Decedent Estates Outline

DecedentEstatesOutline:Fall 2008- ProfessorSolari
1. GeneralDefinitions
1. Testate : decedent died with a will 2. Intestate : decedent dies without a valid will. 1. In order to be valid, a will must follow the applicable statute according to state. 3. Devise : if you die with a will and leave real property 4. Devisee : the person who receives the real property because of the will. 5. Bequeath/Bequest : if you die with a will and leave personalproperty, it is a bequest. 6. Legatee : the person who receives the personalproperty as a result of a valid will. 7. Executor/Executrix : the person who handles the administration of a valid will. 8. Administrator/trix : the person who handles the proceeds of an estate where there was no will or an invalid will. 9. ProbateProperty : property that passes through the dead guys estate. 1. Goods, clothing, jewelry, etc. 10. NonprobateProperty : property that passes through the dead guys estate by contract law (i.e. life insurance) or property law (i.e. joint tenancy or tenancy by the entirety). 11. Consanguinity : relationship by blood. 12. Affinity : relationship by marriage 13. Descendants/Issue : those who come after you by blood (i.e. children, grandchildren). 14. Ascendents/Ancestors : those you came beforeyou by blood (i.e. parents, grandparents). 15. LinealHeirs: descendants and ascendents. 16. Collaterals : relatives who are neither ancestors nor descendants but are related to the decedent through a common ancestor (i.e. siblings, cousins, aunts, uncles) 17. Heir: any person who could take under the intestate succession act.
2.NorthCarolinaIntestateSuccessionAct: Chapter29 of N.C.G.S.

1. Conflicts of Law 1. In terms of Intestate Succession 1. Real Property:subject to the laws of the state where the property is. 2. Personalproperty:subject to the laws of the state where the decedentis domiciled. 2. NCGS29-2 (2)-(6) 1."Estate " means all the property of a decedent, (LE, Future Interests) 2. "Heir" means any person entitled to take real or personal property upon intestacy under the provisions of this Chapter. 3. "Linealdescendants"of a person means all children of such person and successive generations of children of such children. 4. "Net estate " means the estate of a decedent, exclusive of family allowances, costs of administration, and all lawful claims against the estate. 5."Share ," when used to describe the share of a net estate or property which any person is entitled to take, includes both the fractional share of the personal property and the undivided fractional interest in the real property, which the person is entitled to take.
3. IntestateSuccessionAnalysis:REMEMBERTHEREIS NO WILL 1. Remember: 1.spousethen 2.issuethen 3.parent 1. Look for a survivingspouse(SS): THESS ALWAYSTAKES FIRST 2. Look to see if D was survived by any descendants (kids & grandkids) 3. Look to see if D was survived by parent 4. Look to see if there are descendants of Ds parents (i.e. Brothers & Sisters). 5. Look to grandparents, their descendants, and more remote relatives. 1. After parents go to other ascendents and collateral 4. D -- (W) -> (A) & B. (A) -> X. B -> Q & Z. 1. X, Q & Z cannottake before B takes.
3. Shareof the SurvivingSpouse

3. Comparison B/T Uniform Probate Code (UPC) 2-102 and N.C.G.S. 29-14 4. Remember:UPCmakesno distinctionb/t Personaland Real property.N.C.G.SDOES!! 5.UNDER THE UPC 2-102 SS SHARE ENTIRE SHARE (No parents,all kids are ours ) FACTS 1. D has no surviving issue or parent OR 2. All of Ds surviving lineal descendants are ALSO lineal descendants of SS AND SS has no other issue D has no surviving issue BUT D has one/more surviving parents All of Ds surviving issue are ALSO lineal descendants of SS AND SS has surviving issue who are not issue of the D D has surviving issue who are NOT issue of SS
FIRST 200K + 3/4 OF BALANCE (No kids, but thereis a parent ) FIRST 150K + 1/2 OF BALANCE (All of Ds kids are SSs kids, and SS has somekidsthat arent Ds) FIRST 100K + 1/2 OF BALANCE (The kidsarent SSs)
4.UNDERTHEN.C.G.S2-14: 1. REMEMBER: NC distinguishes Real and Personal Property during the calculation of the spouses share 2. DIVIDE THE REAL PROPERTY AND THEN DISTRIBUTE THE PERSONAL PROPERTY.
