Wills - Intestate Succession Flashcards
When do Intestate Distribution Rules Apply?
When (i) decedent left no will
(ii) the will does not make a complete disposition of the estate (“partial intestacy”)
(iii) an heir successfully contest the will, and will is denied probate.
(iv) Questions involving Omitted Spouse and Child Statutes
When does the Surviving Spouse inherit the entire estate?
(i) Decedent was not survived by descendants or a part; OR
(ii) the “one-marriage situation”: decedent was survived by descendants all of whom were descendants of the surviving spouse AND spouse had no other descendants [nuclear family]
How much does the Surviving Spouse inherit in a “divided family situation”?
$100,000 plus one-half of the balance when:
(i) one or more of the decedent’s descendants was not a descendant of the surviving spouse; OR
(ii) all the decedent’s descendants are descendants of the surviving spouse, but the spouse has one or more descendants who are not descendants of the decedent.
When does the spouse inherits $200,000 plus 3/4 of the balance:
If the decedent is not survived by descendants, but is survived by a parent.
What are the three additional statutory rights of surviving spouse?
(1) Family allowance for maintenance during period of estate administration pay to surviving spouse for benefit of spouse/dependent children: Rep can allocate up to $18,000. Higher amount can be approved by probate court.
(2) Exempt personal property of up to $10,000 in favor of surviving spouse or if no spouse, decedent’s children.
(3) Right to Occupancy residence for Six Months. –> Surviving Spouse (Rent- Free), Right of occupancy of homestead up to $500k in value.
What are the steps for determining inheritance of Children and Descendants of deceased children?
Step 1: You make the initial division of shares at the first generational level at which there are living takes. All living persons at that first generational level take a share. [Can’t devise an expectancy at this level]
Step 2: Remaining pool is combined and then divided equally among the takes at the next generational level in the same manner except for those who prior generation took. (i.e. if child takes grandchildren can’t.) [Persons in the same degree of kinship to the decedent always take equal shares (i.e. grandchildren).
Who takes if an intestate decedent is not survived by spouse or descedants?
(1) All to parents [one-half each] or surviving parent [all].
(2) If not survived by parents, to descendants of parents: (i.e. descendants brothers and sisters) who take per capita each generation.
(3) If not survived by parents or descendants of parents, to “kindred in nearest degree of kinship.[No limit in MA on the degree of kinship. Doesn’t escheat to the state unless no living kin by blood or adoption.]
How are adopted children treated?
The same as natural born children. Child is not adopted for this purpose until final decree of adoption.
Once adopted, the adopted child has no inheritance rights from the natural parents or their kin. (EXCEPT; Where child is adopted by spouse of a natural parent.
What about posthumous children?
A child conceived and in gestation at decedent’s death, but born thereafter can inherit as long as the child lives for more than 120 hours.
A child conceived by artificial insemination of a married woman can inherit from the woman’s husband if he consented to posthumous conception and consent to support any resulting child.
What is the Uniform Simultaneous Death Act and how is it applied?
Under the USDA, when titled to property depends on order of deaths, and there is no sufficient evidence as to which party survived, the property of each passes as though he or she survived.
Intestacy: As though intestate survived and heir predeceased.
Wills: Testator survived and beneficiary predeceased.
Life insurance: As though insured survived and beneficiary predeceased.
Joint tenant or Tenants in the entirety: Base to each tenants heirs as a TIC.
MA has not adopted the 120-hour rule
What is the effect of a lifetime gift to an heir or will beneficiary?
Massachusetts: Lifetime gift to an heir is not an advancement unless
(i) declared as such in contemporaneous writing (with the gift) by the donor; OR
(ii) acknowledged as such in writing by donee (doesn’t have to be w/the gift OR
(iii) will provides for reduction of legacies by any lifetime gifts [less tested]
CL: Lifetime gift to a child was presumptively an advancement of the child’s intestate share, to be taken into account in distributing the estate at share.
What about posthumous children?
A child conceived and in gestation at decedent’s death, but born thereafter can inherit as long as the child lives for more than 120 hours.
A child conceived by artificial insemination of a married woman can inherit from the woman’s husband if he consented to posthumous conception and consent to support any resulting child.
What is the Uniform Simultaneous Death Act and how is it applied?
Under the USDA, when titled to property depends on order of deaths, and there is no sufficient evidence as to which party survived, the property of each passes as though he or she survived.
Intestacy: As though intestate survived and heir predeceased.
Wills: Testator survived and beneficiary predeceased.
Life insurance: As though insured survived and beneficiary predeceased.
Joint tenant or Tenants in the entirety: Base to each tenants heirs as a TIC.
MA has not adopted the 120-hour rule
What is the effect of a lifetime gift to an heir or will beneficiary?
Massachusetts: Lifetime gift to an heir is not an advancement unless
(i) declared as such in contemporaneous writing (with the gift) by the donor; OR
(ii) acknowledged as such in writing by donee (doesn’t have to be w/the gift OR
(iii) will provides for reduction of legacies by any lifetime gifts [less tested]
CL: Lifetime gift to a child was presumptively an advancement of the child’s intestate share, to be taken into account in distributing the estate at share.
What does a beneficiary or heir have to do to disclaim an interest?
Can’t be compelled to take to be a beneficiary/heir. Once you disclaim its irrevocable. To be a valid disclaimer:
(1) Must be in writing and signed. (If real property, must be acknowledged befor a notary and attested copy recorded)
(2) Must be filed with probate court within nine months after decedent’s death.
Other Points:
*Any interest can be disclaimed. Surviving JT or tenant by the entirety can disclaim, but only to the extent that the decedent furnished the consideration for the property’s acquisition.
- Disclaimer can be partial
- Personal representative can disclaim for deceased or incapacitated beneficiary if it is in their estate’s best interest
Can’t disclaim to defeat a creditors’ claims if disclaimant is in solvent.
