Inheritance Rules of General Application

Question 1

Testate

Answer 1

When a decedent dies with a will

Question 2

Intestate

Answer 2

When a decedent dies without a valid will. The estate is distributed under statute.

Question 3

Partial Intestacy

Answer 3

When a testator’s will fails to dispose of all his property and the undisposed of property passes through intestate succession.

Question 4

Surviving Spouse

Answer 4

Share typically is half or more, and that share is allocated before any other.

Question 5

Issue

Answer 5

Lineal Offspring regardless of degree of relationship.

In every state, when an intestate dies without a spouse the estate is distributable to the surviving issue.

Question 6

Simple Per Capita

Answer 6

Entire estate goes to living issue (none to surviving grandkids)

Question 7

Per Capita

Answer 7

Equal share of estate to all surviving family members

Question 8

Per Capita With Representation

Answer 8

Most States-Look for the Liver

The property is divided into equal shares at the first generational level at which there is a living taker. The share of each deceased person at that level passes to his issue by right of representation.

Question 9

Per Capita at Each Generational Level

Answer 9

Equally Near, Equally Dear
The estate is divided just at equal shares at the first generational level where there is a living taker, but any part of the estate that drops to the next generation is first pooled, then divided equally amongst the members of that generation.

Advantage - each live member of a given generation receives equal portions of the estate.

Pooled – brought together then divided equally among that generation.

Question 10

Per Stirpes

Answer 10

Few States - By the Root, By the Branch

The stirpital shares are always divided at every generation regardless of whether there is a living taker.

Question 11

Relatives

Adopted
Half Blood
Step Relatives
In Laws

Answer 11

Adopted - treated as whole blood (usually by statute)

Half Blood - treated as whole blood

Step - get nothing

In-Laws - get nothing

Question 12

Parentelic Method

Answer 12

Most States, UPC

The property of a decedent who has no spouse or issue passes to:

(1) parents
(2) issue of parents (first line collaterals – siblings, nieces, nephews)
(3) grandparents
(4) more remote collateral (aunt, uncles, & their issue)
(5) the state (escheat)

Issue of an intestate’s parents take to the exclusion of any issue of this intestate’s grandparents. Nice takes to the exclusion of an uncle.

Question 13

Civil Law Consanguinity Method

Answer 13

Minority

A niece and uncle would share equally, because both of them are in the third degree of consanguinity

Question 14

Common Law

Answer 14

Only blood relatives could inherit from an intestate decedent. Law been changed.

Question 15

Adopted Out

Answer 15

Typically severs the parent-child relationship b/w the child & biological parents. Adopted person is the child of an adopting parent and not of the biological/natural parents.

Question 16

Adoption by Spouse of Biological Parent

Exception to Adopted Out

Answer 16

UPC
Adoption of a child by the spouse of a biological parent has no effect on the right of the child to inherit from/through either biological parent.

Question 17

Adopted Out Kids - Most States

Exception to Adopted Out

Answer 17

Entitled to a share of the decedent’s estates ONLY IF the court concludes that decedent intended to include an adopted out child in language in will like “to my children who survive me.”

Question 18

Adoptive Grandparents

Answer 18

A court could extend the statutory treatment of adoptive parents to grandparents if the statute includes adoptive children in class gifts and if grandparent treats a grandchild as a child.

Question 19

Equitable Adoption/Adoption by Estoppel

Answer 19

Half States
Allows a child who has been treated in all respect as if they were adopted to inherit from the parent like figure.

Courts hesitant to find an equitable adoption unless the parent has made an express oral or written promise to adopt the child. Allows a stepchild to inherit from his stepparent as though legally adopted where the stepparent gains custody of a child under an agreement with the natural parent that they will adopt the child.

Question 20

Nonmarital Children
Common Law
Modern

Answer 20

CL - could not inherit from either parent

Modern
Mothers - non marital children can inherit from and through their mothers

Fathers - non marital child is generally considered a child of the father if paternity is recognized by (1) the father (2) another method of establishing paternity.

Question 21

Divorce

Answer 21

Every State
If a testator is divorced after making a will, all gifts to the former spouse and all appointments of spouse as executor or trustee under the will are revoked and the will takes effect as though the former spouse had predeceased the testator.

Doesn’t apply is a divorce proceeding is pending when one of the spouses die.

Question 22

Revocation of Divorce Decrees

Answer 22

Revocation applies only to final decrees of divorce but the UPC provides that a complete property settlement entered into after or in anticipation of a separation of divorce operates as a disclaimer of spouse’s share, family protections, intestate share, and gifts under a will that was executed before the property settlement.

Question 23

Revocation - Divorce

Answer 23

Divorce revokes only gifts to the ex-spouse, not gifts to anyone else (step kids, inlaws).

UPC - revoke bequests not only to the former spouse but also to the relatives of the former spouse

Doesn’t apply to Life insurance or trust (not pour over trust)

Question 24

Deaths in Quick Succession

Answer 24

Many States/UPC/Uniform Simultaneous Death Act

Require that a person survive the decedent by 120 hours (5 days) to take as a will beneficiary, intestate heir, insurance beneficiary, or surviving joint tenant.

Question 25

5 Day Survival Rule Statutes - Statute 1

Answer 25

One who fails to survive an intestate decedent by 5 days is deemed to have predeceased him for purposes of homestead allowance, the exempt property and intestate succession.