PERSONALPROPERTY FIRST 30K + 1/2 OF PP BALANCE (1 Kid ) FIRST 30K + 1/3 OF PP BALANCE (2 Kids)
REALPROPERTY 1/2 undivided interest as TC
FACTS D is survived by only one child or by any grandkids of only one deceased child. D is survived by 2 or more kids [or] by one and any grandkids of one or more deceased kids [or] by grandkids of 2 or more dead kids. D has no surviving kids or grandkids, but one or both parents survive D. No surviving descendants or parents
1/3 undivided interest as TC
First 50K + 1/2 of PP balance (1 Parent,No Kids) ALL (No Kids& No Parents)
1/2 undivided interest as TC
ALL
5. AdditionalN.C.G.S 1. 29-8: Partial Intestacy 1. If part of the estate has been dealt with through a valid will, the rest will be taken care of through the law of Intestate Succession.
4. SimultaneousDeath:Whathappensif D and heir die at the sametime?

1. When a person dies simultaneously with his heir or devisee, does the heir or devisee succeed to the person's property? 1. The MainIssue:If 2 peopledie in the samedisaster,thereis little reasonto have their respectiveestatespassto the othersestatesbecausethe deadhaveno use for property. 2. Uniform Simultaneous Death Act (USDA): if there is insufficient evidence of the order of deaths, the beneficiary (heir) is deemed to have predeceased the donor, so neither inherits from the other.
3. Definitions 1. 28A-24-1 1. Co-Owners with Right of Survivorship 1. Joint Tenants, Tenants by the Entirety & Co-Owners of Property. 2. Governing Instrument 1. Deed, Will, Trust, Insurance or Annuity Policy 3. Payor 1. any otherpersonauthorizedto makepaymentsincluding trustee, insurer, business entity, employer, government
2. Uniform Simultaneous Death Act (NCGS 28A-24-2). Disposition of property where no sufficient evidence of survivorship 1. When property rights must be determined by who died first and there is not enough evidence to support any other finding other than simultaneously, the property is to be disposed of as if each had survived unless otherwise. 2. If property is so disposed of that it is to be distributed among members of the class as survive another person and there is no sufficient evidence that one or more members of the class and such other person died other than simultaneously, each member of the class so dying will be deemed to have survived the other person. 1. The class is not to be determined until the time of death, the class is open 3. If property is so disposed of that its disposition depends upon the time of death of two or more beneficiaries designated to take alternatively, by reason of survivorship, and there is no sufficient evidence that such beneficiaries have died otherwise than simultaneously, the property thus disposed of shall be divided into as many equal portions as there are alternative beneficiaries who would have taken the whole property if they had survived and such portions shall be distributed respectively to each such beneficiary.
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1. Alternate contingent remainders 4. In order to inherit a person must survive the decedent. 3. 28A24-2: Requirementof Survivalby 120 Hours(5 FULLDays) 1. If it is not established by clear & convincing evidence that heir to an estate survived at least 120 hours or 5 days after the decedent, then he will be deemed to have predeceased the decedent for purposes of disposing the estate. 2. If a governing instrument disposes of property in such a way that 2 or more people are suppose to take alternatively by reason of surviving each other (i.e. A takes if B dies but B takes if A dies) and it is not established by clear and convincing evidence that any beneficiary has survived any other by at least 120 hours, the estate will be divided into as many equal shares as there are alternative beneficiaries, and these shares will be distributed. 4. Exceptions to the 120 Hour Requirement 1. Survival by 120 hours is not required if: 1. If the governing instrument speaks directly to simultaneous death in a common disaster, and the language covers the facts in the case. 2. the governing instrument specifically states that he does not need to survive another person by any specified period, but survival must be established by clear & convincing evidence. 3. If the 120 hour requirement would cause a non-vested property interest or a power of appointment to fail to qualify for validity, but survival must be established. 4. If the requirement results in an escheat. 5. Underthe 120 HourRule 1. If A has a son, B andtheydie at the sametime. In orderfor B and his heirs to take, it wouldhaveto be provenby clearandconvincing evidencethat B outlivedA by 120 hours(5 days)otherwiseB will be declaredto havepredeceasedA and As estatewill go throughthe intestatesuccessionact.
