Intestate Descent and Distribution

Question 1

when does intestate succession rules apply?

Answer 1

intestate succession apply when:
1) decedent left NO will
2) decedents will is DENIED probate
3) decedent left a will but the will DOES NOT MAKE A COMPLETE DISPOSITION of the estate - resulting in partial-intestacy

Question 2

how to assess who are the heirs and distribution?

Answer 2

1) calculate the share of the surviving spouse (net that amount out of the estate)
2) then apply the general rule of order to figure out who takes under statute (order of intestate succession)

**if no survive spouse - go to step #2

Question 3

what is the share of the surviving spouse?

Answer 3

will either take
100% or 1/3 depending on who else is availabel

Question 4

if Decdent has no descendants - who takes?

Answer 4

surviving spouse takes 100%

Question 5

if D has descendants - and all of them are descendants of the surviving spouse (share common parents) - how do they take?

Answer 5

the surviving spouse takes 100%

Question 6

what if the descendants don’t share the parents in common?

Answer 6

if decedent is survived by descendants, at least one of whom was NOT the surviving spouse’s descendant – the spouse inherits 1/3rd of the estate and the other 2/3rds passes to the decedent’s descendant

Question 7

when is the surviving spouse barred from taking?

Answer 7

If a spouse willfully deserts or abandons the other spouse and the desertion continues until the abandoned spouse’s death, the deserting spouse is barred from all statutory rights in the estate (for example, intestate share, elective share, exempt property, family allowance, and homestead).

Also, the deserting spouse will not be appointed administrator of the estate if a beneficiary of the estate files an objection.

Question 8

after calculating how much the spouse takes - what is next?

Answer 8

the General rule of order of intestate succession!
1) issue / descendants (children/ grandchildren)
2) parents
c) descendants of parents
d) grandparents and descendants of grandparents
d1) next of kin
e) to heirs of deceased spouse
**if no takers – property ESCHEATS and passes to commonwealth of VA
f) no “laughing heir” statute

Question 9

a) descendants / issue

Answer 9

Descendants are people related to the decedent in a direct line, such as children or grandchildren. If all of the decedent’s children survive, each child receives an equal share. If a child predeceases the decedent and leaves issue who survive the decedent, shares will be calculated per capita with representation (see 1.3.3, below).

Question 10

b) parents

Answer 10

If the decedent is not survived by a spouse or descendants, the estate passes to the decedent’s parents or surviving parent.

Note that a parent is disqualified from inheriting if that parent willfully deserted their minor or incapacitated child, and the desertion continued until the child’s death. Also, a deserting parent will not be appointed administrator of their child’s estate if a beneficiary of the estate files an objection.

Question 11

c) descendants of parents

Answer 11

If no spouse, descendants, or parents survive the decedent, the estate passes to the decedent’s brothers or sisters (and the issue of deceased siblings, who take by representation).

Question 12

d) grandparents + descendants of grandparetns

Answer 12

If none of the foregoing survive the decedent, one-half of the estate passes to the maternal grandparents (or their descendants, who take by representation) and the other one-half passes to the paternal grandparents (or their descendants in the same manner). If, on either side, there is no surviving grandparent or their descendants, the estate will pass to the next nearest lineal ancestors and the descendants of such ancestors (such as great-grandparents and their descendants; if none, to great-great-grandparents and their descendants, etc.) in an ongoing succession.

However, if there are no surviving kindred of one of the decedent’s parents, the whole estate will pass to the surviving kindred of the other parent.

Question 13

e) to heirs of deceased spouse

Answer 13

If the decedent was not survived by any living heirs on the maternal or the paternal side, the estate passes to the heirs of the decedent’s deceased spouse, as though the deceased spouse had survived and passed intestate.

Question 14

f) no “laughing heir” statute

Answer 14

Virginia has no “laughing heir” statute, which would cut o the inheri- tance rights of more remote relatives. A person can qualify as an heir, no matter how remotely related to the decedent. The estate escheats to the Commonwealth only if there are no heirs of the decedent or their spouse.

Question 15

f) no “laughing heir” statute

Answer 15

Virginia has no “laughing heir” statute, which would cut o the inheri- tance rights of more remote relatives. A person can qualify as an heir, no matter how remotely related to the decedent. The estate escheats to the Commonwealth only if there are no heirs of the decedent or their spouse.

Question 16

**what is the analysis you should do?

Answer 16

1) calculate share of Surviving spouse
2) descendants/issue?
– children
– grandchildren (shares calculated per capita with representation)

3) parent/parents (but not if willful desertion)

4) descendants of parents (siblings - and issue of siblings - who take by representation)

5) grandparents + descendants of grandparents

6) next of kin –> – if no surviving grandparent or descendants - then to next nearest lineal ancestors and their descendants (i..e great grandparents)

7) heirs of deceased spouse

Question 17

will provision attempting to disinherit –> negative disinheritance clauses

Answer 17

In VA - a court will not honor descendants’ wishes unless they make a COMPLETE distribution of the property in their will

to disinherit somene - the testator must make a COMPLETE distribution of their estate by will. Any portion passing by intestacy is governed by the intestacy statute, NOT the testator’s will

Question 18

children and intestacy

Answer 18

a) adopted children
b) stepchildren and foster children
c) non marital child
d) conception before death
e) conception after death (posthumous children)
f) half-blood siblings take half as much as whole blood
g) two lines of relationship

Question 19

a) Adopted children

Answer 19

**LEGALLY adopted children have the same treatment act natural child - and can take by and from their ‘parent’s

The adopted child and her descendants inherit from and through the adopting parents (and the adopting parents and their kin inherit from and through the child) as though she were a natural child.

