DISTRIBUTION OF THE ESTATE: WHO CAN TAKE? Flashcards
Issues
Posthumous Children
Lapse and anti-lapse
Simultaneous death
Posthumous children
[A] A posthumous child is a child conceived during the lifetime of the intestate or testator, but born after the death of the intestate or testator.
[B] Posthumous children are deemed heirs of the intestate and beneficiaries of testator’s will.
Rule of Lapse
If the beneficiary does not survive the testator, beneficiary’s gift lapses, or fails. Thus, if a gift lapses, unless a contrary intent is expressed in the will,
the gift falls into the residue, if there is one; if it is already part of the residue, it goes to other co-residuary devisees. Otherwise, the gift goes by intestacy.
Anti-Lapse Statute:
If the anti-lapse statute applies, the rule of lapse will not apply.
California’s Anti-Lapse Statute:
Applies only if the devisee who predeceased the testator was “kindred” (blood relative) of the testator, or kindred of a surviving, deceased or former spouse or domestic partner of the testator, and this predeceased devisee leaves issue. In such case, the issue of that predeceased devisee will step into the shoes of that predeceased devisee.
- Note: For the anti-lapse statute to apply, devisee must be “kindred” (blood relative) of the testator or testator’s spouse or domestic partner—but the devisee cannot be the spouse or the domestic partner.
- Note also: the issue of the predeceased devisee who take under the anti-lapse statute take in the manner provided in section 240: those of the same degree take “per capita,” while those of more remote degree take by “per capita with representation”
- In California, both the rule of lapse and the anti-lapse statute applies to wills and also to revocable trusts.
- In California, the anti-lapse statute also applies to class gifts.
Simultaneous Death
Simultaneous death involves the following problem: If the devolution of property is dependent on one person surviving another, and it cannot be determined by clear and convincing evidence who survived whom, then it is deemed the one person did not survive the other. This
is the Uniform Simultaneous Death Act which California has adopted.
Simultanious Death with a JT
In such case, you sever the joint tenancy:
Spouses or domestic partners have wills and own community property or quasi community property and die under circumstances of simultaneous death: you cannot tell by clear and convincing evidence who survived whom.
In such case the community property and quasi-community property will be severed
A life insurance policy and the insured and beneficiary die under circumstances of simultaneous death: you cannot tell by clear and convincing evidence that the beneficiary survived the insured. What happens in such case? If it cannot be so established that the beneficiary survived the insured, then the beneficiary is deemed not to have survived the insured. What happens?
[a] See if there is an alternative beneficiary named.
[b] If there is no alternative beneficiary, the policy proceeds are paid to the insured’s estate: to the residuary devisees in the will if there are any, but if none, the proceeds will go to the insured’s heirs.
[c] But Note: if the policy premiums are paid for with
community property or quasi-community property and
the insured and beneficiary are spouses or domestic
partners, then ½ the proceeds go to one spouse’s or one domestic partner’s estate, and ½ the proceeds go to the other spouse’s or the other domestic partner’s estate.
The intestate and heir die and the 120-hour rule:
Here the rule is a little different. For any heir to take, the heir must survive the intestate by 120 hours. If it cannot be determined by clear and convincing evidence that the heir has survived the intestate by 120 hours, it is deemed that the heir did not survive the intestate, and the heirs are determined accordingly. This 120- hour rule does not apply if the property would escheat.
