Subsidiary Problems Common to Intestacy and Wills Flashcards
What is Advancement?
An advancement is a lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor’s estate.
What is the Common Law Rule vs. the Modern Rule for Advancement presumption?
Common Law — A substantial lifetime gift to one of the decedent’s child was presumed to be an advancement
Most States — The common law presumption has been reversed. Thus, a substantial lifetime gift is presumptively NOT an advancement, unless shown to be intended as such
- UPC states, as well as many non-UPC states, go further, finding an advancement only if it is there is a declaration or writing indicating that the gift was meant to be an advancement
What is the Procedure if Advancement is Found?
Once it has been determined that an advancement was made, the amount advanced is computed with the net value of the estate for purposes of distribution.
- An heir who has received an advancement has his share reduced by the amount of the advancement. However, if the advancement is greater than the heir’s intestate share, he is not responsible for returning the excess.
Advancement HYPO: H gives land worth $50,000 to her S, her son. H dies intestate survived by S and D, H’s daughter. H’s estate is worth $200,000.
S gets $75,000 and D gets $125,000
Procedure Outlined
1) Add $50k (S’s advancement) to $200k (total estate) — $250k
2) Divide $250k in half — $125k
3) Subtract $50k (S’s advancement) from $125k
- S gets $75,000 of H’s estate
- D gets $125,000 of H’s estate
True or False: An advancement is binding upon those who succeed to the estate of the advancement.
True. Generally, an advancement is binding upon those who succeed to the estate of the advance.
What is the USDA Simultaneous Death Rule vs. the UPC Simultaneous Death Rule?
1) USDA—When disposition of property depends on the order of death and the order cannot be established, the property of each decedent is disposed of as if they had survived the other
- The USDA applies ONLY if there is no sufficient evidence of survival. Thus, the USDA DOES NOT apply if there is evidence that an heir or beneficiary survived the decedent by even minutes
2) 120-Hour Rule — Many states and the UPC require that a person survive the decedent by 120 hours to take any distribution of the decedent’s property.
What are the requirements for a Disclaimer??
- Writing signed by disclaimant
- Acknowledged before a notary
- Filed with appropriate court within 9 months of death
What is the effect of a Disclaimer?
The disclaimed property passes as if the disclaimant had predeceased the decedent.
What happens when the Decedent’s death is caused by Heir or Beneficiary?
The property passes as though the killer predeceased the victim.
- This rule is enforced by a slayer statute or imposition of a constructive trust
