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Wills & Thrills > Bars to Succession (Wills + Intestacy) > Flashcards

Bars to Succession (Wills + Intestacy) Flashcards

1
Q

6 types

BARS TO SUCCESSION

A
  1. Advancement
  2. Homicide
  3. Disclaimer/renunciation
  4. Negative disinheritance
  5. Divorce
  6. Parental misconduct
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2
Q

advancement

BARS TO SUCCESSION

A

= 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

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3
Q

aliens

BARS TO SUCCESSION

A

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)

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4
Q

divorce

BARS TO SUCCESSION

A

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

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5
Q

2 tn inheritance types

PARENTAL MISCONDUCT

A
  1. Inheritance from child to parents

2. Inheritance from nonmarital child to father

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6
Q

tn inheritance from child to parents

PARENTAL MISCONDUCT

A

child support must be paid in full or parent cannot inherit

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7
Q

tn inheritance from nonmarital child to father

PARENTAL MISCONDUCT

A

adjudication of paternity in probate proceedings = insufficient to allow father or ‘s kindred to inherit from or though child UNLESS

  1. father has openly treated the child as the father’s AND
  2. father has not refused to support the child
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8
Q

tn rule

NEGATIVE DISINHERITANCE

A

disinheritance clause ineffective

= T may disinherit heir ONLY BY GIVING PROPERTY TO OTHERS

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9
Q

tn effect of words excluding heir

NEGATIVE DISINHERITANCE

A

Mere words excluding the heir = do not disinherit

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10
Q

5 considerations

ADVANCEMENT

A
  1. Common law = lifetime gift to child presumptively an advancement
  2. Modern law = common law presumption reversed
  3. Procedure if advancement found
  4. Advance predeceases intestate
  5. Advancement valued at time of gift
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11
Q

modern law

ADVANCEMENT

A

reverses common law presumption for advancement = lifetime gift is presumptively NOT an advancement

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12
Q

tn/majority rule

ADVANCEMENT

A

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

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13
Q

advancee predeceases

ADVANCEMENT

A

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

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14
Q

tn advancement value timing

ADVANCEMENT

A

Property advance = valued EITHER
a. as of time child came into possession OR
b. as of time of decedent’s death
whichever occurs FIRST

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15
Q

majority advancement value timing

ADVANCEMENT

A
  • 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
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16
Q

homicide

BARS TO SUCCESSION

A

slayer statutes bb

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17
Q

tn forfeiture of inheritance by killer

HOMICIDE

A

AKA slayer rule

Individual who feloniously and intentionally kills the decedent forfeits all benefits with respect to decedent’s estate, including

  1. intestate share
  2. elective share
  3. omitted spouses’s or child’s share
  4. homestead allowance
  5. exempt property
  6. family allowance
18
Q

tn effect to intestacy

HOMICIDE

A

property passes as though the killer predeceased the victim

if decedent died intestate

19
Q

tn revocatory effect

HOMICIDE

A

revokes any revocable

  1. disposition/appointment of property made by decedent to killer in governing instrument
  2. provision in governing instrument conferring a general or nongeneral power of appointment on killer
  3. nomination of killer in a governing instrument to sever in any fiduciary/representation capacity, including
    a. personal rep
    b. executor
    c. trustee or agent
20
Q

tn joint ownership

HOMICIDE

A 
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)
21
Q

2 ways to prove killing

HOMICIDE

A
  1. final judgment of conviction of murder in any degree = conclusive proof
  2. probate court determines by a PREPONDERANCE of the evidence whether killing was unlawful or intentional
22
Q

proof of killing

HOMICIDE

A

court may determine by a PREPONDERANCE of the evidence whether the killing was unlawful or intentional

(or conviction, duh)

23
Q

6 basic rules

DISCLAIMER/RENUNCIATION

A
  1. Disclaimed interest PASSES as though disclaimant PREDECEASED decedent
  2. Must be in WRITING, IRREVOCABLE, and timely filed
  3. Disclaimer may be made ON BEHALF of infant, incompetent, or decedent
  4. Estopped from disclaiming if any benefits accepted
  5. Disclaimer of life estate ACCELERATES REMAINDER
24
Q

tn rule

DISCLAIMER/RENUNCIATION

A

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

25
Q

tn 6 persons who can disclaim

DISCLAIMER/RENUNCIATION

A

Disclaimer may be made by

  1. Personal rep
  2. Trustee
  3. Guardian
  4. Conservator
  5. Attorney in fact
  6. Custodial parent if minor w/o appointed legal guardian
26
Q

tn requirements

DISCLAIMER/RENUNCIATION

A

disclaimer must be

  1. In writing
  2. Irrevocable
  3. Timely filed
27
Q

tn 3 requirements of writing

DISCLAIMER/RENUNCIATION

A

writing must

  1. describe property/interest/power disclaimed
  2. be signed by person disclaiming (or rep)
  3. declare disclaimer and extent of disclaimer
28
Q

tn timely filing

DISCLAIMER/RENUNCIATION

A

disclaimer must be filed EITHER
a. within 9 months of the decedent’s death OR
b. on day on which person turns 21
whichever is LATER

29
Q

timing for joint tenants

DISCLAIMER/RENUNCIATION

A

surviving joint tenant must disclaim portion of tenancy acquired by right of survivorship within 9 months from other joint tenant’s death

30
Q

timing for future interests

DISCLAIMER/RENUNCIATION

A

to avoid federal gift tax = interest must be disclaimed within 9 months of its creation

(some states allow disclaimer of future interest within 9 months of its vesting in possession AKA within 9 months after life tenant’s death)

31
Q

estoppel if any benefits accepted

DISCLAIMER/RENUNCIATION

A

an interest cannot be disclaimed if the heir or beneficiary has accepted the property or any of its benefits

32
Q

creditor’s claims

DISCLAIMER/RENUNCIATION

A

majority = disclaimer can be used to defeat creditor’s claims

UPC = disclaimer cannot be used to defeat a federal tax lien

33
Q

majority reasoning for creditor rule

DISCLAIMER/RENUNCIATION

A

effect of the disclaimer is that the property passes as though the disclaimant predeceased the decedent
= the disclaimant has no interest that can be reached by creditors

34
Q

acceleration principle

DISCLAIMER/RENUNCIATION

A

upon disclaimer of preceding interest, future interest held by person other than disclaimant takes effect as if the disclaimant had died
= disclaimer of life estate accelerates remainder
BUT future interest held by disclaimant is not accelerated in possession or enjoyment

35
Q

acceleration of life estate

DISCLAIMER/RENUNCIATION

A

YES, disclaimer of life estate accelerates remainder

36
Q

acceleration of future interest

DISCLAIMER/RENUNCIATION

A

NO, future interest held by disclaimant is not accelerated in possession or enjoyment

37
Q

tn acceleration exception

DISCLAIMER/RENUNCIATION

A

acceleration principle applies

UNLESS decedent otherwise indicated by will

38
Q

applicable law

EXAM INSTRUCTIONS

A
  1. wills = tn (compare to UTC)
    intestacy = tn (compare to UTC)
  2. trusts = UTC (or majority if UTC silent)
  3. non-probate transfers = majority
  4. powers of appointment = majority
  5. uniform prudent investment act = adopted by tn
  6. uniform principle and income act = adopted by tn
39
Q

how does issue take when advancee dies?

ADVANCEMENT

A

TN = issue takes full share (advancement has no effect)

40
Q

how does issue take when advancee disclaims?

ADVANCEMENT

A

TN = issue takes share subject to advancement

Wills & Thrills (12 decks)

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