State Law

Trusts are often created as an alternative to or in conjunction with a Will. Trusts are today usually considered an estate planning tool. The Uniform Probate Code includes provisions dealing with affairs and estates of the deceased and laws dealing with nontestamentary transfers such as trusts. The theory behind the Code is that wills and trusts are in close relationship and thus in need of unification. Since its creation, over thirty percent of states have adopted most provisions of the Code.

ARIZONA: Without a Will, all property passes to the surviving spouse unless there are children of the decedent. If there are children only the separate property and the one-half of COMMUNITY PROPERTY that belongs to the decedent, passes to the surviving spouse. The remaining goes to the children unless the children are not also children of the surviving spouse in which case one-half of the intestate separate property and all of the community property that belonged to the decedent passes to the children. Creditors have four months to notice the estate regarding claims.

CALIFORNIA: In California Probate STATUTORY attorneys and Personal Representatives’ fees are usually calculated based on the gross value of the estate. California has a simplified legal process known as a spousal confirmation proceeding in which, if no one objects, the court approves the transfer of all assets to the spouse. This procedure can only be used for married couples.

FLORIDA: Florida implemented a number of major changes in its probate code as of January 2002. Florida PUBLIC POLICY protects the spouse and, in some circumstances, children from total disinheritance. Absent a PREMARITAL AGREEMENT, a surviving spouse may have HOMESTEAD rights, elective share rights, family allowance rights, and exempt property rights.

In addition, certain surviving children of the decedent may also have homestead rights, pretermitted child rights, family allowance rights, and exempt property rights.

SOUTH CAROLINA: Without a Will, all assets go to the surviving spouse unless there are children in which case one-half goes to the children. Protective provisions of the South Carolina Probate Code grant a spouse who is left out of a Will an election to take a one-third share of the estate. A similar provision grants a share to a child who is left out of a parent’s will written before the child’s birth.

SOUTH DAKOTA: South Dakota has adopted the Uniform Probate Code.

UTAH: Utah has adopted the Uniform Probate Code.

WEST VIRGINIA: Without a Will, all assets go to the surviving spouse unless there are children in which case one-half goes to the children. If there is a Will, the surviving spouse can also renounce the Will and take the elective share instead. The elective share depends on the length of the marriage. Renouncing the Will requires that papers be filed with a court within certain time frames.

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