Question 26

5 Day Survival Rule Statute - Statute 2

Answer 26

A devisee who does not survive a testator by 5 days is deemed to have predeceased him unless the will contains some language requiring a devisee to survive, or to survive for a stated period, in order to take.

Question 27

Deaths in Quick Succession

Common Law

Answer 27

Absent a contrary will provision, if there was any evidence that a beneficiary survived the testator (even by minutes) the beneficiary is entitled to take under the testator’s will

Question 28

Uniform Simultaneous Death Act

Answer 28

When the title to property to its devolution depends on priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person is disposed of as if he had survived.

Question 29

Deaths in Quick Succession

Joint Tenants

Answer 29

If there is no sufficient evidence that 2 joint tenants died other than simultaneously the property so held shall be distributed ½ as if one had survived and ½ as if the other had survived.

Question 30

Deaths in Quick Succession

Insurance

Answer 30

When the insured and the beneficiary of a life insurance policy have died, and there is no sufficient evidence to determine that they have died other than simultaneously, the proceeds of the policy will be paid as if the beneficiary predeceased.

Question 31

Deaths in Quick Succession

Common Law

Answer 31

Tthe share devised to a beneficiary who predeceased the testator did not pass to the remaining beneficiaries but fell out of the will and passed by intestacy.

Most states
Replaced this “no residue of a residue” rule with statutory rule where the residuary beneficiaries who survive the testator take the predeceased beneficiary’s share of the residue.

Question 32

Advancements

Common Law

Answer 32

Whenever a parent gave his child a substantial gift, it was treated as an advancement, under the presumption that the parent would want to treat all of his children equally.

Most States - Abandoned the CL rule and treat a substantial gift as an advancement only if it is made to a descendant and the donor or donee acknowledged in WRITING that the gift was an advancement.

Question 33

Advancements

UPC

Answer 33

States that no lifetime gift is an advancement UNLESS it is declared an advancement in a contemporaneous writing by the donor or acknowledged as an advancement (any time) in writing by the donee.

Question 34

Advancements

State Laws

Answer 34

Differ on whether an advancement to a predeceasing ancestor has the effect of diminishing the share to a successor of an advancee.

Question 35

Disclaimer

Definition

Answer 35

Is an attempt ( aka renunciation) by a person to renounce their legal right to benefit from an inheritance (either under a will or through intestacy) or through a trust. …

A disclaimer of interest is irrevocable.

Is effective only under its terms. One who only disclaimed under a will or trust DOES NOT also disclaim under intestacy.

Question 36

Disclaimer

Almost All States

Answer 36

Enacted disclaimer statutes that permit beneficiaries of wills and trusts to disclaim their interests in the estate or trust property.

Question 37

Disclaimer

Most States

Answer 37

A disclaimer is not effective unless it is in writing and is made, for a testamentary transfer, within nine months of the decedent’s death or, for a future interest in a non-testamentary transfer, within nine months after the future interest would become “indefeasibly vested.”

Question 38

Disclaimer

UPC - Newest

Answer 38

permits a disclaimer at any time before acceptance of the interest. A disclaimed interest passes as though the disclaiming party predeceased the decedent. When the holder of a future interest effectively disclaims that interest, the disclaimant is deemed to have predeceased the life tenant. Any remainder interest following a renounced life interest is accelerated if appropriate to do so.

Question 39

Disclaimer

If Statute Inapplicable

Answer 39

If the statute is inapplicable the common-law rule allowing disclaimers (a/k/a renunciations) at any time could apply. Under the common law, if a life estate is renounced, the remainder interest accelerates and becomes immediately distributable to the remaindermen of the trust if the remainder is vested but not if the remainder is contingent. And if none of them survive, the trust principal will be distributed to the testator’s heirs living at the remainderman’s death.

Question 40

Homicide

Most States

Answer 40

Case law or statute (commonly called slayer statutes) provides that one who feloniously and intentionally kills the decedent is not entitled to any benefits under the decedent’s will or as an heir of the decedent, and the estate of the decedent passes as if the killer had predeceased the decedent.

Question 41

Homicide

Final Judgment

Answer 41

A final judgment of conviction of felonious and intentional killing is conclusive, but even after an acquittal in a criminal trial, a court may determine by a preponderance of evidence that the killing was felonious and intentional (since different considerations and a different burden of proof apply in a criminal trial). Such a killer usually is precluded also from receiving a remainderman’s interest or life insurance proceeds.

Question 42

Homicide

UPC

Answer 42

Provides “any other acquisition of property or interest by the killer shall be treated in accordance with the principles of the section.”

Question 43

Homicide

Slayer Statute Restrictions

Answer 43

Although murderers are often barred from inheriting under a “slayer statute,” such a statute would apply only when the heir killed the decedent whose estate is at issue. No slayer statute bars an heir from inheriting from a decedent’s estate because the heir killed another person, even if the heir’s victim left property to the decedent that is included in the decedent’s estate.

Question 44

Choice of Law

Personal Property

Answer 44

Law of the testator’s domicile at the time of death determines intestacy rules and controls the validity and effect of any will.

Question 45

Choice of Law

Real Property

Answer 45

Governed by the law of the state where the real property is located (lex situs).