State Statutes for Estate Planning?

June 10, 2013 5:16 PM

How do I find authoritative but digestible (to a lay person) information regarding state statutes for specific legal issues?

I'm interested in learning about testamentary capacity and finding lots of info on federal guidelines pretty easily, but they all recommend consulting state law as it can supposedly vary somewhat significantly. However, I'm not having much luck turning up anything state-specific that is both 1) comprehensible (i.e., google searches are turning up some case law stuff, but I can't make heads or tails of it) and 2) authoratative-ish (i.e., I'm getting some hits on legal blogs and so forth, but nothing really solid).

Ideally, what I'm looking for is a resource that will say: in state X, state law varies from federal in that yyy (e.g., testamentary capacity is not presumed unless zzz), based on A vs. B, 1992. Or something to that effect.

Would love to avoid paying a lawyer for now if possible (at this point this is a conceptual rather than actual legal issue for me) and would appreciate any advice on resources. IL if that makes a difference.

Thanks in advance

posted by jimmysmits to Law & Government (4 answers total)

Go to a law library. The kinds of cross-referencing tables that would help you are often produced by the major law publishers and may cost money that only law libraries and law firms are likely to spend.
posted by pantarei70 at 5:33 PM on June 10, 2013 [1 favorite]

Best answer: Illinois testamentary capacity:

The Probate Act (755 ILCS 5) says anyone at least 18 years old, and “of sound mind and memory,” can “bequeath by will the real and personal estate” that they have at the time of their death. Lawyers refer to the mental ability to make a will as “testamentary capacity.” It’s someone’s ability to know and understand, and not necessarily what they actually knew or understood.

Cases say someone has the legal capacity to make a will if they’re able to know and understand: (1) what a will is and what it’s doing; (2) the property they own; and (3) “the natural object of their bounty.” That last one means someone had the ability to know who their heirs might be, even if they did not in fact know who they were.

A sound mind can have some flaws. Someone can be delusional, or have a guardian who pays their bills and cares for them, and still have testamentary capacity. For example, one case said an elderly woman who sometimes thought she played for the Harlem Globetrotters still had the capacity to understand her estate and bequeath it by will.

If you need to find information on many states, most county courthouses in Illinois have libraries that you, as a member of the public, can access (you can't check out books, though; you're looking at a long day of reading at tables and Xeroxing). Here's Cook County's. Many of the law schools in Illinois also allow members of the public to access their law libraries though, again, usually you cannot check out books. If you go at slow times, you can get the librarian's help locating these comparative resources, though if you go when the library is full of students you will be a low priority for them. (Fewer law firms maintain physical law libraries these days because everything's online.)

You might also google Legal Aid for each state; this is the sort of thing that they often have information available in an article written for layman (as in the link above from Illinois Legal Aid).
posted by Eyebrows McGee at 5:55 PM on June 10, 2013

Do a search on Google Scholar, Legal Documents for the phrase you want, then narrow it down by state. Most of these principles are developed as concepts of common law, meaning shaped by court decisions over time, not statutes. The decided cases typically discuss applicable statutes and previous cases that they may (or may not) follow.
posted by megatherium at 7:10 PM on June 10, 2013

google scholar + state statute is usually enough for me. estate and probate stuff is often a messy mix of statutes, court rules, and caselaw, so it can be tough (i do estate tax, so I'm in the law enough to know how ugly). for background I often start with a technical term and just search google for PDFs, which is a decent way of pinpointing ABA outlines, whitepapers by law firms, etc. a nice state specific outline is a jackpot.

note that this stuff is all state law, so there won't be any federal law on point. there may be a majority state rule or model code, though.
posted by jpe at 7:17 PM on June 10, 2013