FIFTEENTH CONCEPT: DISTRIBUTION OF THE ESTATE: WHO CAN TAKE? Flashcards
What is a Posthumous child?
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.
How do posthumous children inherit?
Posthumous children are deemed heirs of the intestate and beneficiaries of testator’s will.
What is the 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
When does the rule of anti-lapse apply?
Applies only if the devisee who predeceased the testator was “kindred” of the testator
What does the anti-lapse statute do?
the issue of that predeceased devisee will step into the shoes of that predeceased devisee.
T devises to his brother, but brother predeceases T. what happens?
In the absence of a contrary provision of the will, the gift to the brother will not lapse but go to the issue of the brother.
Testator executes a will devising Blackacre “to my
children.” At the time the will was executed, Testator had three children, A, B, and C. After Testator’s will is executed, C predeceases Testator. C leaves children C1 and C2. Thus, at Testator’s death, the survivors are: A, B, C1, and C2. Under California’s anti-lapse statute What is the result?
C’s gift does not lapse; rather, C1 and C2 take C’s devise. Thus, A gets 1/3, B gets 1/3, and C1 and C2 take C’s 1/3 (C1 and C2 each taking 1/6).
What is the Uniform Simultaneous Death Act?
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.
A and B, are joint tenants with right of survivorship, and die under circumstances of simultaneous death: you cannot tell by clear and convincing evidence who survived whom. What do you do?
In such case, you sever the joint tenancy: ½ the joint tenancy property goes to A’s estate and ½ the joint tenancy property goes to B’s estate.
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. What result?
The community property is severed
[a] ½ community property and ½ quasi-community property will be distributed through one spouse’s or one domestic partner’s estate; and
[b] ½ the community property and ½ quasi-community property will be distributed through the other spouse’s or the other domestic partner’s estate.
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?
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.
What is the 120 hour rule?
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.
