Subsidiary Problems Common to Intestacy and Wills

Question 1

Advancement of Intestate Share

Answer 1

UPC states, as well as many non-UPC states, say it is an advancement only if it is:

1. declared as such in a contemporaneous writing by the donor, or
2. acknowledged as such in a writing by the heir (which need not be contemporaneous).

Question 2

Procedure if Advancement is 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, and then subtracted from the recipients share.

The advancement goes into the “hotchpot”

Their heir need not return the amount of an advancement in excess of the value of their intestate share.

Question 3

Parent has two children, Andrew and Ben. Parent makes a $10,000 advancement to A and then dies with a $20,000 estate. What happens?

Answer 3

$10k advance + $20k estate = $30k

$30k / 2 (A and B) = $15k

B receives $15k.

A receives $5k ($15k share - $10k advancement).

Question 4

Advancee Predeceases Intestate

Answer 4

Generally, an advancement is binding upon those who succeed to the estate of the advancee if the advancee predeceases the intestate.

In UPC states, an advancement is not binding on the advancee’s successors unless the required writing states that it is.

Question 5

Simultaneous Death

Answer 5

UPC - 120 hour rule, must survive decedent by 120 hours (5 days) in order to take as a beneficiary.

If requirement not met, heir treated as predeceased and property of decedent distributed accordingly.

Question 6

Disclaimers

Answer 6

An heir does not have to accept an inheritance or gift under a will. The heir or beneficiary may disclaim their interest.

A Disclaimer must be:
1. in writing
2. signed by the disclaimer
3. acknowledged in front of notary
4. timely filed.

Modern View: you may disclaim at any time as long as you have not accepted or benefited from gift.

You treat the person who disclaimed as predeceased.

Question 7

Decedent’s Death Caused by Heir or Beneficiary

Answer 7

Slayer statue precludes killer form inheriting or being beneficiary.

Court can impose a constructive trust if no slayer statute.

A conviction of murder in any degree is conclusive for purposes of this type of statute.

In the absence of a murder conviction, the court must generally find that the killing was unlawful or intentional by a preponderance of the evidence before apply this forfeiture rule.