5. Shareof Descendants;NegativeDisinheritanceDistributionto Decedents:The shareof thosewhocameafter you, if thereare any. First Line Collaterals
1. Strict Per StirpesDistribution 1. Divide the property into as many shares as there are living children of the designated person and deceased children who have descendants living. The children of each descendant represent their deceased parent and are moved into their parents position beginning at the first generation below the designated person. 1. A stirpes is allocated for each living descendant or deceased descendant which has living issue. 2. The split occurs at the first level and representation is divided downward. 1. Example 1. D dies a widow with 2 children 1. Each of the 2 children have 2 children (D had 4 grandchildren) 1. Under Strict per stirpes, you start at the 2 kids who would get a 1/2 interest each and then divide their interest for their respective kids. 2. In the end, each of Ds grandchildren would get a 1/4 interest in the estate. 2. ModernPer StirpesDistribution/WithPer CapitaRepresentation 1. One looks first to see whether any children survived the decedent. If so, the distribution is identical to that under English per stirpes. However, where no children survive the decedent, then the estate is divided equally (per capita) at the first generational level in which there are living takers. 1. The decedentsestateis dividedinto sharesat the generationallevel nearestto the decedentin whichoneor moredescendantsof the decedentare alive and providesfor representationof any deceased descendanton that level by his or her descendants. 1. DO NOTCOUNTDESCENDANTSWHODONTHAVESURVIVE WHOALSODONTHAVESURVIVINGISSUE.
3. Per Capitaat EachGenerationalLevel (NC& UPC) 1. The first division is made at the first generational level where there is a surviving issue, but the shares of deceased persons on that level are treated as one pot and are dropped down and divided equally among the representatives on the next generational level. 1. Go to the first generation with living descendants and divide equally for each person including deceased descendants with surviving issue. 1. REMEMBER:The remainingportionthat goesto survivingissue goesinto a pot andis distributedevenly
4. NegativeDisinheritance
1. NC says any part of estate not validly disposed of passes by Intestate Succession. When a testator says in a will they do not want X to inherit anything from him. 2. No state allows disinheritance of a spouse 3. If you want someone to not inherit you have to make a will and make sure you have disposed of everything properly or some of it could go through ISA. 4. UPC 1. Allows for a negative will and says you may expressly exclude; the person is considered disclaimed and X is treated as having predeceased. 1. Can still go to Xs issue however since the issue may not have been disinherited.
6. Sharesof Ancestorsand Collaterals:The sharefor thosewhocame beforeyou if thereare any. ONLYif thereare no kids, grandkids,etc. 1. ThisSituationcomesinto play whenD leavesno descendants(no spouse or children)thenhis estategoesthroughparent, grandparents,nephew, nieces,etc.
2. When the intestate decedent is survived by a descendant, the decedents ancestors and collaterals do not take. When there is no descendant, after deducting the spouses share, the intestate property is usually distributed to Ds parents, under the UPC. 1. If there is no spouse or parent, Ds heirs will be more remote ancestors (aka Collateral Kindred). 1. Collateral Kindred: All persons who are related by blood to D but who are not descendants or ancestors. 1. i.e.: Aunts, Uncles, Cousins 2. Remember: There are lines of collaterals and degrees of kinship, dont get them mixed up. 3. First Line Collaterals: Descendantsof Ds Parents , other than D and Ds Issue 1. Parents 2. Brothers/Sisters 3. Nephews/Nieces 4. Grand Nephews/Nieces 4. Second Line Collaterals: Descendantsof Ds grandparents , other than Ds parents and their issue 1. Grandparents 2. Uncles/Aunts 3. First Cousins 4. First Cousins Once Removed 5. Third Line Collaterals: Descendantsof Ds Great-grandparents , other than Ds parents and their issue 1. Great Grandparents 2. Great Uncles/Aunts 3. Second Cousins 6. Fourth Line Collaterals: Descendantsof Ds Great-Greatgrandparents , other than Ds parents and their issue
