarriage. Any payor or other third party is liable for a payment made or any other
action taken after the payor or other third party receives written notice of a claimed
forfeiture or revocation under this section.
G. Written notice of the divorce, annulment or remarriage under subsection F of
this section must be mailed to the payor's or other third party's main office or home by
certified mail, return receipt requested, or served on the payor or other third party in
the same manner as a summons in a civil action. On receipt of written notice of the
divorce, annulment or remarriage, a payor or any other third party may pay any amount
owed or transfer or deposit any item of property held by it to or with the court having
jurisdiction of the probate proceedings relating to the decedent's estate or, if no
proceedings have been commenced, to or with the court having jurisdiction of probate
proceedings relating to decedents' estates located in the county of the decedent's
residence. The court shall hold the monies or item of property and, on its determination
under this section, shall order disbursement or transfer in accordance with the
determination. Payments, transfers or deposits made to or with the court discharge the
payor or other third party from all claims for the value of amounts paid to or items of
property transferred to or deposited with the court.
H. A person who purchases property from a former spouse, a relative of a former
spouse or any other person for value and without notice or who receives from a former
spouse, a relative of a former spouse or any other person a payment or other item of
property in partial or full satisfaction of a legally enforceable obligation is neither
obligated under this section to return the payment, item of property or benefit nor is
liable under this section for the amount of the payment or the value of the item of
property or benefit. However, a former spouse, a relative of a former spouse or any
other person who, not for value, received a payment, an item of property or any other
benefit to which that person is not entitled under this section is obligated to return
the payment, item of property or benefit to the person who is entitled to it under this
section or is personally liable for the amount of the payment or the value of the item of
property or benefit.
I. For the purpose of this section:
1. "Disposition or appointment of property" includes a transfer of an item of
property or any other benefit to a beneficiary designated in a governing instrument.
2. "Divorce or annulment" means any divorce or annulment or any dissolution or
declaration of invalidity of a marriage that would exclude the spouse as a surviving
spouse within the meaning of section 14-2802 but does not include a decree of separation
that does not terminate the status of husband and wife.
3. "Divorced person" includes a person whose marriage has been annulled.
4. "Governing instrument" means an instrument executed by the divorced person
before the divorce or annulment of that person's marriage to that person's former spouse.
5. "Relative of the divorced person's former spouse" means a person who is related
to the divorced person's former spouse by blood, adoption or affinity and who, after the
divorce or annulment, is not related to the divorced person by blood, adoption or
affinity.
6. "Revocable", with respect to a disposition, appointment, provision or
nomination, means one under which the divorced person, at the time of the divorce or
annulment, was alone empowered by law or under the governing instrument to cancel a
designation in favor of that person's former spouse or former spouse's relative, whether
or not the divorced person was then empowered to designate himself or herself in place of
that person's former spouse or in place of the former spouse's relative and whether or
not the divorced person then had the capacity to exercise the power.
14-2901 Nonvested property interest; general power of appointment; validity; exception
A. A nonvested property interest is invalid unless at least one of the following is
true:
1. At the time the interest is created it is certain to vest or to terminate not
later than twenty-one years after the death of a person who is then alive.
2. The interest either vests or terminates within ninety years after its creation.
3. The interest is under a trust whose trustee has the expressed or implied power
to sell the trust assets and at one or more times after the creation of the interest one
or more persons who are living when the trust is created have an unlimited power to
terminate the interest.
B. A general power of appointment that is not presently exercisable because of a
condition precedent is invalid unless either of the following is true:
1. At the time the power is created the condition precedent is certain to be
satisfied or becomes impossible to satisfy no later than twenty-one years after the death
of a person who is then alive.
2. The condition precedent either is satisfied or becomes impossible to satisfy
within ninety years after its creation.
C. A nongeneral power of appointment or a general testamentary power of appointment
is invalid unless:
1. At the time the power is created it is certain to be irrevocably exercised or
otherwise to terminate not later than twenty-one years after the death of a person who is
then alive.
2. The power is irrevocably exercised or otherwise terminates within ninety years
after its creation.
D. In determining whether a nonvested property interest or a power of appointment
is valid under subsection A, paragraph 1, subsection B, paragraph 1 or subsection C,
paragraph 1, the possibility that a child will be born to a person after that person's
death is disregarded.
E. If the governing instrument's language seeks to do either of the following on
the later of either the expiration of a period of time that does not exceed twenty-one
years after the death of the survivor of a specific person who was alive when the trust
or other property arrangement was created or the expiration of a period of time that
exceeds or might exceed twenty-one years after the death of the survivor of a specific
person who was alive when that trust or other property arrangement was created, that
language is inoperative to the extent that it produces a period of time that exceeds
twenty-one years after the death of the survivor:
1. Disallow the vesting or termination of an interest or trust beyond that time.
2. Postpone the vesting or termination of an interest or trust until that time.
14-2902 Nonvested property interest or power of appointment; creation
A. Except as provided in subsections B and C of this section and section 14-2905,
subsection A, the time of creation of a nonvested property interest or a power of
appointment is determined under general principles of property law.
B. If there is a person who alone can exercise a power created by a governing
instrument to become the unqualified beneficial owner of a nonvested property interest or
a property interest subject to a power of appointment described in section 14-2901,
subsection B or C, the nonvested property interest or power of appointment is created
when that person's power to become the unqualified beneficial owner terminates. A joint
power with respect to community property or to marital property held by a married couple
is a power exercisable by one person alone.
C. A nonvested property interest or a power of appointment arising from a transfer
of property to a previously funded trust or any other existing property arrangement is
created when the nonvested property interest or power of appointment in the original
contribution was created.
