Intestacy Flashcards
Will Substitutes
JT, POD designations on life insurance, pension plane, bank/brokerage/mutual fund accounts, revocable trusts
Intestacy Statute (primary objective)
carry out the probable intent of the typical intestate decedent
Does an adopted person have the right to inherit from the estate of a natural parent who dies intestate or the right to inherit through that natural parent by way of representation?
No. It is up to the state to decide and regulate how property may pass by will or inheritance and limit who is eligible to receive that property. Md. Estates and Trust Code Ann. § 1-207(a) governs the rights of inheritance of adopted persons. Under that statute, upon adoption, an adopted child is no longer considered to be the child of the natural parents, except that if a child is adopted by the spouse of a natural parent, the child is considered the child of “that natural parent” and the adoptive parent. Accordingly, an adoptee may not directly inherit from a natural parent who dies intestate.
Is an adult adopted for the purpose of making that person an heir under a pre-existing testamentary instrument entitled to inherit as though a natural heir?
No. Where there is a pre-existing testamentary instrument and an adult is adopted merely for the purpose of making that person an heir capable of inheriting under that instrument, the adoption statutes will not be strictly construed if the result conflicts with the testator’s intent.
Under Georgia law, may the court recognize a contract for adoption entered into by a non-parent relative who has physical custody but is not a legally appointed guardian of the child?
No. Only a parent or guardian has the authority to contract for adoption of a child. In order for a contract for adoption to be valid, a preliminary requirement is that the party contracting for adoption have authority to do so.
Equitable Adoption
an oral contract to adopt a child not executed in accordance w/ statutory requirements, giving rise to rights of inheritance in the child, upon the death of the promisor
May posthumously conceived children inherit under Massachusetts intestacy laws from their deceased parent where their genetic relationship with the deceased parent is established and the deceased parent consented to the posthumous conception and support of the children?
Yes. Children conceived through artificial insemination with the gametes of a deceased parent, may inherit under Massachusetts intestacy laws under certain circumstances. First, the genetic relationship with the parent must be clearly established. Second, the deceased parent must have consented to both the posthumous conception and the posthumous support of the children. Merely banking one’s gametes for later use by one’s spouse is insufficient evidence of that person’s consent to posthumous conception and support of posthumously conceived children, since there are other reasons for banking gametes during one’s lifetime.
…state’s interests must be considered in determining intent of legislators
Where the statutes of descent would otherwise require distribution of a decedent’s assets to the party responsible for the wrongful killing of the decedent, may the court order distribution of the assets to the next of kin?
No. The court must distribute the estate as provided in the statutes governing descent, but a person responsible for the death of a decedent who stands to inherit under the statutes of descent shall be deemed by the court sitting in equity to be a constructive trustee of the estate assets for the next of kin.
There are three approaches that courts take when a person responsible for the death of a decedent stands to inherit from that decedent under the laws of descent.
First, acknowledging that only the statutes of descent govern the distribution of intestate estates, the killer inherits despite the killing.
Second, employing the equitable principle that a person should not profit from their own wrongdoing, the estate does not pass to the killer.
Third, acknowledging the mandate of the statutes of descent, the estate passes to the killer, but equity prevents the killer from benefitting from their own wrongdoing by placing a constructive trust on the estate assets to be held for the benefit of the decedent’s next of kin —further modified to distinguish between murder and involuntary manslaughter
advancement (common law)
any lifetime gift by decedent to children—effective prepayment of child’s intestate share
admin must account for value of any property that decedent gave each child while living
To avoid application of doctrine child had burden of showing decedent did not intend for gift to be counted against the child’s share of the estate
advancement (UPC § 2-109)
(when decedent intestate) property given to heir during lifetime treated as advancement if :
(i) the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement or
(ii) the decedent’s contemporaneous writing or the heir’s written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent’s intestate estate.
hotchpot
Essentially process/formula by which advancements are counted against children’s share of intestate estate
Advancement amount added to remaining estate at time of death
total is ÷ by amount of children
advancement amount is then subtracted from child’s even share
If an heir disclaims his or her inheritance, is that heir’s inheritance subject to tax liens on that heir’s property or rights to property?
Yes. A disclaiming heir exercises control over the inheritance by deciding whether to receive the inheritance or disclaim and allow it to pass to the next person in line under the intestacy law. Choosing to disclaim one’s interest in an inheritance does not change the disclaiming heir’s right to receive his inheritance to the extent that the disclaiming heir chooses the ultimate owner of the property. Thus, the disclaimed inheritance constitutes “property” or “rights to property” under the Internal Revenue Code that are subject to federal tax liens.
