Pg 4

Question 1

What are the things that survival applies to?

Answer 1

Intestacy, wills, trusts, life insurance, joint tenancy

Question 2

What is survival?

Answer 2

Unless otherwise provided, if title to property depends on the priority of death, and it cannot be established by clear and convincing evidence that one person survives the other, then the property of each is administered as if that person survived the other.

Question 3

What is the simultaneous death act?

Answer 3

When a married couple both dies simultaneously, the law assumes that each pre-deceased the other. This treats each one’s estate like they had no surviving spouse. The burden is then on the claimant to show that they survived the other.

Question 4

What are the elements of survival under the simultaneous death act?

Answer 4

• must show by clear and convincing evidence that one survived over the other person
  – must have survived at least five days or 120 hours (from 1999 onward)

Question 5

The elements for survival only apply to what type of law?

Answer 5

Intestacy because other “at death transfers“ do not often have a 120 hour requirement

Question 6

Before 1999 what was the rule with regard to survival?

Answer 6

You only needed sufficient evidence of who died first (there was no 5 day/120 hour rule)

Question 7

If under survival a person fails to survive the decedent by 120 hours, what is the presumption under intestacy?

Answer 7

That he died before the decedent.

Question 8

If a will or some other instrument specifies how long you have to survive the decedent in order to take under the will, what happens if you don’t?

Answer 8

You don’t take under the will

Question 9

If an insured person and a beneficiary under that policy both die and it cannot be shown by clear and convincing evidence that the beneficiary survived the insured, what happens?

Answer 9

The policy is administered as if the insured survived the beneficiary

Question 10

If property is held by two joint tenants and both die, but it cannot be shown by clear and convincing evidence that one survived the other, what happens?

Answer 10

The property is administered half as if one joint tenant survived and half as if the other joint tenant survived. This basically means that the law treat this as a tenancy in common and each gets a divisible half interest in the property.

Question 11

If a husband and wife both die leaving quasi-community property or community property and it cannot be shown by clear and convincing evidence that one spouse survived the other, what happens?

Answer 11

Half of the community property is administered as if one spouse survived and the other and half is administered as if the other spouse survived. So the court essentially separates the property into half interests and half goes to the one spouse and his heirs and a half goes to the other spouse and her heirs.

Question 12

What are the statutory or common law bars to succession with regard to survival?

Answer 12

These are four different categories that could stop someone from inheriting even though they were in a position to take. It treats that person as predeceasing the decedent.

Question 13

What are the four categories of statutory or common law bars to succession under survival?

Answer 13

• slayers
  – other areas that are deemed unworthy to inherit because of wrongdoing
  – disclaimer where the heir voluntarily relinquished his right to inherit
• advancements

Question 14

What is involved in the bar to succession for slayers?

Answer 14

A person that feloniously and intentionally killed the decedent is not entitled to any property or benefit under his will, or any property under intestate succession.

Question 15

What is required to prove that someone was a slayer in order to bar them from taking in succession?

Answer 15

There must be a final judgement of conviction of a felonious and intentional killing. This must be a criminal conviction that is proved beyond a reasonable doubt, or if the court determined by a preponderance of the evidence that the killing was felonious and intentional.

Question 16

What are things that wouldn’t be included to bar a slayer from taking from the decedent’s estate?

Answer 16

Involuntary manslaughter or self-defence because these are not felonious or intentional

Question 17

What is the rationale behind the bar on a slayer taking from the decedent’s estate?

Answer 17

Public policy cannot allow one party to profit from killing another. This disincentivizes people from killing others to get their property and doesn’t put them in any worse position than they were in before the killing.

Question 18

What are the two different approaches to the slayer statute if someone kills another person and is slated to take from their state?

Answer 18

– constructive trust

- slayer statutes

Question 19

What is involved in the constructive trust approach with regard to slayers?

Answer 19

If the jurisdiction has no slayer statute, courts will create a constructive trust, which is an equitable remedy, to avoid unjust enrichment. The court tells the slayer that he is holding the property like a trustee and that he has legal title, but that he has a duty to turn the property over to the rightful owner.

Question 20

What is involved in slayer statutes?

Answer 20

The killer is deemed to have pre-deceased the decedent. You just skip right over them and give the property to the next person in line

Question 21

What happens if a killer and his victim hold property as joint tenants?

Answer 21

That creates a severance of the interest so that the decedent’s share passes as his property and the slayer has no right of survivorship. It essentially converts a joint tenancy into a tenancy in common and extinguishes that right of survivorship.

Question 22

What happens if a slayer was the named beneficiary of a life insurance policy for the decedent?

Answer 22

If the slayer feloniously and intentionally killed the decedent, he is not entitled to any benefit under the policy and it becomes payable as though he predeceased the decedent

Question 23

What is involved in the statutory bar to succession for other areas that are deemed unworthy to inherit because of wrongdoing?

Answer 23

Any person will be treated as if they died before the decedent if it can be shown by clear and convincing evidence that they were liable for physical abuse, neglect or financial abuse if the decedent was an elder or dependent adult. Some states include a parent that abandoned, abused, or neglected his child (cannot inherit from his child).

Question 24

What is involved in the statutory or common law bar to succession for disclaimer?

Answer 24

An heir can voluntarily relinquish his right to inherit by saying he doesn’t want his share in order to avoid taxes or creditors. If he does this, his share will pass as if he predeceased the decedent. He just has to file a disclaimer in writing and signed within a reasonable time after he gets knowledge of his interest. This is presumed timely if filed within nine months.

Question 25

If a husband dies leaving a wife and adult child with an estate of 100M in separate property, and the wife would get 50M and the kid would get 50M, but the wife’s tax bracket is 40% and the kid’s bracket is 20%, what can the wife do to avoid this?

Answer 25

She may figure that her son will get that money anyway, so she can disclaim her share and treat it like she pre-deceased her husband, so that her kid takes everything at only 20% tax.

Question 26

What is the timing for when the disclaimer rule for a statutory or common law bar to succession applies?

Answer 26

It relates back to the date of death. So the property never passes to someone that disclaims it, it bypasses them and treats them like they died before the decedent.

Question 27

What is an exception to the disclaimer in order to bar succession?

Answer 27

If you qualify for Medicaid benefits and you inherit property but your disclaim it so that you can keep your Medicaid, that does not work.

Question 28

What is essential for a disclaimer to avoid succession of benefits?

Answer 28

It must be in writing and signed

Question 29

What is involved in the statutory bar to succession for advancements?

Answer 29

If a person dies intestate, the property that he gave during his lifetime to an heir is treated as an advancement against that heir’s share if certain conditions are satisfied. Advancements only apply to intestacy if:
– the decedent declares it in a contemporaneous writing, or
– the heir acknowledges it in writing