Intestacy

Question 1

what is the sequence of distribution for intestacy? 7 layers

Answer 1

(1) creditors
(2) spouse
- 100% if no surviving issue
- 1/3 or child’s share whichever is greater
(3) children (natural born or adopted)
- children take equally if they are all of the same degree of kinship, otherwise they take by representation

(4) parents
(5) siblings and their issue
(6) grandparents
(7) escheat

Question 2

modern per stirpes

Answer 2

o modern per stirpes rule: you divide the descended ppty at the first level where you have a living heir and trickle down (see TCA 31-2-106)

 so even if you have a predeceased child at that level, the ppty is still divided at that level and the PC’s share trickles down to his issue

 **note: if there is a predeceased heir at the first level and that PH has no children, do not include that line in the split

Question 3

120 hr rule

Answer 3

o 120-hour rule: an individual who fails to survive D by 120 hours is deemed to have predeceased D for purposes of intestate succession (i.e. ppty will skip this party in distribution)

 **must be proven by clear and convincing evidence

 this section is not to be applied if its application would result in the ppty excheating to the state

Question 4

TN rule on adopted children

Answer 4

o rule: adopted children inherent from and through their adopted parents and vice versa
 adopted children do not inherit from and through their natural/genetic parents and vice versa
 **the TN exception: if a parent dies before the parent-child relationship is termed, and before the adoption, the parent-child relationship still holds (i.e. if your parents die and THEN you are adopted, you can inherit from NM, NF, and AM, AF)

Question 5

equitable (virtual) adoption and elements

Answer 5

o equitable (virtual) adoption: only the child can inherit from the foster parent (so not through [up to the grandparents], and not vice versa) – very narrow
 Elements:
• express/implied agreement to adopt,
• reliance on that agreement,
• performance by NP (natural parents) in giving up custody,
• performance by the child in living in the home of the foster parents and acting as their child,
• partial performance by the foster parents in taking the child into their home and treating the child as their own, AND
• the intestacy of the foster parents
 **note: in TN, you must comply with an adoption statute or at least attempt to contract to adopt, otherwise a virtual adoption is not legitimate (Topping)

Question 6

rule of presumptive parentage

Answer 6

o presumptive parentage: a man is rebuttably presumed to be the father of the child if man and mother are married or have been married to each other and the child is born during the marriage or within 300 days after the marriage is termed by death, annulment, declaration of invalidity, or divorce

Question 7

doctrine of advancement and the TN rule

Answer 7

o ONLY APPLIES TO CHILDREN

doctrine of advancement: when a lifetime gift by D to child is considered a prepayment of the child’s intestate or testate share
 if the gift is treated as an advancement, it is accounted for in distributing D’s estate by bringing it into hotchpot: add advancement amount into total estate, divide between the heirs, and subtract the amount from that child’s share that received the advancement
 if recipient predeceases D, ppty is not taken into account in distribution unless D’s contemporaneous writing provides otherwise

 TN/Majority rule: if you do not have evidence that the gift was meant to be an advancement, it was not an advancement
• i.e. presumed to be a gift, so advancements are rare
• (whereas the Common Law presumed it was an advancement)

Question 8

slayer rule and how it affects representation

Answer 8

o homicide rule: if A feloniously and intentionally kills D, A forfeits his share of D’s estate and is treated as having predeceased D
 so involuntary manslaughter and negligent homicide, being unintentional, do not prevent inheritance
 self-defense killing, while intentional, is not felonious, so this does not prevent inheritance
 SOP: needs a criminal conviction OR can show felonious and intentional in the probate court using the preponderance of the evidence standard
 **descendants of a slayer can still take, even if killer is alive and convicted (b/c killer would be treated as predeceasing D)

ALSO SEVERS ANY SHARED PPTY INTEREST

Question 9

disclaimer/renunciation rule

Answer 9

 this is generally allowed for intestate and testate shares

 invalid renunciation
• you cannot disclaim to impoverish yourself and collect Medicaid (this is fraud)
• you cannot disclaim to avoid paying IRS tax lien (this is fraud)
 **if someone disclaims, we treat the ppty as passing by strict per stirpes (i.e split at the first level to avoid cheating the system)

Question 10

rule for negative disinheritance

Answer 10

o negative disinheritance: D may disinherit an heir only by giving his estate to others (i.e. you need an affirmative disposition, you can’t just have nobody take that ppty)
 if you fail to follow this procedure, that person still inherits

Question 11

rule for children born out of wedlock

Answer 11

o child born out of wedlock:
 automatically presumed to be the mother’s
 also a child of the father if (1) the parents got married before or after the birth of the child (even though the marriage is void), OR (2) paternity is established by adjudication before the death of the father or is established thereafter by clear and convincing proof, but only if an assertion of paternity is made that seeks the adjudication within the earlier of:
• the period described in 30-2-306, OR
• one year after the father’s death
• (paternity under this section is ineffective to qualify the father/father’s kindred to inherit from or through the child unless the child has openly treated the child as his own and offered to support the child)
• (also cannot collect until child support is paid off)