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1. Great-Great Grandparents 2. Great-Grand Uncles/Aunts 3. First Cousins Twice Removed 3. Rules to Shares of Ancestors and Collaterals 1. If ThereIS First LineCollaterals(spouse,kids, parents,nieces,etc) thenuse: 1. Englishper stirpes 2. ModernPer StirpesDistribution/WithPer CapitaRepresentation 3. Per Capitaat EachGenerationalLevel (NC& UPC) 2. IF THEREIS NO FIRSTLINECOLLATERALUSEONEOF THEFOLLOWING 1. ParentelicSystem(Useof LineCollaterals):1st line (if none), to 2nd (if none), to 3rd, and etc. 1. The intestate estate passes to grandparent and their descendants, if none, then to great-grandparents and their descendants, if none, then to great-greatgrandparents and their descendants. 1. Basically you go from First Line Collaterals to Second Line to Third Line Collaterals and so on until you find someone. 2. Degreeof Kinship- NCGS104A1: (father, brother,nephew,grandnephew,etc) 1. the intestate estate passes to the closet of kin, counting degrees of kinship. To ascertainthe degreeof kinship , count each generational step up from the decedent to the nearest common ancestor of the decedent and claimant and then count the steps down to the claimant from that common ancestor. The total number of steps is the degree of relationship. 2. The intestate estate passes to the closest kin, counting degrees of kinship. To ascertain the degree of kinship from D to the claimant, you count the stops (counting 1 for each generation) 1. 2nd LineCollateralExample 1. Start fromD, thengo to parent(1), thento grandparent(if thereis one) (2), thento uncle(3), thento cousin(4), thento secondcousin(5) until you get to someone.
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1. This changes if you are only talking about first line collateral because you would go from parent to children of parent and down the line. 3. LimitedDegreeof Kinship 1. Use Degree of Kinship, if there is a tie, use Parentelic approach 4. LimitedParentelic:NC & UPCApproach 1. Youdo not go beyond2nd degreecollateral. 1. UPC2-103 1. DISREGARD DEGREES OF KINSHIP, ONLY USE PARENTELIC BUT YOU ARE LIMITED TO 2ND DEGREE COLLATERAL 2. NCGS29-7 & 29-16 1. YOU ARE ALWAYS LIMITED TO 2ND DEGREE COLLATERAL, BUT YOU ARE ALSO LIMITED TO 5TH DEGREE OF KINSHIP. BUT 5TH DEGREE IS NOT THE LIMITATION. 1. YOU CAN GO PAST 5TH DEGREE SO LONG AS YOU DONT GO PAST 2ND DEGREE COLLATERAL.
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4. Half-Bloods 1. English system: 1. Common law courts wholly excludedrelatives of half-blood from inheriting land through intestate succession. 2. American system: 1. English rule has been abolished. 3. Majority Rule (UPC/NC): 1. Half-blood is treated same as a relative of whole-blood. No distinctionbetweenwholebloodsand half-bloods 4. Minority jurisdictions: 1. Mississippi : 1. Half-blood can only inherit if no whole-blood of the same degree can take 2. Virginia : 1. Half-blood gets half as much of the share a whole-blood would take - Whole-blood gets twice as much as halfblood (Half blood = X; Whole = 2X) 1. A is full-blooded (2), B is half-blood (1), C is half blood (1). 1. Add them up = 4 (the denominator) 2. A gets 2/4 or 1/2 3. B gets 1/4 4. C gets 1/4 3. Oklahoma 1. Half-Bloods are excluded when there are whole-blood kindred in the same degree and the inheritance came to D by an ancestor and the half-blood is not a descendant of the ancestor. 5. Ex. D died intestate survived by his brother, B, his sister, S, and his half brother, Q. How will Ds estate be distributed? 1. NC: 1/3 to each 2. UPC: 1/3 to each 3. Miss: B and S each; Q is out b/c B and S are whole bloods of the same degree 4. VA: broken downB and S (whole bloods) are going to be given 2 each; Q (half blood) is given 1; total these numbers up (2 + 2 + 1 = 5) to get you denominator; then B and S are going to get 2/5s each; and Q will be entitled to 1/5
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5. OK: 1/3 to each
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7. Transfersto Children 1. AdoptedChildren:NC favorsTotal Assimilation 1. Total assimilationtransplantthe adoptedchild into the adoptedfamilyand cut of the inheritancerightsb/w the child and her biologicalparents 1. NCGS 29-17 1. An adopted individual is the child of his adopting parents and not of his natural parents and can take only from adopted parents not from natural parents. 1. Two way street by, through, and from child and adoptive parent 2. IF a natural parent has married, is married to, or will marry an adoptive parent, the child is considered the child of that natural parent for all purposes of intestate succession. 1. Two way street by, through, and from child and natural parent wedded to adoptive parent 3. Views on Inheritance from Adoption by State 1. Maryland 1. Adopted children inherit only from adoptive parents and their relatives 2. Texas 1. Adopted children inherit from both adoptive parents and natural parents and their relatives. 3. UPC 1. Adopted children inherit from adoptive relatives and also from natural relatives if the child is adopted by a stepparent.
