When should intestacy rules be applied?
- No will
- Will fails (denied probate)
- Will does not dispose of all probate property
- Will specifies intestate distribution
What is a surviving spouse’s share?
- In all states, if no descendants survive, spouse takes entire intestate estate
- In most states, if descendants survive, surviving spouse takes one-half or one-third of estate
- Some states and UPC provide for dollar amount plus one-half or one-third if descendants survive
- Under UPC, the surviving spouse takes entire estate if all surviving descendants are surviving spouse’s descendants
What share of an estate to descendants take?
Descendants take share of estate which doesn’t pass to surviving spouse.
- Majority split per capita with representation, with division at first living heir level
- Modern trend is per capita at each generation
- Minority follow strict per stirpes, with division always at child level
To whom does intestate estate pass if no descendants survive?
- To parents
- If no parents, descendants of parents
- If no descendants of parents, to grandparents or their descendants
- If no grandparents or their descendants, divided into maternal and paternal shares and pass to nearest kin (watch for laughing heir statute)
- If no relative capable of taking, to the state (escheat)
When can nonmarital children inherit from father?
- Father and mother married after birth;
- Man adjudicated father in paternity suit; or
- After man’s death, he is proven to be father of the child
What are the inheritance rights of posthumous, adopted, foster, and stepchildren?
- Posthumous children in gestation at decedent’s death inherit as though born in decedent’s lifetime
- Adopted children are treated as natural child of adopting family; usually inheritance to biological family cut off
- Stepchildren and foster children have no inheritance rights unless adopted, but there can be an exception for adoption by estoppel
What is the impact of disinheritance clauses?
- In majority, it is ineffective as to any portions passing through intestacy
- In minority and UPC, given full effect and portions passing through intestacy will skip over them as though they had disclaimed it
What happens in cases of simultaneous death?
- Under Uniform Simultaneous Death Act (“USDA”), property of each passes as though they’d survived other
- About half of states have a 120-hour rule, requiring that one survives that long to take as heir, beneficiary, etc.
- The governing instrument is permitted to make a different provision
What is the impact of a disclaimer?
- Disclaimed property passes as though disclaimant predeceased decedent
- Disclaimer must describe property, be in signed writing, and filed within 9 months
- Estoppel of disclaimer if benefits accepted
What happens when a decedent’s death is caused by an heir or beneficiary?
- If felonious and intentional, property passes as though killer predeceased decedent
- Applies to probate and nonprobate transfers
- Severs joint tenancy
When is a lifetime gift an advancement of intestate share?
A lifetime gift is presumptively not an advancement unless. . .
- Intent is shown by a contemporaneous writing or will provision by donor; or
- There is a written acknowledgment by the donee
What are the requirements for a valid will?
- Testator at least 18 and of sound mind
- Present intent to make a will
- Writing
- Signature of testator
For formal attested wills, all of the above, plus. . .
- Two attesting witnesses, who testator signs/acknowledges signature to, and who sign in front of testator
- When witness is also a beneficiary, it is still valid but gift is erases unless. . .
- Witness supernumerary
- Witness would take without will
- UPC provision allows interested to keep gift
For holographic wills, all initial requirements, plus. . .
- Will in testators handwriting
- Witnesses not needed
How may a will be revoked?
- Via physical act with intent to revoke the prior will (this can include a new will)
- Divorce revokes gift in favor of a spouse (this must be a completed divorce); in some states, also stepchildren or others related to spouse
What is the dependent relative revocation doctrine?
Under this doctrine, if a testator revokes a prior will due to a mistaken assumption, the revocation will be ineffective if it appears that the testator would not have revoked had they had accurate information.
Will a gift fail when the beneficiary is not alive?
Previously, yes. However, all states now have anti-lapse statutes, which allow for a the gift to be saved and go to the beneficiary’s issue if the beneficiary is related by a certain degree of blood to the testator and had issue that survived.
When does ademption occur?
Ademption occurs when specifically devised property no longer exists. Under many statutes, if the testator replaced the property or if there existed insurance proceeds unpaid at death, the beneficiary could receive that despite the original gift failing.
When does abatement occur?
When assets are insufficient to satisfy all gifts made by a will, then the gifts will be abated (reduced) in this order: (1) intestate property, (2) residuary gifts, (3) general gifts, and (4) specific gifts.
What mental capacity is require to execute a will?
Testator must know. . .
- Nature and extent of property
- People who are natural objects of the bounty (like family members)
- The nature of the instrument
- The disposition being made under the will
When is a handwritten will not holographic?
A handwritten will is not holographic when if it is attested (witnessed and signed).
