Genealogy And The Law

Legal Terms You Should Know: H - K








HALF BLOOD - Half brothers and sisters
Siblings of the half blood have only one common parent. Those who descend from the same parents are said to be brothers and sisters by the "whole blood." Brothers and sisters of the half blood do not inherit equally, In the absence of a provision to the contrary, each will inherit from his natural parents and will taken nothing from his "step" parent.

Lovingood had been married twice and had two sets of children. The mother of the second set was decidedly the richer of the two. At her death without a will, even though she had been a good and loving mother to both sets of children, only the second set inherited property from her. The first set of children were greatly chagrined.

HEIR - One who inherits personal property
There was at Common Law a definite distinction between heir and "next of kin." Heir meant the person who received personal property upon the death of the person owning the personal property. The person(s) who received real property was/were "next of kin." In recent times the word heir has lost its technical distinction and is used to refer to anyone who receives any kind of property.

Clem lived in one of those states that l had some crazy Common Law provisions about heirs and next of kin. When he died, his land went to his children and his cattle and farm equipment went to his wife. It didn't make any sense, but his children were his next of kin, and his wife was his heir. Real estate followed the blood line, which did not include the wife.

HEREDITAMENT - Any inheritable property
The term hereditament is usually used in connection with the sale of land. At Common Law hereditament also included certain heirlooms and furniture which by custom were deemed to pass with the land, as well as growing crops.

Paul Peevers had a contract to sell his 100 acre farm. The contract said, "All lands and hereditament attached thereto." Before the sale, he decided to move a small building from the tract being sold onto another tract that he owned. The buyer went up in smoke. He sued and won because the word "hereditament" included all buildings regardless of size.

HOLOGRAPHIC WILL - Hand-written will
A holographic will must be written entirely in the handwriting of the person making the will. It is not necessary that it be in any particular form, but it must be clear that it was intended to be a will. Its terms must be sufficiently clear to dispose of the property. To be valid in most states, a holographic will must be signed and dated. It is not necessary that there be witnesses.

Goober Peay was not feeling well. He was a little short of writing paper too. He peeled the label off a can of Campbell soup and wrote, "All that I have I leave to my honey MaggiSue." He signed his name and stuck the paper in a drawer. Goober died without making another will. MaggiSue was the first on the scene to claim her inheritance. Goober's children filed suit to have the will declared invalid. They won. Goober had failed to date the will. There was nothing wrong with the writing or the paper either, but omitting the date was a fatal error.

HOMESTEAD - The family residence
In probate law homestead is generally considered to be the house and adjoining land where the head of the family lives. In most states, homestead passes to the widow upon the death of her husband. It is exempt from the claims of creditors of the estate.

The homestead interest that a wife takes at the death of her husband is similar to dower. The difference is that homestead includes the dwelling, while dower does not necessarily include the dwelling. As a practical matter, dower is usually physically expanded to include homestead. Minor children are also entitled to homestead, free from the claims of creditors.

In some states a widow will lose her homestead upon her remarriage. She may also forfeit her right to homestead by her misconduct or by abandonment.

In ancient times, homestead was measured in terms of a dollar amount. A widow might be entitled to homestead not to exceed the value of $5,000. Due to the difficulty in equating homestead to a dollar figure, modern law tends to define homestead as a specific dollar amount without regard to the residence.

When John died, the probate court appointed a committee of three men to divide up his property among his wife and children and to "lay off" his wife's homestead and dower. They measured off a third for the wife and included the house, the run-down old shack that it was, in the wife's part. That was her homestead and dower.

HYPOTHECATION - Pledge of collateral
When property is pledged to secure a loan, there is said to be a hypothecation of collateral. It also means a mortgage, such as, when money is borrowed and land is mortgaged to secure the loan. Hypothecation has the technical connotation, largely lost in time, that there is no delivery of the collateral to the lender, such as, when stock is presented as collateral to a loan and not actually placed in the hands of the lender. In case of default, the lender would have a "right" to sell the collateral without actually having it to sell. This lack of delivery can present practical problems.

Wally Wallace needed some money to buy his kids school clothes. He went to his friendly banker. The banker asked for collateral. Wally offered his prize Angus bull. The banker took it although the bull would not fit in the bank's collateral vault. Wally defaulted on the loan. The banker had a hard time rounding up his bull, but he finally captured the bull and had a freezer full of beef steaks for a while.


