Subsidiary Problems Common to Intestacy and Wills

Question 1

What is the general rule regarding heirs surviving the decedent?

Answer 1

You must survive the decedent to inherit.

Question 2

How do states approach difficult determinations about whether someone survived the other (both die in the same car accident, for example)?

Answer 2

Half of states use the Uniform Simultaneous Death Act. The other half use the UPC approach found in the Revised Uniform Simultaneous Death Act, also known as the 120 hour rule.

Question 3

What rule for simultaneous death succession is provided for in the Uniform Simultaneous Death Act?

Answer 3

When disposition of property (e.g., by will, intestacy, right of survivorship) depends on the order of death and the order cannot be established, the property of each is disposed of as if each had survived the other. The USDA only applies when there is sufficient evidence that one person outlived the other (for any amount of time). If there is evidence that one survived the other for even a few minutes, the property will pass from the first decedent to the other.

Question 4

What rule for simultaneous death succession is provided for in the Revised Uniform Simultaneous Death Act/120 Hour Rule?

Answer 4

A person must survive a decedent by 120 hours in order to take any distribution of the decedent

Question 5

Does either there USDA or RUSDA apply in the face of a contrary will provision?

Answer 5

No.

Question 6

May a beneficiary disclaim an interest?

Answer 6

Yes, the interest will pass as though the disclaiming party predeceased the decedent.

Question 7

What are the requirements for a beneficiary’s disclaimer to be effective for federal tax purposes?

Answer 7

It must be in writing, irrevocable, and file within nine months of the decedent’s death, the creation of a future interest, or the beneficiary’s 21st birthday.

Question 8

May a disclaimer be made on behalf of an infant, incompetent, or decedent?

Answer 8

Yes, if a court finds that it is in the best interests of those interested in the beneficiary’s estate and not detrimental to the beneficiary’s own interest.

Question 9

When will a beneficiary be estopped from disclaiming an interest?

Answer 9

When they have accepted the property or any of it benefits.

Question 10

Can a disclaimer defeat creditors’ claims?

Answer 10

Yes, but cannot be used to defeat a federal tax liens.

Question 11

What is the effect of the disclaimer of a life estate?

Answer 11

It accelerates the remainder.

Question 12

What is the consequence for inheritance when a decedent’s death is caused by an heir or beneficiary?

Answer 12

In nearly all states, one who feloniously and intentionally brings about the death of a decedent forfeits their interest in the estate and the property will pass as if the killer predeceased the decedent (usually by either a state “slayer” statute or imposition of a constructive trust). This affects all types of transfers.

Question 13

What is the evidentiary standard for proof of killing when a decedent’s death is caused by an heir or beneficiary?

Answer 13

A conviction of murder in any degree will be conclusive. Absent a conviction, the court must find that the killing was unlawful and intentional by a preponderance of the evidence.

Question 14

What is an advancement?

Answer 14

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.

Question 15

How does common law determine whether an advancement has occurred?

Answer 15

A substantial lifetime gift to a decedent’ child was presumed an advancement.

Question 16

How do most modern courts determine whether an advancement has occurred?

Answer 16

A substantial lifetime gift to any heir is presumed not to be an advancement unless it is shown to be intended as such.

Question 17

How do UPC states determine whether an advancement has occurred?

Answer 17

An advancement has only occurred where (1) it is declared as such in a contemporaneous writing by the donor, or (2) acknowledged as such in a writing by the heir (need not be contemporaneous).

Question 18

What is the procedure if advancement is found?

Answer 18

The gift’s value when given will be added back into the estate for the purpose of calculating shares. An heir need not return the amount of an advancement in excess of the value of the intestate share.

Question 19

What happens when an advancee predeceases the intestate?

Answer 19

An advancement is typically binding on those who succeed to the estate of the advancee. Under the UPC, however, it will only be binding if the required writing states that it is.

Question 20

When is a testamentary gift satisfied by an inter vivos transfer?

Answer 20

An inter vivos transfer from the testator to the beneficiary subsequent to the execution of the will will operate to satisfy the testamentary gift in whole or in part if the testator intended it to have that effect. Under the UPC, satisfaction only occurs if the testator provides for satisfaction in the will or a contemporaneous writing or the devisee acknowledge the gift as a satisfaction in writing. However, no writing is required where the testator gives specifically described property, which will cause satisfaction and ademption.

Question 21

What is the scope of the doctrine of satisfaction of legacies?

Answer 21

Only to general legacies, not specific bequests. A lifetime gift of specific property devised in the will is subject to the doctrine of ademption by extinction.