Estates (Intestate Succession)

Question 1

What property passes by intestacy?

Answer 1

All property owned by the decedent at death, except:

1) Property passing by valid will
(2) Property passing by will substitute (i.e., non-probate property

Question 2

Tennessee wrongful death proceeds

Answer 2

Proceeds from a wrongful death action become personal property of the deceased.

The proceeds from a wrongful death action cannot pass under the Will of the deceased - it HAS to pass through intestacy.

Question 3

Two Types of Intestacy

Answer 3

(1) Full intestacy (i.e., no valid will)

2) Partial intestacy (i.e., a valid will that fails to dispose of all probate property

Question 4

Who represents the decedent after death? (TN law)

Answer 4

When a person dies intestate in this state, administration shall be granted:

• To the spouse of the decedent if the spouse applies for it
• Otherwise, to the next-of-kin, if such next-of-kin apply for it
• If more than one next-of-kin apply, the probate court may decide which of the kin is entitled to the administration
• Otherwise, to a creditor of the decedent

Question 5

Expectancy

Answer 5

An heir must survive the decedent to inherit

Question 6

Tennessee Survival Law

Answer 6

Standard is 120 hours.

• anyone who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent and the decedent’s heirs are determined accordingly
• exception: if the will of the decedent contains language dealing explicitly with simultaneous deaths or deaths in a common disaster or requiring a specific time period
• exception: not applied if it would result in escheating to the state

Question 7

Life insurance with the survivorship statute

Answer 7

Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary

Question 8

Share of the spouse

Answer 8

(1) If there is no surviving issue of the decedent, the entire intestate estate; or
(2) If there are surviving issue of the decedent, either one-third (1/3) or a child’s share of the entire intestate estate, whichever is greater

Question 9

Share of Descendants

Answer 9

The part of the intestate estate not passing to the surviving spouse or the entire intestate estate if there is no surviving spouse, passes as follows:

• To the issue of the decedent; if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree, then those of more remote degree take by representation

Question 10

Modern per-stirpes

Answer 10

Divide at the first level where there is a survivor

Question 11

General rules for adopted children

Answer 11

(1) Adopted children inherit from and through their adopted parents and adopted parents inherit from and through their adopted children.
(2) Adopted children do NOT inherit from or through their natural parents and natural parents do NOT inherit from or through their adopted children.

Question 12

Stepchild exception to adoption rules

Answer 12

An adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent.

Question 13

Virtual Adoption

Answer 13

Not recognized in Tennessee

Question 14

Posthumous children

Answer 14

• A decedent’s children conceived before death but born after inherit as if they had been born in the decedent’s lifetime
• A man is rebuttably presumed to be the father of a child if: the man and the child’s mother are married or have been married to each other and the child is born during the marriage or within three hundred (300) days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce

Question 15

Inheritance by nonmarital child

Answer 15

A person born out of wedlock is a child of the mother. That person is also a child of the father, if:

• The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or
• The paternity is established by adjudication before the death of the father or is established thereafter by clear and convincing proof, but only if an assertion of paternity is made that seeks the adjudication within one year after the father’s death.

Question 16

nonmarital children - inheritance by the parent

Answer 16

• The paternity is established by adjudication before the death of the father or is established thereafter by clear and convincing proof, but only if an assertion of paternity is made that seeks the adjudication within one year after the father’s death.
• Only if the father has openly treated the child as the father’s, and has not refused to support the child.

Question 17

Share of parents

Answer 17

If there is no surviving spouse or issue, to the decedent’s parent or parents equally

Question 18

Share of siblings

Answer 18

If there is no surviving issue or parent, to the brothers and sister and the issue of each deceased brother and sister by representation; if there is no surviving brother or sister, the issue of brothers and sisters take by representation

Question 19

Share of other relatives

Answer 19

If there is no surviving issue, parent, or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent or to the issue of the paternal grandparents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there is no surviving grandparent or issue of grandparent on either the paternal or maternal side, the entire estate passes to the relatives on the other side in the same manner as the half.

Question 20

Escheat

Answer 20

If there is no one left to inherit the property, it reverts to the state

Question 21

Advancement - General rules

Answer 21

When the decedent dies intestate as to all or part of his estate, property given to a child is an advancement only if:

(1) The decedent declared in writing, or the child acknowledged in writing, that the gift is an advancement; or
(2) The decedent’s writing or the child’s written acknowledgement otherwise indicates that the gift is to be taken into account in distribution of the decedent’s intestate estate.

Note: property advanced is valued as of the time the child came into possession of the property or as of the time of the decedent’s death, whichever first occurs.

Question 22

Advancee predeceases intestate

Answer 22

If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the division and distribution of the decedent’s intestate estate, unless the decedent’s contemporaneous writing provides otherwise

Question 23

Slayer Rule

Answer 23

An individual who feloniously and intentionally kills the decedent forfeits all benefits with respect to the decedent’s estate, including an intestate share, an elective share, an omitted spouse’s or child’s share, a homestead allowance, exempt property, and a family allowance. If the decedent died intestate, the decedent’s intestate estate passes as if the killer predeceased the decedent

Question 24

Disclaimer/Renunciation

Answer 24

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. The disclaimer may be made by the person’s personal representative, trustee, guardian, conservator, attorney in fact or parent having custody if the disclaimant is a minor and no legal guardian has been appointed. The interest disclaimed passes as if the person disclaiming had predeceased the decedent.

Question 25

Negative Disinheritance

Answer 25

A testator may disinherit an heir only by giving his property to others, and mere words excluding the heir, without an affirmative disposition to another, do not disinherit

Question 26

Aliens

Answer 26

An alien, resident or nonresident of the United States, may take and hold property, real or personal, in this state and dispose of or transmit the same as a native citizen.

The heir or heirs, devisee or devisees of such an alien may take any lands, so held by descent or otherwise, as if a citizen or citizens of the United States.

Question 27

Divorce

Answer 27

Divorce or annulment = not a surviving spouse

Legal separation = still a surviving spouse

Even if the divorce or annulment is not recognized as valid, not a surviving spouse unless there’s a subsequent marriage ceremony or they subsequently live as husband and wife

If a person partakes in a marriage ceremony with a third person = not a surviving spouse

Question 28

Parental misconduct

Answer 28

Father can only inherit from the child if he treated the child as his own and has not refused to support the child.

Father can only inherit if all child support has been paid to the other parent (or other parent’s estate if deceased)