Decedents' Estates February 2006 Flashcards
(4 cards)
Summary
The transfer to Grandchild 6 is presumptively a gift, not an advancement. Grandchild 1 is not barred from sharing in the estate because Grandchild 1 did not feloniously take Dorothy’s life. Thus, Dorothy’s estate is distributable to her surviving grandchildren. The shares they take will depend on whether they take per stirpes or per capita under the applicable intestacy statute.
There are potentially two reasons the gift to Grandchild 6 is not an advancement. First, the advancement doctrine is inapplicable when the decedent dies with a will. Second, under a typical advancement statute, lifetime gifts are not an advancement absent evidence that the transferor intended them as such.
The doctrine of advancements usually applies only to intestate succession. See William H. McGovern & Sheldon F. Kurtz, WILLS,TRUSTSAND ESTATES § 2.6 at 66 (2001). In states that follow this rule, the $60,000 gift to Grandchild 6 would be ignored when computing the “heirs” share of Dorothy’s estate. However, there is some authority for the proposition that the doctrine of advancements would apply if, as here, a will leaves property to the testator’s heirs. Id. Furthermore, here Dorothy has expressly directed an intestate-style distribution. Whether the $60,000 would be taken into account in determining Grandchild 6’s share of Dorothy’s estate would depend on the applicable advancement statute.
Under the common law, a lifetime transfer to an heir was presumptively treated as a down payment on the heir’s intestate share. In most, if not all, states today, a lifetime transfer is presumed to be a gift and is ignored in computing the heir’s intestate share unless there is evidence to show a contrary intent. See generally UNIF. PROBATE CODE§ 2-109.Here, there is no evidence that Dorothy intended the $60,000 to be an advancement.
Grandchild 1 should not be barred from sharing in Dorothy’s estate under the typical slayer statute because Grandchild 1 did not act with felonious intent.
Under the typical slayer statute, an heir or beneficiary is barred from taking from the decedent if the heir or beneficiary feloniously and intentionally killed the decedent. See, e.g., UNIF. PROBATE CODE § 2-803(b). The typical slayer statute excludes accidental killings even if they amount to manslaughter. Here, Grandchild 1 acted both inadvertently and negligently and thus is not barred by the slayer statute.
[NOTE: If an applicant concluded that Grandchild 1 would be barred by the slayer statute, Grandchild 1’s forfeited share of Dorothy’s estate would be disposed of as if Grandchild 1 predeceased Dorothy. Here, that would mean that Grandchild 1’s share would pass to Great-Grandchild, Grandchild 1’s child.]
Assuming both Grandchild 1 and Grandchild 6 share in Dorothy’s estate, all six grandchildren take equal shares if the estate is distributed to them per capita. If the estate is distributed per stirpes, the same six grandchildren receive the entire estate but in different amounts. Under either system, Great-Grandchild takes nothing.
Dorothy’s will incorporates by reference the state intestacy scheme. Thus, the distribution of the estate is determined as if Dorothy died intestate. State laws differ regarding the distribution among issue where the decedent died intestate. Many states make the initial division of shares by computing the number of the decedent’s children who had either survived the decedent or who left issue who survived. In such states, the initial division would be into thirds (per stirpes system). In many other states, including Uniform Probate Code states, the initial division is made by counting the number of heirs at the generational level at which there is at least one living member (per capita per generation system). Here, that would be six, since the first level at which there are surviving descendants of Dorothy is the grandchild level.
Taking the latter (Uniform Probate Code approach) first, since no advancement was made to Grandchild 6 (see Point One) that grandchild shares in the estate. In addition, Grandchild 1 is not barred by the typical “slayer statute” because he did not intentionally take Dorothy’s life. (See Point Two.) Thus, under the latter approach, all six grandchildren take equal $20,000 shares of Dorothy’s estate.
In those states that initially divide the estate into thirds, Dorothy’s estate would be divided into three $40,000 shares. Abel’s two children would be entitled to split 1/3 of the estate, taking $20,000 each. Each of Brandon’s three children would be entitled to 1/3 of a $40,000 share and Carrie’s $40,000 share would pass entirely to Grandchild 6. Great-grandchild (the child of Grandchild 1) takes nothing because Grandchild 1 is entitled to take a share of Dorothy’s estate and in all states a remote descendant is excluded from inheriting when that descendant’s ancestor survives.
[NOTE: The foregoing discussion assumes that no advancement was made to Grandchild 6 and that Grandchild 1 was not barred by a slayer statute. If an applicant made other assumptions, the applicant should be expected to have a different analysis to Point Three.]
