Wills - Subsidiary Problems Common to Intestacy & Wills

Question 1

Advancement

Answer 1

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.

Common Law - substantial lifetime gift to child presumed to be advancement

Question 2

UPC & some states only find a lifetime gift to be an advancement only if:

Answer 2

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 3

Hotchpot

Answer 3

Procedure if advancement is found. Gift’s value is added back into the estate to calculate shares and then subtracted from recipient’s share.

⚠️ heir need not return the amount of an advancement in excess of the value of their intestate share

Example: $10k advance + $20k estate = $30k. A & B each owed $15k. B takes full $15k. $10k subtracted from A, and A is left with $5k.

Question 4

Simultaneous Death

Uniform Simultaneous Death Act (USDA)

Answer 4

Property of each decedent is disposed of as if they had survived each other.

Applies only if “there is no sufficient evidence” of survivorship → the beneficiary is deemed to have predeceased the donor.

⚠️ if there is evidence than heir or beneficiary survived the decedent by even minutes, USDA does not apply. Instead, the property passes from the first decedent to the second, and then through the second decedent’s estate to their heirs or devisees.

Question 5

Simultaneous Death

UPC

Answer 5

Claimant must establish survivorship by 120 hours (5 days) by clear & convincing evidence.

Question 6

Requirements for Disclaimer

Answer 6

Must be written, signed by the disclaimant, acknowledged before a notary, and filed with the appropriate court within nine months of death.

Modern view - disclaim at any time as long as you have not used the gift