**DOCTRINE OF EQUITABLY ADOPTED CHILD IS NOT RECOGNIZED IN VA

Question 20

who can an adopted child no longer take from?

Answer 20

Adoption cuts off inheritance rights from the natural parents (or their kin), and vice versa, except in cases of:
1) - Adoption by the spouse of a biological parent, which has no effect on the relationship between the child and either biological parent, (adoption by stepparent has not severed inheritance relationship between child and biological parent - may still inherit from and through them)

OR

2) - Court order that involuntarily terminates parental rights.

Question 21

b) stepchildren and foster children

Answer 21

a stepchild or foster child who is NOT adopted has no inheritance rights from her stepparent or foster parent

Question 22

c) nonmarital child - mother

Answer 22

A nonmarital child has FULL inheritance rights from her mother and her mother’s kin (and vice versa).

Question 23

when is a natural father considered to be parent of non marital child?

Answer 23

For purposes of inheritance, the natural father is considered to be the parent of a nonmarital child only if:
A) The father married the mother before or after the child’s birth (even if the attempted marriage is void or voidable); or

B) It is established by CLEAR AND CONVINCING evidence of paternity - through that:
(1) The man openly cohabited with the mother during her entire pregnancy;
(2) The man consented to be named on the child’s birth certificate;
(3) The man allowed the child to use his surname;
(4) The man claimed the child as his on a tax return or other government document;
(5) The man was adjudged the father in a paternity suit and ordered to pay child support;
(6) The man admitted paternity in court or in writing under oath; or
(7) Genetic tests or other medical or anthropological evidence establish that the man is the child’s father.

Question 24

other father ‘distinctions’

Answer 24

The father and his kin have inheritance rights from and through the child if parentage was established in a paternity suit or if the father attempted to marry the mother. If paternity is established by proof of one of the seven “clear and convincing” grounds, however, the father and his kin can inherit only if the father openly treated the child as his and did not refuse to support the child.

Question 25

d) conception before death

Answer 25

for inheritance purposes - a child conceived by ARTIFICIAL REPRODUCTIVE TECHNOLOGY - its he child of a person who CONSENTED to being a parent in WRITING before the conception - provided that the child is born within that person’s lifetime OR WITHIN 10 MONTHS OF THAT PERSON’S DEATH

Question 26

e) conception after death (posthumous children)

Answer 26

a child or relative of the decedent who is conceived an in gestation BEFORE the decedent’s death and born thereafter takes AS IF BORN DURING THE DECEDENT’S LIFETIME

Question 27

f) half-blood siblings take half as much as whole blood

Answer 27

Kindred of the half-blood (meaning, with only one common parent) inherit only half as much as kindred of the whole blood.

half blood sibling only takes one half of what a whole blood sibling woudl take

Question 28

g) two lines of relationship

Answer 28

a person who is related to a decedent through TWO LINES of relationship takes only the larger of the two shares!

Question 29

ADVANCEMENT OF INTESTATE SHARE

Answer 29

**only an issue when decedent dies intestate (for testamentary devices - look to ‘satisfaction of legacies’

if a person, throughout the course of their life decides to give gifts to children or other loved ones (INTER VIVOS gift) –> in VA, such a gift is PRESUMPTIVELY an advancement (advance payment) to be taken into account in making an intestate distribution

in real life - gift could be:
1) gift
2) loan
3) advancement

Question 30

2 issues here

Answer 30

1) determine whether lifetime transfer is an advancement - turnoff the INTENT of decedent
– presumption that it is an advancement

2) computation of shares after netting out advancment

Question 31

how to overcome presumption that a gift is an advancement?

Answer 31

the presumption of advent may be rebutted by affirmative proof that the gift was not intended to be an advancement.

Statements of the grantor are competent evidence to show the grantor’s intention

Question 32

computation???

Answer 32

IF it has been determined that an advancement has been made:
STEP 1: add the amount of the advancement back into the estate
STEP 2: calculate the share of each heir
STEP 3: deduct the amount of the advancement from the share of the recipient.

If there is a deficit, and the amount of the recipient’s share is larger than the intestate share to which they are entitled, they are not responsible for returning the excess. The other heirs will divide the deficit pro rata.

Question 33

what about if an advancement is given to a person (“A”) and that person dies with issue??

Answer 33

the advancement will not be held against their child/issue - the estate will be divided without taking into account the advancement - and will be split equal ways between the issue