Estate law is a subgenre of property law which governs the manner in which an individual’s estate is managed. This includes overseeing how that person’s property is managed in both their lifetime, as well as after they have died or have become incapacitated. Specifically, the term “estate” refers to all of an individual’s personal belongings, real property, and intangible assets. This could include patents or copyrights. Any debt and taxes on the property owned may also be included as part of the estate.
Because of this, estate law covers a broad range of legal matters, including nearly anything relating to a person’s real property and its financial aspects. It often overlaps with laws concerning wills and trusts, as well as the rules that govern estate planning.
As estate law is a broad field of law, it covers a wide variety of matters. Some of the most common examples include:
- Estate Planning: Estate planning serves as a guide to others regarding how a decedent’s property will be distributed upon death or incapacitation. This includes: will and trust issues, organ donation, legal guardian matters, medical treatments, and funeral arrangements;
- Estate Administration: Estate administration specifically relates to the process of managing and distributing a person’s estate after they die. This might be handled by their designated “executor”, or if they died without a will, their property will be distributed according to the laws set out in their particular jurisdiction;
- Duties of the Executor: An executor, also referred to as an administrator, is legally responsible for fulfilling specific duties related to the wishes of the decedent. They must carry out what is stated in the decedent’s will; and
- Distribution of Property: The way in which property is distributed to the rightful beneficiaries is the ultimate goal of estate planning.
- Debt: any debts that an individual still owes must be addressed, even after they have become incapacitated or deceased.
Additionally, estate laws are based on the local and state statutes in a particular jurisdiction. As such, they will often vary depending on the state involved.
What Is an Affidavit of Domicile? When Is an Affidavit of Domicile Needed?
Under wills and estates law, an affidavit of domicile is a legal document which certifies the previous residence of a deceased person. This is a document that has been notified and certified as true by the person signing it. Generally speaking, it is the executor of estate that will be signing the document in order to confirm the deceased person’s residence.
This specific affidavit generally states important information such as where the deceased person lived, and for how long. This information can be important due to the fact that it can often determine which state laws are applicable in any given case.
An affidavit of domicile is required anytime there must be legal proof of the deceased person’s residence. In most cases, such an issue would occur when the executor needs to transfer certain assets that the person left behind, especially stocks or securities. Oftentimes, the broker who processed the stocks may require an affidavit in order to verify where the person lived. Once the affidavit is provided, the assets can be transferred according to the will or the court’s instructions.
Of course, an estate attorney can assist in this process. However, there are various places in which you may find the affidavit to fill out on your own. You would use such forms in order to state where the decedent lived, and for how long. Some form providers will also assist in filling out the required information, as well as provide instructions regarding how to have the document signed and notarized.
What If I Have a Legal Dispute Over the Decedent’s Will?
Will disputes, or will contests, can often be resolved through an affidavit of domicile. An example of this would be how there may be a dispute over which beneficiary is entitled to a transfer of property. In some cases, state laws can affect the outcome of property distributions; if so, the court and the involved parties can benefit from having clear information regarding the previous residence of the decedent.
There is a specific process that must be completed before a will may be disputed. Upon the testator’s death, the will may be submitted to a court in order to be probated, or proven. To probate a will is to distribute the decedent’s property in accordance with the will’s terms. The probate proceeding is the means through which the judge gives the legal approval to the distribution, and begins with submitting the will to a probate court.
The person who submits the will for probate is known as the executor, as previously discussed. The will may contain a provision which names a specific person as executor. Whoever is named as executor is responsible for filing a petition to probate the will with the probate court. That provision is accompanied by a notice of petition, or, notice of probate. This is an announcement that the will has been submitted for probate.
The purpose of a notice of petition is to provide notice to individuals who have an interest in the estate that the probate process is being initiated. This generally involves those individuals named as beneficiaries, and are people to whom the testator left property in the will.
What Are the Grounds for Disputing a Will? How Are Will Disputes Resolved?
The contents of a will are most commonly disputed by beneficiaries. However, the will may also be disputed by individuals or entities that have not been named as beneficiaries, but who nonetheless believe they are entitled to a portion of decedent’s estate.
There are many circumstances in which ground for disputing a will are established. A few examples of such circumstances include:
- An person believes that the asset or property distribution they received in the will was not the distribution, in amount or type, to which they were entitled;
- The place of death is decedent is unclear, in which case an affidavit of domicile would be appropriate;
- A beneficiary dies during the probate process;
- A beneficiary predeceases the testator;
- One or more items comprising the decedent’s property or assets does not physically exist at the time of the decedent’s death. A common example of this would be when a decedent creates a will, and leaves an item of jewelry to a person. The decedent then sells the jewelry without updating the will to reflect the fact that the jewelry is no longer part of the estate; or
- One or more items of property owned by the decedent at the time of their death are not accounted for in the will.
If a will dispute cannot be resolved informally, it is generally resolved during the course of the probate proceeding. While probate proceedings can be initiated at any time after the testator’s death, the proceedings themselves may take months, or even years. In the event of a dispute, the role of the probate judge is to apply the relevant law to best meet the decedent’s wishes.
Should I Hire a Lawyer Concerning an Affidavit of Domicile?
Because will disputes are often difficult to resolve, you should consult with a local probate lawyer if you are facing any legal issues. Alternatively, if you need to secure an affidavit of domicile, an experienced and local probate attorney can help you in that area as well.
As can be seen, a local attorney will be best suited to understanding the laws and requirements of your state, as well as how that may affect your case. An attorney can also inform you of how to fill out and certify an affidavit, as well as represent you in court as needed.