Probate and the Military: What's It All About?

• Author: Major Steven F. Laneaster
• Pages: 01

Zr this article. Mapr Lalieaster reviews the probate laws of the various StQteS in light of the peculiar problems faced by military families, who routinely have diwrsity of citirenship rtthin m e family, and property scattered over seveml states.

Appended to the article w e tabulor anQ/yseS of there-gutrements of the uanous States for d t d execution of wills. and related matters, for the use of legal assistance oflteers engaged zn estate planntng.

1. INTRODUCTION

   Judge advocate officers serving as legal assistance officers are often asked by their clients to explain probate and to help them avoid it. At the same time many clients are concerned with the validity of their wills and the effect that being in the Amed Forces has on their ability to determine the distribution of their ameta at death. The answers to these questions are not aluays easily or quickly reached.

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   *The opiniana and mnciumn% erprebsed in this article are fhoee of the author and do not neeesrarily refleet the view of The Judge Advocate General's School. the Department of the Army, or m y other governmental agency.=* JAGC. U S Army. Instructor and ~ e n m

   ~nsiruefor,

   Administrative and Civil

   Law Division. The Judge Advocate Generaps School, Chariortesviiie, Virpnia, 1975 LO preaent Former chief trial counsel. Offlee of rhe Staff Judge Advocate, Headqunrrers, 26th Infantry Division, Sehofleid Barracks, Hawaii, 1972.76. B.B A , 1967. Uniuersty ai Satre Dame. J D., 1970, Indiana Univeraity School ai Law Completed 24th Advanced IGmdunteI Course, 1975, The Judge Advocate Generais School Member of the Bars of Indiana, the United States Army Courtof Miiitar) Revieu. the United States Distncf Court lor the Southern Distrlet of Indiana, and the United Slates Supreme Court Author of Disruption in the Courtmom' The T,avbicsomr De/mdoni. 75 Mil L Rev. a5 l1977l

   In answering this type of inquiry the legal assistance officer must decide what probate law6 apply to his client's estate, whether probate will be required, with what will-execution laws the client muet comply, how probate will affect the client's estate, and what he can do to help his client to avoid probate or to make it as simple a procedure as possible..

   The purpose af this article is to aid legal assiatance officers inanswering their clients' questions about probate and wills. This is accomplished by reviewing the law of wills and the law of probate, aummarizing the various state laws governing them, and proposing a standard procedure for will execution. The purpose and effect of the Uniform Probate Code i d 1 be discussed and a recommendation for simplifying will and probate law as related to military personnel will be offered

   In pursuing the above purposes the reader is asked to consider the following words of Mr. Justice Holmes:

   It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.'

   11. IN THE BEGINNING

   A legal assistance client who asks about probate ia usually in the process of having a will prepared. It is also at this time that the legal assistance officer becomes concerned about the vanou8 state will and probate laws. For these reasons the problems surrounding wills and will drafting will be discussed first.

   1. HISTORY OF WILLS

      The use of a will a8 a means of disposing of title to property, both real and personal. st death, develdped as a part of the English

      LHolme~. The Pnrh of the Lau. 10 Harr L Rei 469 11897).

      common law. It8 modern development can be traced back to the English Statute of Frauds.% The Statute of Frauds required a nritten will ta dispose of title to land but not to dispose of personal

      Some one hundred fifty years later the English Wills Act was enacted.' This statute set forth the procedural steps necessary to fallow in preparing B will disposing not only of real property but also of personal property.s

      All fifty states have passed legislation which generally follows the basic procedural rules outlined in the English Statute of Frauds and the Wills Act.B The word "generally," as used above, eorrectly describes the problem created by each state passing its own legislation which sets out the requirements for a valid will. The statutes vary substantially from state to state as to testamentary capacity, age of testator, type of will, number of witnesses, and availability of self-proving elauses.

   2. PROBLEM CREATED

      Because of variations in state statutory requirements for execution of a valid will, the following question is often asked: IB the will

      "E Seoles & E Halback, Jr ,Problems o,id Matr~iols

      07% Decedrnfr' Estalrs oiid

      IAlll devises and bequests of any landa 01 fenemenla. devisable eitherbi force oi the stature of wills, or bv this statute, 01 bv ioree oi the Custom oi Kent. or the eumm of any borough. or an) other particular cu~tom. shall be in wnfmg. and signed by the part) 80 devisine the same. OT by inme other person I" his presence and by his express dwee-f i o m and shall be arrested and subscribed in the presence of the said devisor by three or four credible witnesses, or eke they shall be utfeily void and af nm lslel efieet ' E Scoler & E Halback. Jr . supra note 2, at 100lW~lle Act 1831, 7 Wm 1 7 and 1 Vicf , c 26. see 1X. ahich atarei in relevant oar,.