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2. Equitable Adoption (Virtual Adoption) 1. Arises when adopting parents die 1. When a child is not formally adopted, but should have been. It confers rights of inheritance upon the foster child in the event of intestacy of the foster parent. 1. Elements necessary to establish the existence of equitable adoption: 1. An express or implied agreementto adopt the child, 2. reliance by the parties on that agreement, 3. performanceby the naturalparents of the child in giving up custody, 4. performanceby the child in living in the home of the adoptive parents and acting as their child, 5. partial performanceby the adoptiveparentsin taking the child into their home and treating the child as their own BUT DIDNT FORMALLY ADOPT, and 6.the intestacyof the adoptiveparent. 2. In NC, equitable adoption must be proven by clear and cogent evidence, a higher standard than preponderance of the evidence standard. 2. PosthumousChildren:child bornafter the deathof intestateparent. 1. Traditional Rule 1. The child has to be in existence at the time of Ds death. 2. as long as the child is in conception when the decedent died and born alive, the child can inherit. 3. If the child is born before 10 months then he is presumed to have been in gestation and is believed to take from D. 1. NCGS 29-9 1. Descendants of D born within 10 monthsafter Ds death shall inherit as if they had been born when D was still alive and survived him.
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3. Nonmarital Children(ChildBornout of Wedlock) 1. Common Law: 1. A child born of no marriage (wedlock) was considered no one's child (filiusnullius ). That child could not inherit from anyone, his mother or father, through intestacy. 2. Modern law 1. All States- all children are recognized as children of the mother 2. Some States- Children belong to their fathers also 3. Other States- to inherit from the father, there are additional requirements 3. NCGS 29-19: Succession by, through and from illegitimate children 1. For Intestate Succession purposes, an illegitimate child is to be treated as a legitimate child of the mother so that the illegitimate child is entitled to inherit. 2. For purposesof intestatesuccession,a illegitimatechild can inherit from: 1. A personjudgedto be the fatherof the child 2. A personwhohas acknowledgedhimselfto be the father. 3. The lineal and collateral kin of any person judged or acknowledged himself to be the father of an illegitimate child shall be entitled to inherit from the child. 4. A father who has acknowledged himself to be the father of an illegitimate child in his will is to have intended to treat the child just as stated in his last will. 4. Note: North Carolina and most States legitimization occurs if the parents marry after the child's birth. 1. NCGS 29-18 Once the child is legitimated, he is treated as a legitimate child 1. Method to Legitimate in NC 1. 49-10 legitimated in a court proceeding pursuant to the fathers petition 2. By the intermarriage or subsequent marriage of the childs parents 3. NCGS 49-12 - A child born to a married woman is presumed to be the child of her husband.
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4. NCGS 49-12.1 - If the putative father of a child born to a woman who is married to another man, may file petition to legitimate the child, but the spouse of the married woman must consent to the petition. Guardian ad litem necessary to represent the child. 4. ReproductionTechnology 4. The defining question is whether there was expressed consent by the deceased that he wanted children after he was dead. 5. NC has only one statute (49A-1)) that deals with artificial insemination shall be consideredthe sameas a naturallyconceivedlegitimatechild of the husbandand wife requestingand consentingin writingto the use of such technique. 5.Adult Adoption 1. NC Only intestate heirs have the ability to sue, thus if A adopts B, As parents no longer have standing to challenge As will. 1. If A does not adopt B, but leaves everything to B, As parents do have standing to challenge the will since they are the intestate heirs. 2. NC allows adult adoption NCGS 48-5-101(adult may adopt another adult, but not his or her spouse)(requires consent by both adopting parents if they are married) 3. NCGS 102 (the consent of the adult being adopted is required) 2. Some states will not allow adult adoption under the circumstances of gay relationships.
