Intestate Descent & Distribution

Question 1

When do intestate succession rules apply?

Answer 1

1. When the decedent left no will;
2. When the decedent’s will was denied probate; or
3. When a decedent left a will, but did not make a complete disposition of the estate (partial intestacy).

Question 2

If a spouse _____________ the other spouse, and it continues until the abandoned spouse’s death, the deserting spouse is barred from all statutory rights in the estate.

Answer 2

willfully deserts or abandons

Question 3

If a decedent is survived by descendants, at least one of whom was not the surviving spouse’s descendant, the spouse inherits ______ of the estate, and the other ______ passes to the decedent’s descendants.

Answer 3

1/3; 2/3

Question 4

If a decedent is not survived by a spouse, who is first in line to receive distribution of the estate?

Answer 4

Descendants.

Question 5

Who is a descendant under Virginia law?

Answer 5

People related to the decedent in a direct line, such as children or grandchildren.

Question 6

If the decedent is not survived by a spouse or descendants, the estate passes to…

Answer 6

The decedent’s parents or surviving parent.

Question 7

A parent may be disqualified from inheriting from their child if…

Answer 7

that parent willfully deserted their minor or incapacitated child, and that desertion continued until the child’s death.

Question 8

If no spouse, descendants, or parents survive the decedent, the estate passes to…

Answer 8

the decedent’s brothers or sisters (and the issue of deceased siblings, who take by representation).

Question 9

If no spouse, descendants, parents, or siblings survive the decedent, the estate passes to…

Answer 9

The decedent’s grandparents. 1/2 will go to their maternal grandparents, and 1/2 will go to their paternal grandparents.

[or their descendants who may take by representation].

Question 10

If the decedent was not survived by any living heirs, the estate passes to…

Answer 10

heirs of the decedent’s deceased spouse, as though the deceased spouse had survived and passed intestate.

Question 11

Does Virginia have a laughing heir statute?

Answer 11

No, a person may qualify as an heir, no matter how remotely related they are to the decedent.

Question 12

When will an estate escheat to the Commonwealth?

Answer 12

ONLY if there are no heirs of the decedent or their spouse.

Question 13

Decedent dies intestate survived by his stepson from his predeceased wife and his nephew. Who takes?

Answer 13

100% to nephew.

Question 14

Decedent dies intestate survived by his great uncle and his nephew. Who takes?

Answer 14

100% to nephew.

Question 15

Decedent dies intestate survived by only his brother and his nephew. Who takes?

Answer 15

100% to brother.

Question 16

To disinherit someone, the testator must make a….

Answer 16

complete disposition of their estate by will.

[only way to avoid intestacy laws]

Question 17

In Virginia, descendants take per….

Answer 17

capita with representation.

Question 18

In per capita with representation distribution, the decedent’s property is divided into equal shares at the….

Answer 18

first generational level with living takers.

Question 19

The shares of predeceasing descendants pass to…

Answer 19

their issue, by right of representation.

Question 20

Adopted children and their descendants inherit from and through…

Answer 20

their adopting parents as though they were a natural child.

Question 21

Adoption cuts off inheritance rights from natural parents, and vice versa, EXCEPT when:

Answer 21

Adoption is by the spouse of a biological parent.

Question 22

Does a stepchild or foster child who is not legally adopted have inheritance rights from her stepparent or foster parent?

Answer 22

No

Question 23

What is the first way a nonmarital child may get full inheritance rights from their natural father?

Answer 23

The father marries the mother before or after the child’s birth.

(even if the attempted marriage is void or voidable)

Question 24

If a nonmarital child’s natural parents never get married, how can the court establish parental rights of the natural father?

Answer 24

By clear and convincing evidence that:

1. Birth certificate notation of father;
2. Admittance to paternity in court or a writing under oath;
3. DNA test, or other medical evidence;
4. Cohabitation, openly with the mother during her entire pregnancy;
5. Allowance (child support), which was ordered to be paid by the father following a paternity suit.
6. Tax returns (or other government documents), showing that the father claimed the child.
7. Surname, when the child uses their natural father’s.

Question 25

If parentage was established in a paternity suit or if the father attempted to marry the mother, the father and his kin…

Answer 25

have inheritance rights from and through the child.

Question 26

If parentage was established by proof of one of the “clear and convincing” (BADCATS) grounds, the father and his kin…

Answer 26

may inherit only if the father openly treated the child as his and did not refuse to support the child.

Question 27

For inheritance purposes, a child conceived by artificial insemination or IVF, is the child of a person who…

Answer 27

consented to be a parent, in writing, prior to conception, provided that the child is born within that person’s lifetime OR within 10 months of that person’s death.

[think – if one’s boyfriend died, they could get pregnant the month after and he could be considered the parent]

Question 28

What if a child was conceived, but then the father passed away prior to the child being born?

Answer 28

The child born thereafter takes as if born during the decedent’s lifetime.

[note that this applies to other relatives as well, for purposes of issues].

Question 29

Half-blood siblings take…

Answer 29

1/2 as much as whole blood siblings.

Question 30

In Virginia, an inter vivos gift made to a child or other descendant is presumptively an…

Answer 30

Advancement.

Question 31

The presumption of advancement may be rebutted by…

Answer 31

affirmative proof that the gift was not intended to be an advancement.

Question 32

If it has been determined that an advancement was made, the recipient’s remaining share will be computed by…

Answer 32

1. Adding the amount of the advancement back into the estate;
2. Calculating the share of each heir;
3. Deducting the amount of the advancement from the share of the recipient.

Question 33

If there is a deficit in the estate after computation of the advancement, how will this be rectified?

Answer 33

The other heirs will divide the deficit pro rata.