      INlo will shall be valid unlers it shall be in writing and executed ~n man-ml(

      hereinafter mentioned. [that I I to ~ay.1

      it shall be signed at the Foot

      or End thereof by the Testator, or by some other Person in hia Presenceand by his Direction. and sueh ~ignaiure shall be made OT acknoxledgedby the Testam in the Preaenee of Two 01 Mars Witnesses present at the same Time. and sueh Wiines~es shall attest and shall bubrcribe the Willm the Presence ai the Testator. but no Form of Aitebfatmn ahall be necessary.'E Scales & E Halbaek. Jr ,supra note 2, at 100, where lr IS stared, ''except that all American ~ f s f u f e ~ like the English Villa her. treat real and peraanal propert) alike 60 far 86 afteared will8 are concerned."

      Tmats 100 (2d ed 1973).>Statute of Frauds. 1617. 29 Car. 11. c 3. SIC. Y. uhich reads as io1lou.a'

      I am now- executing going to be valid in my domiciliary state, in all states, or only in this state?' The answer to this question is critical when it is considered what is meant by probate. A more detailed discussion of probate is given later in this article; but for now, let it suffice to say that the first step in a probate proceeding is to determine the validity of any existing will.

      The common law rule is to determine the validity of a uill disposing of land based on the law of the situs of the lands and the validity of a will disposing of personal property based on the law of the decedent's domicile at death.g The consequence af this common law rule is graphically illustrated in the ease of French u. Short.'O In that case the decedent w a ~ a Florida domiciliary when he died, awning real and personal property in both Virginia and Florida. He left a holographic will" which the Florida court refused to admit to probate because it did not meet the requirements of the Florida Statute of Wills. The same holographic will was offered for probate in Virginia and accepted by the court in probate to determine the disposition af the real estate located in Virginia. Under Virginia law the holographic will wa8 a valid will. The court in Virginia did not admit the holographic will for the purpose of determining the disposition of Dersonal DroDertv located in Vireinia. ruling that Florida

      . . "

      lau governed the validity of a will disposing of personal property of

      B domiciliary of Florida.

      This case points out the uncertainty which the common lau rule creates for a military testator who is domiciled in one state, lives in another state, and ovns land in still another. To insure that a sen-icemember's will meets the statutory requirements to be accepted as valid and admitted into probate, the legal assistance officer m u t h a w in what state the servicemember is domiciled, the location of any real property, and the State in which the servicemember is as- ,L Averill. Vnifarm Probate Coda I" B llufnhell 72 11978)

      'Restatement (Seeand) of Conflict of Lava see 239 (1971) "Rule 13 applicable IOquertions relating k eapaeify of person to make will, formal wlidit? of %ill required form of will, and manner of exeevfian ' Id , Comment a

      "207 Vn. 548, 151 S E Zd 3Ed (1966)

      ""A Wll or deed written entirely by the testator 01 eranfor with his D U ~ hand

      BlaeWs Laa Dictlanari 865 (Rev 4th ed 1968)

      Seolea & E. Halbaik, Jr.. ~upra note 2, at 107

      signed. He must then check the laus of each of these states for executing wills and be sure to comply with them when preparing and executing the will. When this is accomplished he may then tell the servicemember, with some degree of confidence, where the will he has prepared and the servicemember has executed is valid and will be admitted into probate

      Appendix I consists of a table which summarizes the general procedural rule8 required to execute a valid will in each state and the District of Columbia. Covered in the chart are requirements for age of testator, testamentary capacity, signature, and number af witnesses, and also where there is provision for a self-praving clause.12 The table point8 out the differences in state law for executing a will. Legal assistance officers can u8e this table as a starting paint in determining what is required to prepare and execute a valid will far servicemembers.

      Some states have modified the common law rule discussed above and simplified the problem. This has been accomplished by permitting a aili ahich has been admitted to probate in another state to be admitted into probate in the local courts, if either of two conditions is satisfied.

      The will mmt have been executed according to the statutory...