Subsidiary Problems Common to Intestacy and Wills Flashcards
What is an Advancement?
Lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor’s estate
Common Law: substantial lifetime gift to one D’s children was presumed an advancement
Most States: reverse, lifetime gift is presumptively NOT advancement UNLESS shown to be intended as such
UPC: Advancement ONLY IF: 1) declared as such in a contemporaneous writing by the donor, or 2) acknowledged as such in a writing by the heir
Procedure if theres an Advancement?
gift’s value when given is added back into the estate for purposes of calculating shares, and then subtracted from the recipient’s share. hotchpot
Advancee Predeceases Intestate
Generally, advancement is binding on those who succeed to the estate
UPC: opposite; advancement is not binding on the advancee’s successors UNLESS the required writing states that it is.
Simultaneous Death
a person cannot take as an heir or will beneficiary unless they survive the D;
Simultaneous death rules (USDA/120hr) do not apply if D has a will that makes a different provision regarding survival
USDA
provides that when disposition of property depends on the order of death and order can’t be established, prop of each D is disposed of as if they had survived the other.
If there is evidence that an heir survived the D by even minutes, the USDA does not apply.
120 hour rule
UPC and Half of states; rule requires that a person survive the D by 120 hours (5 days) to take any distribution of D’s prop
Disclaimer Requirements
a disclaimer must be written, signed by the disclaimant, acknowledged before a notary, and filed with the appropriate court within 9 months of death
to be effective for federal tax purposes, the disclaimer must be in writing, irrevocable, and filed within 9 months of D’s death or beneficiary’s 21st bday
Disclaimers
An heir or beneficiary cannot be forced to accept an inheritance or gift under a will. They can disclaim their interest.
A disclaimer may be mad by a guardian on behalf of an infant or incompetent, or a personal rep on behalf of D if court finds that it is in the best interests of those interested in the estate of the beneficiary and it is not detrimental to the best interests of the beneficiary
Effect of Disclaimer
disclaimed prop passes as if the disclaimant predeceased the D
the disclaimer of a life estate accelerates the remainder
D’s death caused by Heir
a person who feloniously and intentionally brings about the death of a D forfeits any interest in the d’s estate; usually done through ‘slayer statute’ or imposition of a constructive trust
A conviction of murder is conclusive evidence for this statute; in absence of a conviction, court must generally find that the killing was unlawful or intentional by a preponderance of the evidence