14-2903 Reformation of a disposition plan; conditions
On the petition of an interested person, a court shall reform a disposition in the
manner that most closely approximates the transferor's manifested plan of distribution
and that is within the ninety years allowed under section 14-2901 if:
1. A nonvested property interest or a power of appointment becomes invalid under
section 14-2901.
2. A class gift is not but might become invalid under section 14-2901 and the time
has arrived when the share of any class member is to take effect in possession or
enjoyment.
3. A nonvested property interest that is not validated by section 14-2901,
subsection A, paragraph 1 can vest but not within ninety years after its creation.
14-2904 Statutory rule against perpetuities; exclusion
This article does not apply to:
1. A nonvested property interest or a power of appointment arising out of a
nondonative transfer, except for a nonvested property interest or a power of appointment
arising out of any of the following:
(a) A premarital or postmarital agreement.
(b) A separation or divorce settlement.
(c) A spouse's election.
(d) A similar arrangement arising out of a prospective, existing or previous
marital relationship between the parties.
(e) A contract to make or not to revoke a will or trust.
(f) A contract to exercise or not to exercise a power of appointment.
(g) A transfer in satisfaction of a duty of support.
(h) A reciprocal transfer.
2. A fiduciary's power relating to the administration or management of assets,
including the power of a fiduciary to sell, lease or mortgage property, and the power of
a fiduciary to determine principal and income.
3. A power to appoint a fiduciary.
4. A discretionary power of a trustee to distribute principal before termination of
a trust to a beneficiary who has an indefeasibly vested interest in the income and
principal.
5. A nonvested property interest held by a charity, government or governmental
agency or subdivision, if the nonvested property interest is preceded by an interest held
by another charity, government or governmental agency or subdivision.
6. A nonvested property interest in or a power of appointment with respect to a
trust or any other property arrangement forming part of any pension, profit sharing,
stock bonus, health, disability, death benefit, income deferral or other current or
deferred benefit plan for one or more employees, independent contractors or their
beneficiaries or spouses, to which contributions are made for the purpose of distributing
to or for the benefit of the participants or their beneficiaries or spouses the property,
income or principal in the trust or other property arrangement, except a nonvested
property interest or a power of appointment that is created by an election of a
participant or a beneficiary or spouse.
7. A property interest, power of appointment or arrangement that was not subject to
the common law rule against perpetuities or is excluded by the laws of this state.
14-2905 Nonvested property interest or power of appointment; creation; effective date; judicial reformation
A. Except as otherwise provided, this article applies to a nonvested property
interest or a power of appointment that is created on or after December 31, 1994.
B. If a nonvested property interest or a power of appointment was created before
December 31, 1994 and is determined in a judicial proceeding, commenced on or after
December 31, 1994, to violate this state's rule against perpetuities as that rule existed
before December 31, 1994, a court on the petition of an interested person may reform the
disposition in the manner that most closely approximates the transferor's manifested plan
of distribution and that is within the limits of the rule against perpetuities applicable
when the nonvested property interest or power of appointment was created.
C. For purposes of this section, a nonvested property interest or a power of
appointment created by the exercise of a power of appointment is created when the power
is irrevocably exercised or when a revocable exercise becomes irrevocable.
14-2906 Rule against perpetuities; supersession
This article applies notwithstanding common law rules against perpetuities or
section 33-261.
14-2907 Honorary trusts; trusts for pets; conditions
A. If a trust is for a specific lawful noncharitable purpose or for lawful
noncharitable purposes to be selected by the trustee and there is no definite or
definitely ascertainable beneficiary designated, the trust may be performed by the
trustee for not longer than twenty-one years whether or not the terms of the trust
contemplate a longer duration.
B. A trust for the care of a designated domestic or pet animal is valid. The trust
terminates when no living animal is covered by the trust. A governing instrument shall
be liberally construed to bring the transfer within this subsection, to presume against
the merely precatory or honorary nature of the disposition and to carry out the general
intent of the transferor. Extrinsic evidence is admissible in determining the
transferor's intent.
C. In addition to the provisions of subsection A or B, a trust created under this
section is subject to the following:
1. Except as expressly provided otherwise in the trust instrument, no portion of
the principal or income may be converted to the use of the trustee or to any use other
than for the trust's purposes or for the benefit of a covered animal.
2. On termination, the trustee shall transfer the unexpended trust property in the
following order:
(a) As directed in the trust instrument.
(b) If the trust was created in a nonresiduary clause in the transferor's will or
in a codicil to the transferor's will, under the residuary clause in the transferor's
will.
(c) If no taker is produced by the application of subdivision (a) or (b) of this
paragraph, to the transferor's heirs under section 14-2711.
3. For the purposes of section 14-2707, the residuary clause is treated as creating
a future interest under the terms of a trust.
4. The intended use of the principal or income can be enforced by a person who is
designated for that purpose in the trust instrument or, if none, by a person appointed by
a court on application to it by any person.
5. Except as ordered by the court or required by the trust instrument, no filing,
report, registration, periodic accounting, separate maintenance of funds, appointment or
fee is required by reason of the existence of the fiduciary relationship of the trustee.
6. A court may reduce the amount of the property transferred if it determines that
amount substantially exceeds the amount required for the intended use. The amount of the
reduction, if any, passes as unexpended trust property under paragraph 2 of this
subsection.
7. If no trustee is designated or no designated trustee is willing or able to
serve, a court shall name a trustee. A court may order the transfer of the property to
another trustee if this is necessary to assure that the intended use is carried out and
if no successor trustee is designated in the trust instrument or if no designated
successor trustee agrees to serve or is able to serve. A court may also make other
orders and determinations that it determines advisable to carry out the intent of the
transferor and this section.
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