! Intestacy

Question 1

Intestacy - When the intestate is survived by a spouse

Answer 1

• SS will receive either 100% or 1/3 of probate assets
• 1/3 if decedent survived by any children or descendants who are NOT children or descendants of SS; remaining 2/3 will pass to decedent’s children or descendants by representation
• All other cases—SS’s share is 100% of probate estate

Question 2

Intestacy - When the intestate is survived by descendants

Answer 2

Descendants take:
- 100% if intestate left no SS

• 2/3s if intestate left SS and one or more surviving children or descendants who are not children or descendants of the surviving spouse
• Nothing in all other cases

Question 3

Intestacy - No surviving spouse or descendants

Answer 3

• Parents take
• No parent survives—decedent’s siblings and their descendants take by
  representation
• None of the above survive—the estate is divided into a share for the paternal side and
  a share for the maternal side; each share is then distributed according to the following:
  o Grandfather and grandmother or the survivor
  o If none, then to the uncles and aunts (and their descendants by representation)
  o If none, then to the great-grandparent(s), and
  o If none, then to the brothers and sisters of the grandparents (and their descendants by representation)

Question 4

Intestacy - Escheat

Answer 4

When the decedent has no surviving kin, the property escheats to the Commonwealth

Question 5

“Laughing Heir” statute

Answer 5

Allows relatives to inherit, no matter how remotely related

Question 6

Per capita with representation (“modern per stirpes”)

Answer 6

• Intestate survived by children—divide the estate into one share for each child who survived the intestate and one share for each predeceased child who left surviving descendants
• Intestate not survived by children—divide the estate as above, but at the first generation with a surviving descendant (typically at the grandchild level)

Question 7

Share of half-bloods

Answer 7

Virginia has a distinctive rule that gives half-blood kin one-half the share of a similar full-blood kin

• Cannot apply to descendants or ancestors, only collateral kin (such as siblings, nieces, nephews, aunts, uncles, and cousins)
• Does not limit the half-blood’s claim if there are no other takers of the estate
• Does not reduce the share of half-blood kin who are the only members of a class entitled to take

Question 8

Intestacy - Adopted children

Answer 8

Same inheritance rights from the adopted family as a natural child

Keep inheritance rights from natural parents and adoptive parents only if
(i) adopted by the spouse of a natural parent or
(ii) involuntary termination of parental rights

Question 9

Intestacy - Step/foster children

Answer 9

Generally have no inheritance rights from step/foster parents unless adopted

Exception—a decedent’s step-children may receive an interest in the decedent’s estate through their intestate inheritance rights from their own parent if the decedent dies intestate leaving:
(i) no descendants,
(ii) no paternal or maternal kin, and
(iii) no surviving spouse (the estate will pass to the kin of the decedent’s spouse as if the spouse died intestate owning the property)

Question 10

Intestacy - Advancements

Answer 10

Substantial gifts from the decedent to an heir during lifetime may be advancements that offset what the heir would have received in intestacy (process known as hotchpot)

Heir who receives an advancement exceeding the intestate share may elect to retain the advancement and forego the intestate share