intestate succession Flashcards
how to determine shares under intestate succession laws
step 1
Calculate share of surviving spouse, if there is a surviving spouse
step 2
Follow the general rule of order
surviving spouse’s share
If there are no descendants – 100%
if there are descendants shared by decedent and surviving spouse – 100%
if the decedent leaves descendants who are only related to decedent = 1/3 share
[2/3 SPLIT AMONG THE DESCENDANTS]
if spouse willfully deserts or abandons the other spouse and the desertion continues until abandoned spouse’s death = nothing
[+ will not be appointed administrator of the estate if a beneficiary files an objection]
General rule of order
General rule of order
(1) descendants
(2) parents
– one parent = everything
– 2 parents = split equally
[exception: if parent willfully deserved minor or incapacitated child and it continued till child’s death, parent is disqualified from inheriting]
(3) descendants of parents
[brothers and sisters or their issue]
(4) grandparents and descendants of grandparents
– 1/2 to maternal and 1/2 to paternal and their descendants
– if no g-parents, goes to nearest lineal ancestors [great grandparents]
(5) decedent’s predeceased spouse’s relatives
[same rule of order]
(6) next of kin
– anyone with blood relationship
(7) escheat to the Commonwealth
method of determining shares
“Per capital with representation”
Step 1: Find first generation below the decedent with at least one living member
Step 2: Calculate the number of shares by counting the number of living individuals and the number of predeceased individuals with living issue
Step 3: Distribute shares to living individuals and the issue of predeceased individuals. If a predeceased individual has more than one issue, divide the share equally among the issue
Descendant includes whom?
people related to decedent in a direct line, such as children or grandchildren, including children legally adopted
— no equitable adoption
— no step children
— no foster children
how are non marital children treated?
– Full inheritance from mother and mother’s kin
— Father is deemed a parent from whom child may inherit and who may have inheritance rights from and through the child IF:
(1) father married mother before or after child’s birth [even if void or voidable]
(2) parentage was established in a paternity suit
(3) father attempted to marry the mother
(4) it is established by clear and convincing evidence one of the following 7 grounds; however, father and kin can only inherit from and through the child if father openly treated child as his and did not refuse to support child
(c) man allowed child to use his surname
(d) man claimed child as his on a tax return or other government document
(e) man was adjudged the father in a paternity suit and ordered to pay child support
(f) man admitted paternity in court or in writing under oath
(g) genetic tests or other medical or anthropological evidence establishes that the man is the child’s father
how are adopted children treated
Adopted child can inherit from and through adoptive parents as if she was a natural child, and adoptive parents may inherit from and through the child
Adoption cuts off inheritance rights from natural parents or their kin except in cases of:
– Adoption by spouse of a bio parent [has no effect on relationship between spouse and either bio parent]
— Court order that involuntarily terminates parental rights
what are advancements
lifetime gifts
if decedent gives a gift, or loan to a child or other descendant, such a gift is presumed to be an “advancement,” or an “advance payment,” to be taken into account in making an intestate distribution [note that “satisfaction of legacies” applies for gifts when there is a will]; Note –advancement does not apply against gift-recipient’s descendants
Overcoming the presumption that the gift was an advancement=
affirmative proof that the gift was not intended to be and advancement, such as statements from the grantor
how to calculate advancement
Step 1: add the amount of the advancement back into the estate
Step 2: calculate the share of each heir
step 3: Step 3: deduct the amount of the advancement from the share of the recipient of the gift
Step 4: if there is a deficit [that is, subtracting the amount of the gift from the recipient’s share puts the number in the negative], divide the deficit pro rata among the other heirs
bars to intestate succession
(1) 120 hour rule
(2) disclaimers
(3) slayer statute
120 hour rule
One must survive the decedent by 120 hours to take as an heir. An individual who fails to survive for that period will be considered to have predeceased the decedent. This must be established by clear and convincing evidence.
This statute also applies to all donative instruments, unless the instrument itself says it does not
(TOD and POD transfers, survivorship estates, life insurance policies, pension plans, deeds, wills, trusts.)
disclaimers
A beneficiary or heir may disclaim an interest that otherwise would have passed to them from the decedent’s estate. The interest will pass as though the disclaiming party predeceased the decedent.
(must be in writing and delivered)
slayer statute
Someone convicted of, or determined by a PREPONDERANCE of the evidence to have committed, murder or voluntary manslaughter forfeits all interests in the victim’s estate.
The Slayer will be deemed to have predeceased the victim AND ANTI LAPSE STATUTE will apply [but non-descendants claiming through slayer will be barred]
WHO PROTECTED:
- A bona fide purchaser from slayer is protected if purchase occurs before the interests of the slayer have been adjudicated
OTHER CRIMINAL LIABILITY
- A constructive trust may be imposed on property received by a beneficiary or heir who participates in the willful and unlawful killing of another [ex: is an accessory after the fact]
IF JOINT OWNERS
- Slaying your joint owner in a joint tenancy with right of survivorship, tenancy by the entirety, or joint bank account means you forfeit the benefits of the right of survivorship
