Bars to Succession (Wills + Intestacy) Flashcards
6 types
BARS TO SUCCESSION
- Advancement
- Homicide
- Disclaimer/renunciation
- Negative disinheritance
- Divorce
- Parental misconduct
advancement
BARS TO SUCCESSION
= a lifetime gift made to an heir with the intent that the gift be applied against any share the heir inherits from the donor’s estate
aliens
BARS TO SUCCESSION
UPC and TN = no individual is disqualified to take because of being alien or because taking through alien
(TN = aliens may dispose/transmit property same as native citizen)
divorce
BARS TO SUCCESSION
TN = divorce or annulment terminate status as spouse unless re-married at time of D’s death
AKA can’t take as surviving spouse in intestacy
2 tn inheritance types
PARENTAL MISCONDUCT
- Inheritance from child to parents
2. Inheritance from nonmarital child to father
tn inheritance from child to parents
PARENTAL MISCONDUCT
child support must be paid in full or parent cannot inherit
tn inheritance from nonmarital child to father
PARENTAL MISCONDUCT
adjudication of paternity in probate proceedings = insufficient to allow father or ‘s kindred to inherit from or though child UNLESS
- father has openly treated the child as the father’s AND
- father has not refused to support the child
tn rule
NEGATIVE DISINHERITANCE
disinheritance clause ineffective
= T may disinherit heir ONLY BY GIVING PROPERTY TO OTHERS
tn effect of words excluding heir
NEGATIVE DISINHERITANCE
Mere words excluding the heir = do not disinherit
5 considerations
ADVANCEMENT
- Common law = lifetime gift to child presumptively an advancement
- Modern law = common law presumption reversed
- Procedure if advancement found
- Advance predeceases intestate
- Advancement valued at time of gift
modern law
ADVANCEMENT
reverses common law presumption for advancement = lifetime gift is presumptively NOT an advancement
tn/majority rule
ADVANCEMENT
If an individual dies intestate, property given to a child of decedent = advancement again child’s intestate share ONLY IF
a. Decedent declare in a contemporaneous writing that gift is an advance OR
b. Child acknowledges in writing that gift is advance OR
c. Either one otherwise indicates that gift is to be taken into account in computing division/distribution of D’s intestate estate
advancee predeceases
ADVANCEMENT
general = an advancement is binding upon those who succeed to the estate of the advancee
UPC = advancement is not binding on a predeceased heir’s successors UNLESS required writing/acknowledgement specifically provides otherwise
tn advancement value timing
ADVANCEMENT
Property advance = valued EITHER
a. as of time child came into possession OR
b. as of time of decedent’s death
whichever occurs FIRST
majority advancement value timing
ADVANCEMENT
- Value of an advancement is determined as of the time the gift was made
- Any fluctuations in the value of the advanced property will not affect the position of the next of kin
homicide
BARS TO SUCCESSION
slayer statutes bb
tn forfeiture of inheritance by killer
HOMICIDE
AKA slayer rule
Individual who feloniously and intentionally kills the decedent forfeits all benefits with respect to decedent’s estate, including
- intestate share
- elective share
- omitted spouses’s or child’s share
- homestead allowance
- exempt property
- family allowance
tn effect to intestacy
HOMICIDE
property passes as though the killer predeceased the victim
if decedent died intestate
tn revocatory effect
HOMICIDE
revokes any revocable
- disposition/appointment of property made by decedent to killer in governing instrument
- provision in governing instrument conferring a general or nongeneral power of appointment on killer
- nomination of killer in a governing instrument to sever in any fiduciary/representation capacity, including
a. personal rep
b. executor
c. trustee or agent
tn joint ownership
HOMICIDE
if one joint owner in a. joint tenancy b. tenancy by the entirety c. joint bank account kills the other = the killer loses the benefits of the right of survivorship (transforming the interests of D and killer into equal tenancies in common)
2 ways to prove killing
HOMICIDE
- final judgment of conviction of murder in any degree = conclusive proof
- probate court determines by a PREPONDERANCE of the evidence whether killing was unlawful or intentional
proof of killing
HOMICIDE
court may determine by a PREPONDERANCE of the evidence whether the killing was unlawful or intentional
(or conviction, duh)
6 basic rules
DISCLAIMER/RENUNCIATION
- Disclaimed interest PASSES as though disclaimant PREDECEASED decedent
- Must be in WRITING, IRREVOCABLE, and timely filed
- Disclaimer may be made ON BEHALF of infant, incompetent, or decedent
- Estopped from disclaiming if any benefits accepted
- Disclaimer of life estate ACCELERATES REMAINDER
tn rule
DISCLAIMER/RENUNCIATION
Person who is a recipient of property from a decedent’s estate may disclaim all or part of the property, powers, or interest in property
