Subsidiary Problems Common to Intestacy and Wills

Question 1

USDA-Uniform Simultaneous Death Act

Answer 1

When disposition of property depends on the order of death and order cannot be established, the property of each decedent is disposed of as if he had survived the other.
*only applies if no sufficient evidence of survival

Question 2

Revised USDA-120 Hour Rule

Answer 2

Many states and UPC require that a person survive the decedent by 120 hours in order to take any distribution of the decedent’s property.

Question 3

decedent’s death caused by heir or beneficiary

Answer 3

• In nearly all states, one who feloniously and intentionally brings about the death of a decedent forfeits any interest in the decedent’s estate.
• Property passes as though killer predeceased the victim
• Conviction of murder is conclusive evidence; if no conviction, the court must find killing was unlawful or intentional by a preponderance of the evidence

Question 4

advancement of intestate share

Answer 4

• An advancement is a lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor’s estate.
• Lifetime gift is presumptively not an advancement unless shown to be intended as such.
• UPC: Advancement only if it is: (i) declared as such in a contemporaneous writing by the donor, or (ii) acknowledged as such in a writing by the heir.
• If advancement, gift’s value when given added back into the estate for purposes of calculating shares, and then subtracted from the recipient’s share