Laws Applicable to Wills

Laws applicable to wills help property owners ensure that upon death their property is disposed in accordance with their intentions and wishes. Every state can promulgate laws relating to original probate of wills and to control how property can be transferred in accordance with wills.  State courts can also lay down standards regarding who can take property and who cannot.

In cases where a decedent and his/her property are situated in two different states, the courts of the state where the property is situated can distribute the property in accordance with the decedent’s will.  The courts can also order the property to be transmitted to a decedent’s representatives.  Issues of conflict of laws arise when a will is probated in one state and the property is situated in another.  Courts of the states where a will is probated or property is situated will have to apply other state laws in order to determine questions like capacity of persons and validity of wills.

The general rule is that the law of the state where the testator domiciled at the time of his/her death will govern wills relating to personal property[i].  However any questions relating to actual transmission of tangible personal property will be resolved in accordance with the laws of the state where the property is situated.

Laws relating to wills in certain specific situations are as detailed below[ii]:

  1. With respect to an individual’s personal property, whether the individual died testate or intestate will be determined by the law of the decedent’s domicile;
  2. With respect to an individual’s real property, whether the individual died testate or intestate will be determined by the law of the decedent’s domicile;
  3. Courts where a testator domiciled will have the power to determine questions like whether a will designates an executor and, if it does, whether the executor is to be approved or disapproved.

[i] In re Will of McDougal, 55 N.J. Super. 36 (App.Div. 1959)

[ii] Lozier v. Lozier, 99 Ohio St. 254 (Ohio 1919)


Inside Laws Applicable to Wills