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.
