Intestate Descent & Distribution Flashcards
When do intestate succession rules apply?
- When the decedent left no will;
- When the decedent’s will was denied probate; or
- When a decedent left a will, but did not make a complete disposition of the estate (partial intestacy).
If a spouse _____________ the other spouse, and it continues until the abandoned spouse’s death, the deserting spouse is barred from all statutory rights in the estate.
willfully deserts or abandons
If a decedent is survived by descendants, at least one of whom was not the surviving spouse’s descendant, the spouse inherits ______ of the estate, and the other ______ passes to the decedent’s descendants.
1/3; 2/3
If a decedent is not survived by a spouse, who is first in line to receive distribution of the estate?
Descendants.
Who is a descendant under Virginia law?
People related to the decedent in a direct line, such as children or grandchildren.
If the decedent is not survived by a spouse or descendants, the estate passes to…
The decedent’s parents or surviving parent.
A parent may be disqualified from inheriting from their child if…
that parent willfully deserted their minor or incapacitated child, and that desertion continued until the child’s death.
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).
If no spouse, descendants, parents, or siblings survive the decedent, the estate passes to…
The decedent’s grandparents. 1/2 will go to their maternal grandparents, and 1/2 will go to their paternal grandparents.
[or their descendants who may take by representation].
If the decedent was not survived by any living heirs, the estate passes to…
heirs of the decedent’s deceased spouse, as though the deceased spouse had survived and passed intestate.
Does Virginia have a laughing heir statute?
No, a person may qualify as an heir, no matter how remotely related they are to the decedent.
When will an estate escheat to the Commonwealth?
ONLY if there are no heirs of the decedent or their spouse.
Decedent dies intestate survived by his stepson from his predeceased wife and his nephew. Who takes?
100% to nephew.
Decedent dies intestate survived by his great uncle and his nephew. Who takes?
100% to nephew.
Decedent dies intestate survived by only his brother and his nephew. Who takes?
100% to brother.
To disinherit someone, the testator must make a….
complete disposition of their estate by will.
[only way to avoid intestacy laws]
In Virginia, descendants take per….
capita with representation.
In per capita with representation distribution, the decedent’s property is divided into equal shares at the….
first generational level with living takers.
The shares of predeceasing descendants pass to…
their issue, by right of representation.
Adopted children and their descendants inherit from and through…
their adopting parents as though they were a natural child.
Adoption cuts off inheritance rights from natural parents, and vice versa, EXCEPT when:
Adoption is by the spouse of a biological parent.
Does a stepchild or foster child who is not legally adopted have inheritance rights from her stepparent or foster parent?
No
What is the first way a nonmarital child may get full inheritance rights from their natural father?
The father marries the mother before or after the child’s birth.
(even if the attempted marriage is void or voidable)
If a nonmarital child’s natural parents never get married, how can the court establish parental rights of the natural father?
By clear and convincing evidence that:
- Birth certificate notation of father;
- Admittance to paternity in court or a writing under oath;
- DNA test, or other medical evidence;
- Cohabitation, openly with the mother during her entire pregnancy;
- Allowance (child support), which was ordered to be paid by the father following a paternity suit.
- Tax returns (or other government documents), showing that the father claimed the child.
- Surname, when the child uses their natural father’s.
If parentage was established in a paternity suit or if the father attempted to marry the mother, the father and his kin…
have inheritance rights from and through the child.
If parentage was established by proof of one of the “clear and convincing” (BADCATS) grounds, the father and his kin…
may inherit only if the father openly treated the child as his and did not refuse to support the child.
For inheritance purposes, a child conceived by artificial insemination or IVF, is the child of a person who…
consented to be a parent, in writing, prior to conception, provided that the child is born within that person’s lifetime OR within 10 months of that person’s death.
[think – if one’s boyfriend died, they could get pregnant the month after and he could be considered the parent]
What if a child was conceived, but then the father passed away prior to the child being born?
The child born thereafter takes as if born during the decedent’s lifetime.
[note that this applies to other relatives as well, for purposes of issues].
Half-blood siblings take…
1/2 as much as whole blood siblings.
In Virginia, an inter vivos gift made to a child or other descendant is presumptively an…
Advancement.
The presumption of advancement may be rebutted by…
affirmative proof that the gift was not intended to be an advancement.
If it has been determined that an advancement was made, the recipient’s remaining share will be computed by…
- Adding the amount of the advancement back into the estate;
- Calculating the share of each heir;
- Deducting the amount of the advancement from the share of the recipient.
If there is a deficit in the estate after computation of the advancement, how will this be rectified?
The other heirs will divide the deficit pro rata.
