Definitions; Special Rules for Children; Slayer Statute; Disclaimers Flashcards
What does “decedent’s personal estate” mean? what does it include and not include?
The decedant’s property that is distributed under the will or under the laws of intestacy. It includes real and personal property owned by the decedant at death.
It does not include: (generally called “non-probate transfers”)
* property that passes directly to someoone else by operation of law (e.g., property that is held in a joint tenancy with the right of survivorship), and
* any property that passes by a written instrument other than a will (e.g., life insurance proceeds)
survival
How long must a beneficiary survive the decedant to take property under the laws of wills or intestacy?
120 hours; 5 days
survival
How are 120 hours proven if there is any doubt?
by clear and convincing evidence
survival
What are the two exceptions to the 120-hr rule?
- A decedant’s will can alter the application of the rule (e.g., lengthening or shortening the time)
- The rule does not apply if it would result in property escheating to the Commonwealth of Virginia
Special Rules about Children and Other Descendants
Who do adopted children inherit from? What if they were adopted as an adult?
- They inherit from the adopting parent(s). Cease to be child of biological parents unless adopting parent is spouse of biological
- Virginia law recognizes adult adoption for inheritance purposes
Special Rules about Children and Other Descendants
How does a child conceived through assisted conception become the child of the parent for inheritance purposes?
The parent must give consent (1) in writing, (2) before conception, and (3) the child must be born during the consenting person’s lifetime (or within 10 months after the consenting person’s death).
Special Rules about Children and Other Descendants
What are the first steps in determining whether a child born out of wedlock inherits from the biological parents?
First, apply the rules for adoption and assisted conception.
Special Rules about Children and Other Descendants
What are the special rules for children born out of wedlock if the other rules do not apply for the purposes of inheritance?
- the child is always the child of her biological mother
- the child is the child of the biological father if (1) the biological parents participated in a marriage ceremony before or after the birth, or (2) paternity is established by clear and convincing evidence.
Special Rules about Children and Other Descendants
How does a biological father inherit from a child born out of wedlock?
the father must openly treat the child as his child and must not refuse to support the child.
Special Rules about Children and Other Descendants
What are the filing requirements for a child born out of wedlock?
they must file an affidavit in the circuit court and ask for adjudication of parentage witin one year of the parent’s death.
Special Rules about Children and Other Descendants
When does the 1 year filing requirement for children born out of wedlock not apply? (3)
- Parentage has already been established through birth records made out by the deceased parent;
- Admission of parentage under oath; or
- a prior proceeding to determine parentage
What are the inheritance inmplications after the termination of parental rights?
- Parent loses the right to inherit from or through the child, unless the order says otherwise
- Does not mean the child loses the right to inherit from or through the parent
- does not means that the parent’s relatives cannot inherit from or through the child
How does a person take if they are related to the decedant through two different relationships?
they take a single share, using whather relationship results in a larger share.
aunt adopts nephew
Rule for after-born children?
Any relative of the decedant who is conceived before the decedent’s death but born after the decedent’s death will inherit as though he had been born during the decent’s lifetime
The Virginia Slayer Statute
What’s the slayer rule?
A person who kills the decedent is not allowed to take as a beneficiary under the decedent’s will or the laws of intestacy.
The killer is treated as having predeceased the decedent.
The Virginia Slayer Statute
What type of killing will trigger the statute?
A voluntary killing, so either murder or voluntary manslaughter
The Virginia Slayer Statute
When will the rule apply? like how do we know that the person is the killer?
- Applies if the killer has been convicted of murder or voluntary manslaughter in a criminal proceeding.
- Also applies if the killer has been shown to have committed murder or voluntary manslaughter in a civil proceeding by a preponderance of the evidence (with the person who is trying to prevent the killer from inheriting or taking under the will having the burden of proof).
Does not apply in a case of self-defense
The Virginia Slayer Statute
What if the killer is acquitted in a criminal trial by reason of insanity?
the slayer statute may apply if the killer loses in a civil proceeding,
The Virginia Slayer Statute
Does the slayer statute apply in the case of an employee-benefit plan covered by ERISA?
Itis not clear whether the Virginia slayer statute is preempted by ERISA. ERISA preempts most state law.
What is a disclaimer?
A refusal to accept an interest in property
When is a disclaimer valid?(4)
- The disclaimer must be made before the disclaimant accepts the interest or attempts to transfer it;
- The disclaimer must be in writing
- The disclaimer must describe the interest that is disclaimed and must declare that the interest is in fact disclaimed;
- The disclaimant must sign the disclaimer and deliver it to the executor or administrator of the estate (or if there is no executor or administrator, file it with the circuit court).
