Bars to Succession: Common to Intestacy and Wills Flashcards
Survival
Must survive 120 hours to take as heir or beneficiary. Failure to survive for the period results in the party being treated as having predeceased the decedent.
*Survival must be established by clear and convincing evidence
Disclaimers
A beneficiary or heir may disclaim an interest that otherwise would pass to them from the decedent’s estate. The disclaimed interest passes as though the disclaiming party died immediately before the decedent.
Party Disclaims Lifetime Gift
If a party disclaims a lifetime gift, the property passes as though the disclaiming had died before the transfer was made.
A surviving joint tenant or tenant by the entirety may disclaim any interest passing by right of survivorship.
Procedure for Making Disclaimer
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
Disclaimer Time Limit
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.
Reasons to Disclaim:
- Burden - Property may be disclaimed if incidents of ownership are too burdensome.
- Creditors - Disclaimer may not be used to defeat a federal tax lien, but it may be used to avoid collection by a creditor.
- Change of Circumstances
Slayer Statute
A person convicted of (or determined by a preponderance of the evidence) to have committed murder or involuntary manslaughter forfeits all interests in the victim’s estate.
Slayer does not take by Right of Survivorship
Anti-Lapse Statute as Applied to Slayer Statute
The anti-lapse statute applies to any interest bequeathed to the slayer so that the slayer’s descendants are substituted as takers.
