Intestacy

Question 1

What does it mean to be intestate?

Answer 1

No will

Or

Denied probate

Or

Incomplete disposition of assets

Question 2

What is the share of a surviving spouse?

Answer 2

Can be 100% or 1/3

No descendants = All
Descendants with intestate spouse = All
Descendants, not all same parents = 1/3

Question 3

What is the general rule of order in intestacy in VA?

Answer 3

Descendants

Parents (50/50 or all to living)

Descendants of parents - siblings of decedent

Grandparents maternal and paternal - ALL to one if one side has predeceased

Next of kin - Laughing heir

D’s predeceased spouse’s relatives (InLaws)

Escheats back to the Commonwealth

Question 4

What is a disinheriting clause?

Answer 4

Disinherit an heir.

If INCOMPLETE and more assets need to be distributed, VA will not respect disinheriting clause.

Now INTESTATE estate

Question 5

Pre-deceased children with descendants - how do they inherit?

Answer 5

Per stirpes - take by representation on common line

Question 6

What is consequence of adoption on intestacy?

Answer 6

Legal adoption = legal child
Foster or stepchild cannot inherit

Question 7

VA Transplantation Theory

Answer 7

An adopted child is cut off from inheriting from biological parents.

However, a stepchild adopted by new spouse is NOT cut off from inheriting from biological parents

Question 8

How do non-marital children inherit?

Answer 8

From mother automatically

From father? Need clear and convincing evidence of paternity

Question 9

Evidence of paternity?

Answer 9

DNA test
Taxes
Birth certificate
Acknowledgment
Cohabitation with mother

Question 10

Inheritance by half blood siblings

Answer 10

Half blood siblings will inherit 1/2 of what a full blood sibling would receive

Question 11

Advancement of Intestate Share

Answer 11

In VA there is a presumption of advancement.
-rebut with proof of gift or a loan

Question 12

How do you calculate post advancement shares?

Answer 12

Add amount back into the intestate estate

Divide by the amount of heirs

Adjust net share of heir with advancement

Deficits are allocated pro rata

Question 13

120 Hour Rule

Answer 13

Must survive decedent by 120 hours to inherit

Does not apply if property would escheat otherwise

Question 14

Can you disclaim your share?

Answer 14

Yes. However acceptance is presumed.

Question 15

How do you disclaim a share?

Answer 15

Writing
Declare intent to disclaim
Property being disclaimed
Signed
Delivered on executor

Question 16

What is the slayer statute?

Answer 16

Someone guilty of intentional and felonious killing of decedent CANNOT inherit.

Treat them as predeceased.

Question 17

Conviction needed to apply slayer statute?

Answer 17

No! Conviction or a preponderance of the evidence

Question 18

What if a spouse deserted or abandoned the decedent?

Answer 18

If desertion lasted until death, they are barred from all rights in the state

As if they are predeceased