Subsidiary Problems Common to Intestacy and Wills

Question 1

Advancement of Intestate Share

Answer 1

• advancement = lifetime gift to an heir w/ intent that gift be applied against any share the heir inherits from donor’s estate
• at common law, presumed advancement if substantial lifetime gift given to one of decedent’s children
• most courts now apply the doctrine to any heir BUT reverse the common law presumption -> lifetime gift presumptively NOT advancement unless shown to be intended as such
• UPC states (+ many non-UPC) go further -> find advancement only if it is:
  1) declared as such in a contemporaneous writing by donor OR
  2) acknowledged as such in a writing by the heir

Question 2

Procedure if Advancement Found

Answer 2

• if found to be an advancement, the gift’s value when given is added back into the estate for purposes of calculating shares, + then subtracted from recipient’s share
• heir need not return the amount of the advancement in excess of the value of their intestate share

Question 3

Advancee Predeceases Intestate

Answer 3

• generally, an advancement is binding upon those who succeed to the estate of the advancee if the advancee predeceases the intestate
• in UPC states, however, advancement is not binding on the advancee’s successors unless the required writing states that it is

Question 4

Simultaneous Death

Answer 4

person can’t take as an heir or will beneficiary unless they survive decedent
- nearly all states have adopted a version of the Uniform Simultaneous Death Act -> provides that when disposition of property depends on order of death + order can’t be established, property of each decedent is disposed of as if they had survived the other
-> for tenancy w/ right of survivorship, half of the property passes through the estate of each party
-> USDA applies ONLY if no sufficient ev of survival though (if ev of survival by even minutes, USDA doesn’t apply)

Question 5

120-Hour Rule

Answer 5

• many states + UPC require that person survive decedent by 120 hours to take any distribution of the decedent’s property

Question 6

Simultaneous Death - Application of Statutes

Answer 6

• apply unless governing instrument provides otherwise
• neither the USDA nor the 120-Hour Rule apply if decedent’s will or other instrument makes a different provision regarding survival

Question 7

Disclaimers

Answer 7

• an heir, will beneficiary, life insurance beneficiary, surviving joint tenant, etc. cannot be forced to accept an inheritance or gift under a will
• heir or beneficiary can disclaim an interest

Question 8

Reasons to Disclaim

Answer 8

• burdensome (ex: fear of liability if property contains toxic waste dump)
• tax - disclaimed property not treated as a gift from the disclaimant to the eventual recipient
• avoid creditors - in many states, disclaimed property cannot be reached by disclaimant’s creditors

Question 9

Requirements of Disclaimer

Answer 9

• in most states, disclaimer must be written, signed by disclaimant, acknowledged before a notary, + filed w/ the appropriate court w/in nine months of death
• to be effective for fed tax purposes, disclaimer must be in writing, irrevocable, + filed w/in nine months of decedent’s death or beneficiary’s 21st birthday
  -> for fed tax purposes, a surviving joint tenant may disclaim their interest only within nine months from other joint tenant’s death
  -> holder of a future interest may disclaim only within nine months after the interest was created

Question 10

Disclaimer Made on Behalf of Infant, Incompetent, or Decedent

Answer 10

• disclaimer may be made by a guardian on behalf of an infant or incompetent, or a personal rep on behalf of a decedent if the court finds that it is in the best interests of those interested in the estate of the beneficiary and is not detrimental to the best interests of the beneficiary

Question 11

Disclaimer and Estoppel

Answer 11

• estoppel if any benefits have been accepted -> interest cannot be disclaimed if the heir or beneficiary has accepted the property or any of its benefits

Question 12

Effect of Disclaimer

Answer 12

• disclaimed property passes as if the disclaimant had predeceased the defendant
• disclaimant cannot choose the recipient of the property
• disclaimer of a life estate just accelerates the remainder

Question 13

Decedent’s Death Caused by Heir or Beneficiary

Answer 13

• in nearly all states, a person who feloniously and intentionally brings about the death of a decedent forfeits any interest in the decedent’s estate
• the property passes as though the killer predeceased the victim
• the result is usually reached by the operation of a specific statute (called a “slayer statute”) or by imposition of a constructive trust

Question 14

Slayer Rules - Types of Transfers Affected

Answer 14

• killer is disqualified from taking ANY interest or benefit
  -> includes insurance proceeds, family allowance, etc.
• killer also loses benefit of the right of survivorship in any property so held with the decedent, although the killer does not forfeit own share
• all types of transfers affected

Question 15

Slayer Rules - Evidentiary Standard for Proof of Killing

Answer 15

• conviction of murder in any degree is conclusive for purposes of this type of statute
• courts are divided on how to handle lesser degrees of killing
• in absence of murder conviction, court must generally find that the killing was unlawful or intentional by a preponderance of the evidence before applying the forfeiture rule