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8.Advancements(thinkof it as a prepayment)
5. NCGS29-2 (1) Advancement- An irrevocableinter vivosgift of property,madeby an intestatedonorto any personwhowouldbe his heir or one of his heirsuponhis death, and intendedby the intestatedonorto enablethe donee(recipient)to anticipatehis inheritanceto the extentof the gift; exceptthat no gift to a spouseshall be considered and an advancementunlessso designatedby the intestatedonorin a writingsignedby the donorat the timeof the gift. 1. BrokenApart 1. Irrevocable 2. Inter VivosGift 3. of property 4. Madeby Advancor
5. To a wouldbe heir
6.To enableadvanceeto anticipatean inheritance 7. To the extentof the gift 8. GIFTSTO SPOUSESDONTCOUNT 1. Unless 1. Designatedby the advancorin a writingsignedby himat the timeof the gift.
2. NCGSStatutes
1. NCGS 29-23 1. If a person dies intestate, the property which he gave as an advancement to the advancee will be counted toward what he will take. THE ADVANCEE WILL NOT TAKE MORE THEN HIS INTESTATE SHARE. 2. 29-24: Presumptionof Gift (THEREIS A PRESUMPTIONTHATIT IS A GIFT,NOT AN ADVANCEMENT) 1. A gratuitous inter vivos transfer is presumed to be an absolute gift and not an advancementunless shown to be an advancement. 1. The burden of proof is going to be on the person who doesnt want the donee to take. 3. 29-25: Effect of Advancement 1. The amount of an advancement equals or exceeds the intestate share of the advance, the advancee is excluded from receiving anymore.
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1. If the advancee receives a greater portion because of his advancement, he will not be requiredto returnit. 2. If the advancee receives less then his intestate share with the advancement then he will get an amount to equal his intestate share. 4. 29-26: Valuation 1. WithoutA WrittenInstrument 1. The value of the property given as an advance is determined as of the time when: 1. The advancee came into possession or enjoyment (or) 2. At the time of the death of the intestate 1. Whichever comes first. 2. WithA WrittenInstrument 1. However, if the value of the property which will be advanced, is stated by the intestate donor (advancor) in a written instrument by him and designated the gift as an advancement, that will be the value of the advancement. 5. 29-27: Death of Advancee before Intestate Donor (advancor) 1. If the advancee dies before the advancor, and the advancee leaves heirs, the advancement is taken into account the same way as if it had been made directly to them (the heirs). 2. The value of the advancement shall be determined as of the time: 1. The original advancee came into possession (or) 2. When the heir/heirs came into possession 1. Whichever comes first. 6. 29-28: Inventory 1. the clerk can ask for an accounting of how much the individual received during his lifetime. If the individual does not provide such information, he will be cut out entirely from receiving anything from the estate. 7. 29-29: Release by Advancee 1. If the party says, in a signed writing, he has received his full share, it precludes him or any of his heirs from taking additional property.
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1. It binding not only on the advancee, but anyone who could claim through him (descendants)
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3. Howto Determinethe Valueof the Estateand the Valueof EachPersons Share 7. Calculatethe Hotchpot 1. TheNet Estate+ AnyAdvancements= Hotchpot. 2. Determineeachpersonsshare 3. Subtractfromeachpersonssharethe amounttheyreceivedin advancements. 1. Thatsall!!
