Wills Flashcards
Property may pass by intestate succession when
3 reasons
(1) a decedent dies without having made a will
(2) a decedent’s will is denied probate or
(3) a decedent’s will does not dispose of all of his property, either because a gift has filed or because the will contains no residuary clause
Intestate Share of Surviving Spouse: Descendants Also Survive
In most states, if the decendent leaves descendants as well as a surviving spouse, the spouse takes 1/3 or 1/2 of the estate.
Some states give the surviving spouse a specific dollar amount plus 1/3 or 1/2 of the estate
In states adopting the UPC, the surviving spouse takes the entire estate if the decedent is survived by descendants, all of whom are descendants of the surviving spouse, and the surviving spouse has no other surviving descendant
Intestate Share of Surviving Spouse: No Descendants Survive
In most states, if the decedent is survived by a spouse but no descendants, the surviving spouse takes the ENTIRE ESTATE.
In UPC states, the spouse takes the entire estate only if the decedent is not survived by descendants or parents
Intestate Share of Children and Other Descendants
The portion of the estate that does not pass to the surviving spouse, or the entire estate if there is no surviving spouse, passes to the decedent’s children and descendants of deceased children.
Majority Rule: Per Capita with Representation
Compare: Classic Per Stirpes
Modern Trend: Per Capita at Each Generational Level
Per Capita with Representation
In most states, a decedent’s descendants take their shares per capita with representation, which means the property is divided into equal shares at the first generational level at which there are living takers. Each living person at that level takes a share, and the share of each deceased person at that level passes to his issue by right of representation
Classic Per Stirpes
Under the classic (or strict) per stirpes distribution of the common law, one share passes to each child of the decedent, regardless of whether there are living takers at that level. A deceased child’s descendants take the child’s share by representation. This method is still used in a minority of states
Per Capital at Each Generational Level
Modern trend. A growing number of states and the UPC make the initial division of shares at the first generational level at which there are living takers, but the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level. Persons in the same degree of kinship to the decedent always take equal shares.
Shares of Other Heirs
If the decendant is not survived by a spouse or descendants, the estate is distributed to other heirs in the order below, proceeding down the list until takers are found;
(1) Parents or surviving parent
(2) brothers and sisters and their descendants
(3) 1/2 to paternal grandparents and 1/2 to material grandparents and their descendants (both halves to one side if there are no takers on the other side)
(4) 1/2 to nearest kind on maternal side and 1/2 to nearest kin on paternal side (all to one side if there are no kin on the other side)
Failing the above, the estate escheats to the state.
Adopted Children
For the purposes of intestate succession, adopted children are treated the same as the natural children of the adopting parents. There is no inheritance in either direction between adopted children and their natural parents, except where one of the natural parents marries an adopting parent, or the child is adopted by a close relative
Stepchildren and Foster Children
Generally, stepchildren and foster children have no inheritance rights unless adopted by the stepparent or foster parent.
Adoption by Estoppel
Allows a child to inherit from or through a stepparent or foster parent when legal custody of a child is gained under an (unfulfilled) agreement to adopt him
Posthumous Children
Generally, one cannot claim as an heir of another unless he was alive at that person’s death.
Exception: posthumous descendants of the defendant (child in gestation at the time of the decedent’s death)
Nonmarital Children
Always inherits from his mother.
Will inherit from father if
(1) father married the mother after the child’s birth
(2) man was adjudicated to be his father in a paternity suit
(3) after his death and during probate proceedings, the man is proved by clear and convincing evidence to be the father
No Distinction Between Half Bloods and Whole Bloods
Half bloods are brothers and sisters with only one common parent.
UPC and most states make no distinctions between half bloods and whole bloods; they inherit equally.
Inheritance Clause
Common law and most states: will provision expressly disinheriting an heir is ineffective as to any property passing by intestacy (the will must effectively dispose of everything in order to disinherit an heir)
UPC and by statute: testator may exclude the right of an individual to succeed to property passing by intestate succession. If that person survives the decedent, his intestate share passes as though he had disclaimed it
Simultaneous Death
A person cannot take as an heir or will beneficiary unless he survives the decedent.
Because it is sometimes difficult to determine whether one person survived the other, many states have adopted the Uniform Simultaneous Death Act (USDA).
1/2 of states follow traditional USDA, 1/2 follow Revised USDA (120 rule)
Neither statute applies if the decedent’s will or other instrument makes a different provision regarding survival.
USDA
When disposition of property (by will, intestacy, joint tenancy, etc.) depends on the order of death and the order cannot be established, the property of each decedent is disposed of as if he had survived the other.
In cases of tenancy with right of survivorship: 1/2 of tenancy passes through the estate of each party.
Applies only if there is no sufficient evidence of survival (even by minutes– USDA does not apply)
Revised USDA/120 Rule
A person must survive the decedent by 120 hours in order to take any distribution of the decedent’s property
Disclaimers
A beneficiary can disclaim an interest, which results in the interest passing as if the disclaiming party predeceased the decedent.
To be effective for fed tax purposes: must be
- in writing
- irrevocable
- filed within 9 months of decedents death OR beneficiary’s 21st birthday
Special rule for surviving joint tenants for fed tax purposes:
- May disclaim interest only within 9 months from other joint tenant’s death
- Holder of future interest may disclaim only within 9 months after the interest was created
Disclaimer on Behalf of Infant, Incompetent, or Decedent
May be made by guardian of infant/incompetent, or a personal representative on behalf of the decedent if the court finds it is in the best interests of those interested in the estate of the beneficiary and is not detrimental to the best interests of the beneficiary.
Disclaimer: Estoppel
An interest cannot be disclaimed if the heir or beneficiary has accepted the property or any of its benefits
Disclaimer: Creditors’ Claims
A disclaimer can be used to defeat creditor’s claims; the disclaimant has no interest that can be reached by creditors.
However: disclaimer cannot be used to defeat a federal tax lien.
Disclaimer of Life Estate: Effect on Remainder
Because interest passes as though disclaimant predeceased the decedent, disclaimer of a life estate accelerates the remainder
Decedent’s Death Caused by Heir or Beneficiary
One who feloniously and intentionally bring about the death of a decedent forfeits any interest in the decedent’s estate. The property passes as though the killer predeceased the victim.
Usually reached by operation of a specific statute (“slayer statute”) or by imposition of a constructive trust
Effects all types of transfers (insurance proceedings, family allowance, etc.) Also loses benefit of right of survivorship in any property so held w/ decedent, although killer does not forfeit his own share