Introduction to Wills and Intestacy Flashcards
(12 cards)
What are the 3 types of ways a person’s estate may pass?
- Testate—a person dies with a valid will
- Intestate—a person dies without a valid will
- Partial intestacy—no residuary clause and the will does not make a complete disposition, or the residuary clause is ineffective
What is included in a Decedent’s personal estate?
Testacy/intestacy rules only govern property in the decedent’s personal estate; they exclude property that passes automatically by operation of law upon death, or according to an instrument other than a will
What are the requirements for an heir to be considered as surviving the decedent?
- Heir must survive decedent by 120 hours; established by clear and convincing evidence
- Requirement does not apply if the governing instrument clearly provides for a different result, or would result in an escheat to the Commonwealth
- Jointly owned property with right of survivorship—property is divided among co-tenants who die within the 120-hour period
Children - Adoption
The adopted person becomes a child of the adopting parent; no longer a child of the biological parents (unless the adopting parent is the spouse of a biological parent)
Adult adoption is recognized for purposes of inheritance
Children - Assisted Conception
A child conceived via assisted conception is the child of the person who consented in writing before conception to be a parent; the child must be born within that person’s lifetime or within 10 months of that person’s death
Child born out of wedlock
Always a child of the biological mother; and
Also a child of the biological father if:
- Biological parents participated in a marriage ceremony before or after the birth of the child (even if invalid); or
- Paternity is established by clear and convincing evidence (note: the father cannot inherit from the child unless the father has openly treated the child as his, and has not refused to support the child)
Child born out of wedlock seeking to inherit must seek an adjudication of parentage within one year of the parent’s death, unless parentage is established by
- Birth record
- Deceased’s admission of parenthood before any court or in writing under oath, or
- Previously concluded parentage proceeding
Termination of parental rights
An order terminates the rights of the parent to take from
or through the child; it does not affect the rights of the child to take from or through the
parent
Multiple lines of inheritance
Heirs related to the decedent through two relationships
are entitled only to the larger share
Afterborn heirs
Heirs conceived before death but born after inherit as if they had been
born during the decedent’s lifetime
How are appropriate shares of the decedent’s personal estate calculated?
Will designates per stirpes—issue take deceased ancestor’s share in equal portions; estate first divided into # of ancestor’s children who survive or leave surviving issue
Intestate or will silent—per capita with representation among descendants
Slayer statute
Bars inheritance by the slayer of the decedent in two scenarios:
1. Slayer is convicted of the murder or voluntary manslaughter of the decedent; or
2. Party seeking to bar slayer’s inheritance shows by a preponderance of the evidence that the slayer committed the murder or voluntary manslaughter of decedent, even if acquitted by reason of insanity
* Slayer is treated as having predeceased the victim (children of the slayer are not barred)
* Applies to intestacy, wills, and nonprobate transfers
Disclaimer - How to refuse an interest in property
- Even if the creator of an interest imposed a spendthrift restriction over the interest, a disclaimant may refuse to accept it by effective disclaimer; the disclaimer must:
* Be in writing;
* Declare the act of disclaiming and describe the interest being disclaimed; and
* Be signed by the disclaimant and delivered to the executor/administrator or the circuit court. - Can be used to defeat creditors’ claims, but not a federal tax lien