2. Examples 1. D died wholly intestate survived only by his 3 children, C-1, C-2, and C-3. D's net estate after payment of debts, costs of administration, etc. is $12,000. During his lifetime, he made advancements of $1,000 to C-1 and $2,000 to C-2. How will D's estate be distributed? 1. Net Estate= 12,000,Advancements= 3,000, Total=15K 2. 15K/3kids = 5K each(Hotchpot) 1. C1 = 5K - 1K = 4K 2. C2 = 5K - 2K = 3K 3.C3 = 5K 1.Total = 12K 3. 15Kdoesntexist, so credit advancementsagainstthe personwho receivedit. 2. D, a widow, is survived by 3 children, X, Y, and Z. Several years before she died intestate, D made an advancement of $10,000 to X and of $20,000 to Y. After payment of debts and administration expenses, D's net estate is worth $120,000. To whom and in what amounts should D's estate be distributed? 1. Net Estate= 120,000,Advancements= 30,000,Total=150K (Hotchpot) 2. 15K/3kids = 5K each 1. C1 = 50K- 10K= 40K 2. C2 = 50K- 20K= 30K 3.C3 = 1.Total =
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50K 120K
3. Same facts as (2.), but assume that X's advancement totaled $100,000. To whom and in what amounts should D's estate be distributed? 1. Net Estate = 120K 2.Advancements = 100K to X, 20K to Y 3. 120K + 100K + 20K = 240K/3 = 80K (Hotchpot) 1. Xs share is larger than his share so he is left out of the calculation. So do the hotchpot again without X. 1. 120K + 20K = 140K/2 = 70K (Hotchpot) 1. Z = 70K 2. Y = 70K - 20K = 50K 1. 70K from Z + 50K from Y = 120K. 4. D, a widow, was survived by her son, C-1, and two grandchildren, G-1 and G-2, the children of D's deceased daughter, C-2. During her lifetime, D made an advancement of $20,000 to C-2. At her death, D's net estate was valued at $80,000. To whom and in what amounts should D's estate be distributed under NC law? Under the UPC? 1. Net Estate = 80K 2. Advancement to C2 = 20K 3. 80K + 20K = 100K/2 = 50K (Hotchpot) 1. C1 = 50K 2. C2 = 50K - 20K = 30K/2 (for G1 & G2) = 15K each
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9. Barsto Succession
1. Five (5) ways in which a Spouse can be barred from receiving under Intestate Succession. 1. NCGS 31A-1. Acts barring rights of spouse 1. A spouse from whom or by whom an absolute divorce or marriage annulment has been obtained or from whom a divorce from bed and board (legal separation ) has been obtained; [or] 2. A spouse who voluntarily separates from the other spouse and livesin un-condonedadultery ; [or] 3. A spouse who willfullyand withoutjust causeabandonsand refuses to live with the other spouse and is not living with the other spouse at the time of such spouse's death; [or] 1. cases of domestic violence 4. A spouse who obtains a divorce the validity of which is not recognized under the laws of this State; [or] 1. Guam has a package divorce deal (NC requires 1 year of separation) 5. A spouse who knowingly contracts a bigamous marriage 2. What rights do the spouse lose 1. Rights to inherit under intestate succession act 2. Lose homestead exemption 1. Essentially, provides protection from creditors leaving a debtor from being left penniless. 3. The right to petition for an elective share of the estate of the other spouse and take either the elective intestate share provided or the life interest in lieu of an intestate share. 4. Right to a years allowance 1. If there is a will, the allowance it is charged against the will 2. If there is not will (intestate succession) then it wont be credited against the receiver 5. All right to administer the estate of the other spouse; and 6. Any rights or interests in the property of the other spouse which by a settlement before or after marriage were settled upon the offending spouse solely in consideration of the marriage. 1. Prenuptial agreement.
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3. What does the spouse not lose under the statute 1. The right to take under a will 2. NCGS31A2: ActsBarringParents 3. Willfully abandoning the care and maintenance of the child. 1.Includes 2 exceptions 1.The parent resumes care and maintenance of the child prior to a year before the childs death. 1. Keeps parents from showing up on the childs deathbed. 2. The parent was deprived of custody under a court order but complied with the courts order regarding child support. 1. Includes trust fund baby where parent is placed in jail. 2. No matter how old the child is, the child is a child. 3. Care and maintenance does not have to be financial support. 3. Homicide 1. 3 Ways to Deal With Slayers in the Absence of a Statute 1. Legal title passes to the slayer and may be retained in spite of the crime 1. The denial of the inheritance to the slayer because of his crime would be imposing an additional punishment for his crime not provided by statute. 2. Legal title does not pass to slayer b/c no one should be permitted to profit by his own wrong. 3. Legal title passes to the slayer but equity holds him to be a constructive trustee for the heirs or next of kin of the decedent. 1. Property is acquired in such circumstances that the holder of legal title may not in good conscience retain the beneficial interest. Equity, to express its disapproval of his conduct, converts him into a trustee. 2. Kelley v. State- "But, even in the absence of statute, a court applying common law techniques can reach a sensible solution by charging the spouse, heir or legatee as a constructive trustee of the property where equity and justice demand it."
