Succession Issues

Question 1

Simultaneous Death in Will

Answer 1

When it cannot be determined by CLEAR AND CONVINCING EVIDENCE who survived whom, then it is deemed the one person did not survive the other

If you can establish by clear and convincing evidence that devisee survived for even a split second, devisee takes. But if not, then law provides that devisee predeceased testator

Gift either lapses or anti-lapse

Question 2

Joint Tenancy simultaneous death

Answer 2

if can’t tell by clear and convincing evidence who survived whom, you sever the joint tenancy and goes to each estate

Question 3

Spouses or Domestic Partners Simultaneous death

Answer 3

Can’t tell by clear and convincing evidence who survived whom, community property and quasi community property is severed and split equally

Question 4

Life or accident insurance

Answer 4

(1) see if there is an alternative beneficiary named;

2) if no alternative beneficiary, policy proceeds are paid to the INSURED’s estate (treat as if insured survived

Question 5

120 hour rule (applies only to intestate succession)

Answer 5

For any heir to take under intestate succession, heir must survive the intestate by 120 hours

if it cannot be determined by clear and convincing evidence that survived by 120 hours, deemed that heir did not survive and heirs are determined accordingly

NOTE: 120 hr rule does NOT apply if the property would escheat

Question 6

Disclaimer

Answer 6

Beneficiary may disclaim any interest and interest passes as though disclaiming party predeceased decedent

Must be (1) in writing, (2) signed by the disclaimant, (3) identify decedent, (4) describe the interest being disclaimed, and (5) state that there is a disclaimer and the extent of it

Must be filed within a REASONABLE TIME after heir or beneficiary learns of the interest (nine months after death of decedent is deemed reasonable)

Can disclaim on behalf of an infant, competent, or decedent

Question 7

Advancements

Answer 7

Def: lifetime gift made to an heir with the intent that it be applied against any share the heir inherits

For inter vivos gift to be an advancement toward and heir’s share, must be IN WRITING

Question 8

Legacies

Answer 8

Lifetime gifts to will beneficiaries

Testamentary gift may be satisfied by an inter vivos transfer to the beneficiary if (1) the testator provides for satisfaction in the instrument itself or in a contemporaneous writing; or (2) the donnee acknowledges, in writing, that the gift is one in satisfaction

Question 9

Slayer

Answer 9

One who feloniously and intentionally kills the decedent is NOT entitled to any property or benefit under the will or intestate succession inheritance

Question 10

Elder Abuse

Answer 10

any person who commits physical abuse, neglect, or fiduciary abuse of an elder or dependent adult is prevented from receiving property from the victim’s estate

Deemed to predecease the decedent