Intestate Descent and Distribution

Question 1

When do intestate succession rules apply?

Answer 1

When (1) decedent left NO WILL; (2) decedent will is denied probate; or (3) the decedent left a will but it does not make complete disposition of the estate (e.g., “partial intestacy”)

Question 2

What is the intestate share of the surviving spouse

Answer 2

(1) All–surviving spouse gets everything if there are: (a) no descendants or (b) all descendants are also descendants of the surviving spouse (think, nuclear family and dad/mom dies)
(2) 1/3–decedent survived by descendants, at least one of whom was not the surviving spouse’s descedant
(3) None for desertion or abandonment

Question 3

What is the general rule of order?

Answer 3

(1) Descendants
(2) Parents
(3) Descendants of Parents
(4) Grandparents and Descendants of Grandparents
* 1/2 to either side and if no surviving grandparents or descendants, then all to one side
(5) Heirs of Deceased Spouses
(6) Anyone else with blood relationship (e.g., second cousin)

Question 4

Is disinheritence allowed and how is it accomplished?

Answer 4

Yes, but must be done by complete disposition of estate, not by disinheritence clause

Question 5

How does VA compute shares and what does that mean?

Answer 5

Descendants take per capita with representation–decedent’s property divided into equal shares at the first generational level with living takers, and each living person and each predeceasing descendant who left living issues gets a share

Question 6

What is the effect of COMPLETED adoption?

Answer 6

Adopted child and descendants inherit from and through adopting parents as though she were a natural child, and no longer has inheritance rights from natural parents and vice versa, except:
* Adoption by spuose of biological parent, which has no effect on relationship between child and either biological parent OR
* Court order involuntarily terminating parental rights

Question 7

What is the effect of a nonmarital child as to the mother and her mother’s kind?

Answer 7

Full inheritance rights

Question 8

What is the effect of a nonmarital child as to her father?

Answer 8

Considered to be parent of nonmarital child ONLY IF:
* Father married the mother (even if void) before or after child’s birth
* Any of the following are established by clear and convincing evidence:
1. * Man openly cohbitated with mother during entire pregnancy
2. Man consented to be named on child’s birth certificate
3. Man allowed child to use his surname
4. Man claimed child on his tax return/other government document
5. Man was adjudged father in paternity suit and ordered to pay child support
6. Man admitted paternity in court or in writing under oath
7. Genetic tests show fatherhood

Question 9

Effect of Half-Blood Siblings

Answer 9

Take only half as much as kindred of the whole blood

Question 10

What is the concept of advancement, and how is the presumption overcome in Virginia?

Answer 10

An inter vivos gift to children or other descendants are presumptively an “advancement,” or advance payment, to be taken into account in making intestate distribution
* To overcome presumption, must rebut by affirmative proof that the gift was not intended to be advancement (e.g., statements of grantor)

Question 11

How does computation work after an advancement has been made?

Answer 11

(1) Add amount of advancement back into the estate
(2) Calculate the share of each heir
(3) Deduct the amount of the advancement from the share of the recipient
* Note that if there is a deficit, and the amount of the recipient’s share is larger than the intestate share to which they are entitled, the other heirs will divide the deficit pro rata