Wills and Estates Flashcards
Escheat
When a person dies intestate and has no heirs, the property escheats to the state.
Per Capita at Each Generation
Default method of distribution; may be modified in will.
Estate divided into as many shares as their are surviving heirs in the nearest degree of kinship + the number of deceased persons in the same degree of kinship who have left issue. Each surviving heir gets their share. The remainder of the estate is them divided equally among the next degree of kinship and in the same manner as the first degree.
Per Capita by Representation
The estate is divided into as many shares as there are a) surviving heirs in the nearest degree of kinship and b) deceased persons in the same degree of kinship who have left issue.
The share of the deceased persons is split equally among only that person’s issue.
Strict Per Stirpes
Even if no survivors, estate divided into equal shares at first generation below decedent.
One share is allocated to each member of that generation, alive or deceased. Children in utero are considered as living at the time of the parent’s death.
Rarely used.
Intestate Share of Surviving Spouse if Spouse and 1 Child Survive
Spouse gets 1/2 undivided interest in the real property and the first $30,000 plus 1/2 of the remaining personal property.
Intestate Share of Surviving Spouse if Spouse and 2+ children/lineal descendants survive
1/3 undivided interest in decedent’s real property, first $30K of personal, and 1/3 of remaining personal.
Intestate Share of Spouse if Spouse and 1+ Parents (no children/descendants)
1/2 undivided interest in real property, first $50K of personal property, 1/2 remainder of personal property
Intestate Share of Spouse if only Spouse Survives
All of real and personal property
Elective Life Estate in lieu of Intestate Share
Life estate in 1/3 of all the value of all real estate owned outright (or as TinC) by decedent alone at any time during the marriage. Some properties may be exempted by law (e.g., property surviving spouse joined in conveying).
NC abolished dower, replaced with this. Dower came free of decedent’s creditors.
Dwelling Place Rule
As an alternative to the Elective Life Estate, surviving spouse may take LE in dwelling house occupied by the surviving spouse at the time of the decedent’s death (along with all fixtures, easements, or real property/outbuildings attached to the dwelling), along with fee simple ownership of furnishings.
This may give spouse more than the Elective Life Estate.
Elective LE/Dwelling Place and Debts
LE and furnishings taken free of decedent’s debts, with some exceptions, even if the estate is insolvent.
Time Requirements
Surviving spouse must file notice of election w/in 12 months of decedent’s death (if no admin appointed), or w/in one month after expiration of time to file claims against estate.
If no election made w/in the time, spouse conclusively deemed to have waived.
Lineal Succession Unlimited
No limit on the right of succession by lineal descendants. (Not “collateral kin.”)
Collateral Succession Limited
Only up to five degrees of kinship removed from an intestate allowed, unless required to prevent escheat to the state.
Determining Degrees of Kinship
Ascend to first common ancestor, the descend from that ancestor to the would-be heir.
Half-blood Kin
No distinction b/w half- and full-blood relatives.
Step-children and inheritance
Not legally children of the parent and cannot take from them by intestate succession.
Unborn heirs
CL treats just like other children. NC statute presumes that children born w/in 10 lunar months (30 days) are children of the decedent.
Adopted children and succession
Treated as natural child for all purposes.
Adoption severs all ties b/w biological parents and child; no succession.
Bastards
Modern view: treated as child of mother. Only treated as child of father if accepted/legitimated as father’s child.
Parent inherit from abandoned child
Nope. They can’t inherit from child if they refused to support or abandoned their child.
Recovery for Wrongful Death/Worker’s Comp
Follows intestate succession, as do death benefits under Worker’s Comp.
Pain and suffering damages go into estate, so pass by either will or intestacy.
Aliens and Succession
Aliens in US may inherit like citizen heirs. If alien heir is outside US, NC applies law of heir’s country.
Missing Heirs
At date of distribution, shares of missing heirs held in trust by clerk for a year, then transferred to state treasurer. Clerk not required to provide or publish notice.