Subsidiary problems common to intestacy and wills Flashcards
Advancee predeceases intestate
Generally, an advancement is binding upon those who succeed to the estate of the advancement if the advancee predeceases the intestate
In UPC - an advancement is not binding on the advancee’s successors unless the required writing states that it is
Simultaneous death - will or other instrument has clause re survival
Neither the USDA or the 120-hour rule apply if the decedent’s will or other instrument makes a different provision regarding survival
Disclaimers
An heir, will beneficiary, life insurance beneficiary, surviving joint tenant, etc, cannot be forced to accept an inheritance or gift under a will
The heir or beneficiary can disclaim an interest
Reasons to disclaim
Burdensome - fear of liability if property contains a toxic waste dump
Tax
Avoid creditors - in many states, disclaimed property cannot be reached by the disclaimant’s creditors
- but cannot be used to defeat a federal tax lien
Requirements of disclaimer
In most states, a disclaimer must be written, signed by the disclaimant, acknowledged before a notary, and filed with the appropriate court within nine months of death
- modern view is can disclaim at any time as long as no acceptance or use of benefits from gift
Requirements of a disclaimer for federal tax purposes
To be effective for federal tax purposes, the disclaimer must be in writing, irrevocable, and filed within nine months of the decedent’s death or the beneficiary’s 21st birthday
A surviving joint tenant may disclaim their interest only within 9 months from the other joint tenant’s death
- and the holder of a future interest may disclaim only within nine months after the interest was created
Disclaimer on behalf of infant, incompetent, or decedent
A disclaimer may be made by a guardian on behalf of an infant or incompetent, or a personal representative 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
Disclaimer estoppel and benefits
An interest cannot be disclaimed if the heir or beneficiary has accepted the property or any of its benefits
Effect of disclaimer
The disclaimed property passes as if the disclaimant had predeceased the decedent
The disclaimant cannot choose the recipient of the property
Disclaimer of a life estate accelerates the remainder
Death caused by heir or beneficiary
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
Property passes as though the killer predeceased the victim
Usually through a slayer statute or by imposition of a constructive trust
Disqualifies killer from taking any interest or benefit - and loses benefit of the right of survivorship
- but does not forfeit their own share of the survivorship right
Proof of killing
A conviction of murder in any degree is conclusive for purposes of the slayer statute or constructive trust
Courts are divided on how to handle lesser degrees of killing
- absence of murder conviction, must generally find that the killing was unlawful or intentional by a preponderance of the evidence
