Intestacy Flashcards
Intestacy Defined
A total intestacy occurs when a person dies without having a valid will. A partial intestacy occurs when a person dies having a valid will, but the will does not effectively dispose of all the person’s probate
estate.
Scheme
South Carolina uses a parentelic scheme of distribution. Heirs are sought first from among the decedent’s spouse and issue. If there are none, then heirs are sought at the first parental level or among the issue of that parental level. Again, if there are none, then heirs are sought from among the next parental level or among the issue of that parental level. The third and final parental level considered is the great-grandparents of the decedent or their issue.
Jurisdiction of Probate Court
Recent case law: Although the family court and probate court have concurrent jurisdiction to determine whether a deceased person was the spouse if the marriage issue is connected to a probate claim, if the survivor brings an action solely seeking a declaration that the decedent was a common-law spouse, the Family Court has exclusive jurisdiction.
Spouse and issue of the Decedent
a. if there is a surviving spouse and no issue of the
intestate, the surviving spouse takes the entire estate
b. if there is no surviving spouse, but one or more issue of
the intestate survive, the issue divide the entire estate
amongst themselves, taking by representation.
c. if there is a surviving spouse and one or more issue, the
surviving spouse receives half of the estate, and the
issue divide the other half among themselves, taking by
representation.
d. posthumous issue of the decedent (not of decedent’s
parents, grandparents, etc.) qualify as heirs.
Parents or issue of parents of the decedent
a. Decedents parents take equally if both survive the
decedent. If only one is living at decedent’s death, the
surviving parent takes the entire estate
b. if both parents predecease the decedent, the estate
passes by representation to the issue of either parent.
Grandparents or issue of grandparents of decedent
a. consider separately the decedent’s maternal
grandparents and their issue and the decedent’s
paternal grandparents and their issue.
b. if one or both of the maternal grandparents is alive, and
one or both of the paternal grandparents is alive, the
one-half of the decedent’s estate passes to the
maternal side and one-half to the paternal side.
c. if one or both grandparents is alive on only one side of
the family but there are surviving issue on the other side, then one-half still passes to each side.
d. if no grandparents are alive but issue of the paternal
grandparents and issue f the maternal grandparents are
alive, then the issue on each side take one-half the
estate by representation.
e. if no grandparents or issue of those grandparents are
alive on one side of the family but grandparents or
issue are alive on the other side, then the entire estate
passes to the side of the family with surviving
members.
Great Grandparents, Stepchildren and Escheat to the State
(4) Great-grandparents or issue of great-grandparents of decedent (same rules as grandparents, but apportion each half in-half).
(5) Stepchildren of the decedent: If the decedent has no surviving heirs within the above categories, the step-children may take.
(6) Escheat: if there is no person described above who survives the intestate, the estate passes to the state..
Representation
If all persons within a class of issue are of the same degree or kinship, the distribution is made equally to each member of the class. If there are different degrees of kinship, the distribution is made by representation.
Under SCPC, at the first generation where there is a surviving member, the estate is divided into as many shares as there are
(1) living members of that generation, PLUS
(2) deceased members of that generation with surviving issue.
Each living member of that generation takes a share, and the share of each deceased member with surviving issue passes to those issue.
Disclaimer
Disclaimer
An heir or devisee may disclaim any interest in decedent’s estate. If a person disclaims any interest, that person is treated as having predeceased the decedent for most purposes of distributing the estate, but not for the purpose of determining at which generation to make a division of the estate.
Once made, a disclaimer cannot be revoked simply because the party making the disclaimer realizes the action will have unintended legal consequences.
Adopted Children
Adopted children: generally treated the same as a natural child of the adopting parents. The adopted child is no longer a child of his or her natural parents for intestacy purposes. The adoption of a child by the spouse of one of the child’s natural parents does not prevent the child from inheriting from the natural parent.
Illegitimate Children
Illegitimate children
a. a child born out of wedlock is a child of the mother
b. a child born out of wedlock is a child of the father if
i. the natural parents participated in a marriage before or after the birth of the child, even though the marriage is void
ii. paternity is established by adjudication—if after the death of the father must be commenced not later than
1. eight months after the father’s death
2. six months after the appointment of a personal representative.
c. the probate court has concurrent jurisdiction with the
family court to determine paternity in connection with
a probate matter.
d. even if paternity is established, a father cannot inherit
from or through the child unless the father has openly
treated the child as his and has not refused support.
e. a child born out of wedlock may be legitimized by the
subsequent marriage of his parents.
Advancement
An advancement is a lifetime gift made by the decedent to a prospective heir, which is intended to be set off against the amount of any later inheritance by the heir from the donor. If a lifetime gift is deemed to be an advancement, the gift will reduce or eliminate any
inheritance received by the heir at the decedent’s death.
(1) Total intestacy required : a lifetime gift can be deemed to be an advancement only if the decedent died without any part of his estate distributed by a valid will.
(2) Presumption against advancement : SC has a rebuttable presumption that a lifetime gift is not intended to be an advancement. The presumption can be overcome only if there is a written declaration that the gift is intended to be an advancement. The writing may be
a. a writing signed by the decedent contemporaneously
with the gift
b. a writing signed by the putative heir acknowledging
the gift as an advancement.
Calculation of Inheritance if Advancement is Made
(3) Calculation of inheritance share if an advancement is made :
a. add the amount of the advancement (valued as of the
time the heir came into possession or at the time of the
death of decedent, whichever is first) to the amount of
the actual probate estate
b. using that sum, calculate the intestate share to which
the recipient would have been entitled to
c. if the amount of the advancement is greater than the
intestate share, the recipient may keep the gift but
takes nothing further in the if the advancement was less than the intestate share calculated in this manner, the recipient of the advancement receives the amount of the difference from the intestate’s probate estate.
120-Hour Survivorship Requirement
To qualify as an intestate heir, a person must survive the decedent by at least 120 hours.
Slayer Disqualification
A person who feloniously and intentionally kills (or conspires to kill) another cannot inherit from the estate of the victim, take as a devisee under a will, or take as a beneficiary under any insurance policy
insuring the life of the victim.
Killer treated as predeceasing the victim : The family of a killer may be able to inherit from the victim’s estate if they would be heirs of the victim had the killer predeceased.
Criminal conviction not required : A civil action may be instituted to prove the killing was felonious and intentional for the purposes of disqualifying the killer.
