Estate Planning Information from Attorney Douglas Kuthy
This post is one of a series I am writing to educate people about estate planning and probate law. To follow these posts sequentially please visit my Estate Planning Blog.
I hope that this information is helpful to you.
A Brief History of Inheritance Laws
Property to be distributed after death is an “Estate”. A person must understand some of the history of inheritance law in order to understand estate planning.
Throughout history various cultures evolved different systems for inheritance. Four basic systems evolved. The first is primogeniture – where the oldest male inherits. A second is ultimogeniture – where the youngest male inherits. And the third is partible inheritance – equal division among male children. Finally, although most ancient cultures excluded unmarried women from inheriting, property provisions for widows to inherit were common – at a price. Most widows were compelled to marry a surviving brother of their deceased husband.
The Influence of england
Our laws follow the inheritance laws of feudal England. The King was the only person who “owned” real estate in Feudal England. He would reward his faithful noble men with grants of land by his “deed”. This award was not absolute. The King could seize the property for treason, felony, failure to pay taxes, or failure to render military service. (A modern reflection of this appears when a property owner fails to pay their real estate taxes!)
The nobleman could transfer an “interest” in land while he lived. Interests could be a complete transfer or a joint interest. In addition, the nobleman could create a “terminable” interest. Terminable interests are leases, rights to live on the property during a person’s life (commonly called a “life estate”) or mortgages (giving the property as conditional security in exchange for a debt). Upon expiration of the terminable interest the full interest would revert to the property owner while he was alive.
Feudal England followed the primogeniture model. At death all property, and any terminable interests, would pass to the oldest surviving son as his inheritance. If there was a widow a special interest, called a dower interest, which was superior to the oldest male son’s interest in the property, would vest her with the right to dwell on the property during her lifetime. In addition, if there was no son, the property would then pass to relatives of the deceased. Finally, if there were no surviving the property would revert to the King. This system was transferred to our country before the revolution.
What does all of this have to do with estate planning?
The history of Feudal England rules us from its grave. Because we have no King the feudal system was modified. In our country property escheats to the state. In addition, as time passed, married womans property rights statutes were passed in all states giving women the rights to own and transfer property in their own names.
It is essential to understand that if you do not engage in Estate Planning the state does it for you. Joint tenancies, mortgages, and other arrangements you make will govern your real estate. State statutes will determine who inherits your personal property. If you have no family your property will escheat to the state. I will discuss these subjects in more detail in upcoming blogs.
If you want to see additional in depth information on this topic you can find it here: https://en.wikipedia.org/wiki/Historical_inheritance_systems