Subsidiary Problems Common to Intestacy and Wills Flashcards
what is simultaneous death?
The testator and heir die simultaneously
What is the rule for simultaneous death under the Uniform Simultaneous Death Act?
The beneficiary or heir is treated as though they predeceased the other decedent.
What is the purpose of the Uniform Simultaneous Death Act?
To prevent beneficiaries from paying double inheritance taxes.
When does the USDA apply?
Only when there is “no sufficient evidence” of survival.
What distributions of property does the USDA apply to (e.g. wills? Intestacy?)?
To distributions of property by any means.
What is the 120-hour rule?
If an heir or beneficiary survives the property owner by 120-hours, then the beneficiary takes.
What is a time-of-survival clause?
A time-of-survival-clause are included in wills and set a duration by which the the beneficiary must survive the testator in order to take.
These trump the USDA and the 120-hour rule.
What is a disclaimer?
A beneficiary or heir can refuse (“disclaim”) a gift.
What is the effect of disclaimer?
The disclaiming party is treated like they predeceased the property owner.
What is required in order for a disclaimer to take effect?
It must be:
- In writing
- Irrevocable and
- Filed within nine months of the decedent’s death.
Unless the beneficiary is under 21. Then he has until 9 months after his 21 birthday to disclaim.
Future interests have to be disclaimed within 9 months after they are created.
Joint tenants have to disclaim within 9 months of the other join tenants death.
Are disclaimers on behalf of infants, incompetents, and decedents legitimate?
Yes. As long as they are in the best interests of the incapacitated party.
Can a person disclaim after taking?
No. They are estopped if they have taken from the gift.
Can disclaimers be used to avoid creditors?
Yes.
Can disclaimers be used to avoid Federal tax liens?
No.
What is the effect of disclaiming on remainder interests?
They accelerate—the life tenant is treated as deceased.
What happens when a beneficiary or heir kills the testator?
They are treated as having predeceased the testator.
Joint tenancies are severed and survivorship is forfeited.
What evidence has to be shown in order to conclude that an heir or beneficiary killed the testator?
Either a conviction or evidence that establishes the fact by a preponderance of the evidence.
What is an advancement?
A lifetime gift made to an heir with the intent that the gift be applied against any share the heir inherits from the donor’s estate.
When has there been an advancement?
Common law: whenever there was an inter vivid gift from the testator to the heir.
Modern Law: only when the gift was intended to be an advancement.
UPC: it is either (i) declared as such in writing by the donor or (ii) declared as such in writing by the donee.
What is the procedure for advancement?
The heir’s take is reduced by the advancement but he does not have to pay back surplus.