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2. NorthCarolinaSlayerStatutes 1. NCGS 31A-3 - There are eight ways to become a slayer 1. Convicted as a principle of the willful and unlawful killing of the decedent 2. Convicted of an accessory before the fact 3. Plead guilty as principle 4. Plead guilty as an accessory before the fact 5. Plead nolo contendare (no contest) as a principle 6. Plead nolo contendare as an accessory before the fact 7. If the party commits suicide after killing the decedent but before being tried [or] is murdered before they are tried they are still a slayer if a civil court determines that they willfully or unlawfully killed their spouse or procured the killing. 8. A juvenile who, if he was an adult, could be convicted of a crime that the that would bar him from inheriting. 2. NCGS 31A-6 - Slayer barred from getting Testate or Intestate Succession Property 1. Slayer is deemed to have predeceased (immediately before) D if slayer is deemed to be the slayer of D 1. Slayer cannot acquire property or get any benefit from Ds estate either through Will or Intestate Succession, even if the slayer is a SS. 2. If D dies by slayers hands, and D dies intestate with property that would have gone to slayer, if the slayer has issue, you treat him as though he predeceased D and the property goes to slayers issue. The portion that goes to the issue goes though NC per stirpes. 1. If Slayer kills D, and slayer would have gotten property from Ds estate, pretend slayer is dead and give his share to his issue according to NC per stirpes. 3. If slayer has no issue, the property goes through intestate succession with slayer acting as though he predeceased D. 3. 31-42AAnti-lapsestatute
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1. Referringto 31A-6- at Ds deaththe part of sharethat wouldhave goneto slayergoesto the decedentsestateand the slayerholds that sharefor the remainderof his life and thenit to passesto Ds estate. 4. NCGS 31A-7: Property Held as Tenants by the Entirety 1. If Slayer holds property with D as TE and kills D. The half that belongs to D passes through his estate. Slayers portion is kept by him as a LE, with the remainder passing to Ds heirs or devisees. 5. NCGS 31A-11 Insurance Benefits 1. If the slayer is the beneficiary and kills the insured, you treat the slayer as having predeceased the slayer. If the insurance does not list an alternative beneficiary, then it goes to the decedents estate. 6. NCGS 31A-12 - Persons Acquiring from Slayer Protected 1. Protects purchasers who buy from the seller for adequate consideration, before the slayers interests have been adjudicated (found guilty) [and] without notice of the circumstances. BUT all consideration received by the slayer must be held in trust for the decedents estate and is liable for any amount dissipated and for any difference between the actual value of the property and the amount of such consideration. 1. If a person has been charged, then it is generally per se notice. 3. Aliens 1. 29-11 1. Unless otherwise, doesnt matter that the receipt of a share in an estate is an alien 2. 64-1: Real Property 1. Alien can inherit real property 3. 64-3: Personal Property 1. They can inherit if there country of residence allows US citizens to inherit from them. However, no alien, because of his citizenship shall be disqualified from inheriting personal property in NC. 4. 64-4: Escheats
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1. Regarding person property under 64-3, If the only heir is a non-resident alien not allowed to take under the statues then it escheats.
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5. 64-5: Burden of Proof 1. Burden of proof is on person asserting the alien is disqualified to take personal property.
10. Disclaimer/Renunciation
1. the refusal to accept property from a decedent 1. NC Statutes 1. NCGS 31B-1 1. Anyone may renounce an intestate gift in whole or in part by filing a written gift, signed by the renouncer. The renunciation may be a portion of any share or limited interest or estate. 1. If the decedent or donee of the power state that partial renouncements are not acceptable, then they wont be valid. 2. NCGS 31B-3 (c) 1. distribute renounced interest as if the renouncer had predeceased D, unless the renouncer has living issue who would have inherited in which case the renounced portion is distributed to the heirs under NC per stirpes. 3. NCGS 31B-4: Waiver and Bar 1. The right to renounce is barred by: 1. transfer of property; 2. written waiver 3. sale of the property. 2. The renunciation or written waiver is binding upon the renouncer. 3. You are not liable for distributing the shares of an estate if you acted in reliance to the terms of the renunciation that turns out to be invalid 4. If you accept you may be unable to renounce later.
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DecedentEstatesOutline:Fall 2008- ProfessorSolari