Bars to Succession Common to Intestacy and Wills

Question 1

1) SIMULTANEOUS DEATH

Answer 1

HEIR MUST ESTABLISH SURVIVORSHIP BY 120 HOURS TO TAKE FROM DECEDENT - done so by clear and convincing evidence

***A person must survive an intestate decedent by 120 hours to take as an heir.

Failure to survive for the period results in the party being treated as having PREDECEASED the decedent.

Absent a contrary provision in the governing instrument, this statute also applies to all types of donative transfers: survivorship estates, transfer-on-death and pay-on-death transfers, life insurance policies, pension plans, deeds, wills, and trusts.

Question 2

How does one establish that they have survived for 120 hours?

Answer 2

Survival for the 120-hour period must be established by clear and convincing evidence.

Question 3

when does the 120 hour rule not apply?

Answer 3

it does not apply if the property would escheat to the commonwealth

Question 4

if a written will contains survivorship language - the language in professional drafter will will prevail

Answer 4

see issue arise in intestacy or holier

Question 5

2) disclaimer!

Answer 5

you may refuse to accept an inheritance by effectively disclaiming the interest ; acceptance of a gratuitous transfer is usually presumed.

A beneficiary or heir may disclaim an interest that otherwise would pass to them from the decedents estate

Question 6

how does the disclaimed interests then pass once disclaimed?

Answer 6

the disclaimed interests passes as though the disclaiming party died immediately before the decedent.

Question 7

what happens if a party disclaims a LIFETIME gift?

Answer 7

if the party disclaims a lifetime gift, the property passes as though the disclaiming had died before the transfer was made.

Question 8

joint tenant / tenant by the entirety

Answer 8

a surviving joint tenant or tenant by the entirety may disclaim any interest passing by right of survivorship.

If the survivorship estate was created by the decedent or if the survivor did not furnish any consideration in creating the estate, the survivor may disclaim the entire interest.

A spendthrift provision has no effect on the right to disclaim.

Question 9

how to make a valid disclaimer?

Answer 9

a valid disclaimer 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

Question 10

“BE DELIVERED”

Answer 10

A disclaimer of an interest created under a will or the intestacy laws must be delivered to the personal representative of the estate.

A disclaimer of an interest in a trust must be delivered to the trustee.

Question 11

“be in a writing or other record”

Answer 11

If the disclaimer is of real property, a copy of the disclaimer must be recorded in the county where the land is located.

Question 12

is there a time limit in making a disclaimer?

Answer 12

Virginia imposes no time limit on making a disclaimer.

However, the right to disclaim is BARRED if the beneficiary or heir accepts the property or any of its benefits, enters into a contract for the property’s sale, or assigns or mortgages the interest.

Question 13

what are some reasons to disclaim?

Answer 13

a) burden
b) creditors
c) change of circumstances

Question 14

a) burden

Answer 14

Property may be disclaimed if incidents of ownership are too burdensome for the beneficiary. For example, inheriting a piece of property with toxic waste that must be remediated.

Question 15

b) creditors

Answer 15

Disclaimer may NOT be used to defeat a federal tax lien, but it may be used to avoid collection by a creditor. A valid disclaimer is not considered a fraudulent transfer.

Question 16

c) change of circumstances

Answer 16

Even with the best planning, date of death is generally uncertain and unforeseen circumstances may arise, requiring a different distribution of the estate.

Question 17

3) homicide / slayer statutes

Answer 17

if someone is guilty of an INTENTIONAL and FELONIOUS killing - they are barred from inheriting and are treated as if they had predeceased the victim.

A person CONVICTED OF (or determined by the PREPONDERANCE OF THE EVIDENCE to have committed/ had the intent to commit) MURDER or VOLUNTARY MANSLAUGHTER FORFEITS all interests in the victim’s estate.

The estate or interests is distributed as though the slayer predeceased the victim

Question 18

does a slayer take by right of survivorship?

Answer 18

If one joint owner in a joint tenancy with right of survivorship, tenancy by the entirety, or joint bank account kills the other, the killer loses the benefits of the right of survivorship.

The estate is converted into a tenancy in common, and the murdered decedent’s interest passes under their will or by intestacy.

Question 19

who else is barred under the slayer statute?

Answer 19

Transferees, assignees, and other persons claiming through the slayer are also barred.

However, the anti-lapse statute applies to any interest bequeathed to the slayer, so that the slayer’s descendants are substituted as takers

Question 20

what if both husband and wife die within 120 hours of one another?

Answer 20

then each will be treated as predeceasing the other for the limited purpose of the disposition of their respective estates

Question 21

what if a charge is reduced down (and no longer a felony)?

Answer 21

This is not dispositive for a probate court –> probate court could still find a felonious and intentional killing occurred - through a ‘preponderance of the evidence’ finding that they had an intent to kill

and then the anti-lapse statute will apply

Question 22

what about bona fide purchasers who purchase from the slayer?

Answer 22

A bona fide purchaser from the slayer is protected IF the purchase occurs before the interests of the slayer have been adjudicated.

Question 23

what is another type of remedy in theses ‘slayer’ situations?? (constructive trust)

Answer 23

A constructive trust MAY be imposed on property received by a beneficiary or heir who participates in the willful and unlawful killing of another (for example, is an accessory after the fact).