INCOMPETENT - Unable to manage one's affairs
To be declared legally incompetent, there must be a legal proceeding. Once a person is declared to be legally incompetent, he so remains until he legally has his competence restored. Such a legal proceeding is similar to one in which he was originally declared to be incompetent. Under old law to be legally incompetent, there must really be some mental impairment. Mere old age and physical frailty are not sufficient to constitute incompetency. Modern law recognizes different levels of competence and affords for more flexibility in dealing with incompetent persons than in the old days.

Grandpa was getting a little senile. His busy-body daughter-in-law decided to have him declared incompetent and have herself appoint conservator to handle his affairs. A hearing was held in court. The judge determined that Grandpa had more sense than the daughter-in-law and decided to leave well enough alone.

INCORPORATION BY REFERENCE - Inclusion of one document into another
The law allows one to incorporate into his will a legal document, which is separate from the will. This inclusion is called incorporation by reference. The rule makes it unnecessary for the document to be set forth verbatim in the will.

For incorporation by reference to be effective three things are necessary:

(1) The will must clearly refer to the document;
(2) The document must have been in existence at the time the will was signed; and
(3) At probate it must be proved that the document is the one referred to in the will.

If the above criteria are met, the document incorporated by reference becomes a part of the will as fully as if it were set forth word for word in the will.

Sam was ready to make a will. His wife had died a couple of years before. He liked the way her will was written. It was in existence and had been probated. He simply referred to that will in his own will. It was incorporated by reference into his will. Saved him the trouble of having to write all that out.

INDEFEASIBLE - That which cannot be defeated
The term indefeasible is used to describe a right that cannot be taken away from one, such as a property right. One who has a vested remainder interest in property has an indefeasible right to the property at some point in time. If he or she were dead at that time, his or her heirs would take the property in his or her stead.

The will said, "All I have I leave to my wife for her lifetime and after her death to my children living at my death or their heirs." The children's interests were indefeasible. If they were living at their father's death, they would inherit at their mother's later death. If one or more of them did not outlive the mother, their heirs would inherit in their place.

INFANT - A minor
An infant is one who has not arrived at legal age and, consequently, is not deemed to be capable of handling his or her own affairs. Legal age is set by state law. In some states, as at Common Law, the age is 21. In other states, one is deemed to have become an adult and emerged from infancy when he or she reaches the age of 18. Some events may terminate infancy automatically, such as, marriage and employment outside the home.

INTER VIVOS - Between the living
An inter vivos transfer is to be distinguished from a "testamentary" transfer. If there is a transfer of land by deed from one living person to another living person, the transfer is said to be an inter vivos transfer. On the other hand, if a living person receives property by will, the transfer is said to be "testamentary." Trusts may be either inter vivos or testamentary according to whether they are created by a document executed by a living person or by the will of a deceased person. Inter vivos trusts are also called "living trusts."

Olen has only one child. His wife has died. He knows that he wants this only son to inherit the farm. Olen decides he will just go ahead and deed it to him while he is still living. He does so. That was an inter vivos transfer of the property.

INTESTATE - To die without a will
In respect to having a will or not having a will, there are only two ways a person can die, that is, "testate" or "intestate." When one dies with a will, he or she dies "testate;" and when he or she dies without a will, he or she dies "intestate."


JOINT TENANCY - Undivided interest in property
It is possible for two or more persons to own a piece of property. Their interests in the property are said to be "undivided" or "joint interests." One of the three kinds of joint ownerships is joint tenancy, which is an undivided interest in property that carries "right of survivorship." The interest of the deceased owner at his death passes to the surviving owner by "right of survivorship." The same would be true in a joint checking or savings account or stocks registered jointly.

While joint owners are both living, they are said to be "joint tenants." As such, they own undivided interests in the property. Each is entitled to certain rights, each having the right to possess the land and to enjoy its benefits. Each has a right to sell his or her undivided interest, although, admittedly, it would not be extremely salable because of its indefinite duration.

It is to be noted that the heirs of the first joint owner to die receive nothing. But the heirs of the last to die take the entire property interest. It is, thus, that many injustices arise, especially in respect to second marriages.

Walt was a lonely widower. He met a lively young widow, much his junior. They tied the knot. On the way home from the wedding the new bride suggested that they stop at the bank and add her name to Walt's bank accounts. They did. Her name was added as "joint survivor." Trying to keep up with his young wife was too much for Walt. He died of a heart attack. When his children went to the bank to check on his money, they found that the young widow had withdrawn the money and skipped town. It does not take much to see the moral to that story.


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