Bars to Succession Common to Intestacy and Wills

Question 1

What is the rule on timing (in terms of survival)

Answer 1

Must survive intestate decedent by 120 hours, or will be treated as having predeceased decedent
* Standard is clear and convincing evidence

Question 2

What may a party do if they don’t want the interest that would otherwise pass to them through decedent’s estate and what is the effect of this action?

Answer 2

Disclaim it–passes as though disclaiming party died immediately before decedent
* If lifetime gift, property passes as though disclaimant had died before transfer was made

Question 3

Procedure for Disclaimer

Answer 3

Must:
1. Be in writing or other record
2. Declare the disclaimer
3. Describe the interest being disclaimed
4. Be signed by the disclaiming party AND
5. Be delivered
* If created under will or intestacy, deliver to personal representative of estate
* If an interest in trust, must be delivered to trustee
* If of real property, copy of disclaimer must be recorded in the county where the land is located
NOTE that VA has no time limit on disclaimer, but barred if beneficiary acccepts property or any benefits from it

Question 4

Slayer Statute and Effects

Answer 4

A person convicted (or determined by preponderance of the evidence) to have committed a murder or voluntary manslaughter forfeits all interest in victim’s estate
* Distributed as though slayer predeceased victim
* Trick–watch if charge is reduced (e.g., “malicious mischief) because that doesn’t preclude a finding of intentional felonious killing by probate court