decedent estates outline

7/30/2019 Decedent Estates Outline

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DecedentEstatesOutline: Fall 2008 - ProfessorSolari

1. General Definitions

1. Testate: decedent died witha will

2. Intestate: decedent dies withouta validwill.

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 realproperty

4. Devisee: the person who receives the realproperty 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 wherethere was no will or an invalid will.

9. ProbateProperty: property that passes through the dead guys estate.

1. Goods, clothing, jewelry, etc.

10. Non-probateProperty: 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 marriage13. Descendants/Issue: those who come afteryou by blood (i.e. children,

grandchildren).

14. Ascendents/Ancestors: those you came beforeyou by blood (i.e. parents,

grandparents).

15. Lineal Heirs: 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.

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2.North CarolinaIntestate SuccessionAct: 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 statewhere 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. "Lineal descendants"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.

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3.IntestateSuccessionAnalysis: REMEMBERTHEREIS NO WILL

1.Remember:

1.spousethen

2.issuethen

3.parent1.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 moreremote 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.

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3. Share of 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 FACTS

ENTIRE SHARE (No parents, all

kids are ours)

1. D has no surviving issueor parent

OR

2. All of Ds surviving lineal

descendants are ALSOlineal descendants of SS

AND SS has no other issue

FIRST 200K + 3/4 OF

BALANCE (No kids, but there is a

parent)

D has no surviving issue BUT

D has one/more survivingparents

FIRST 150K + 1/2 OF

BALANCE (All of Ds kids are SSs

kids, and SS has somekids that

arent Ds)

All of Ds surviving issue areALSO lineal descendants of

SS AND SS has survivingissue who are not issue of the

D

FIRST 100K + 1/2 OFBALANCE (The kids arent SSs)

D has surviving issue who areNOT issue of SS

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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 REALPROPERTY FACTS

FIRST 30K + 1/2 OF PPBALANCE

(1 Kid )

1/2 undivided interest asTC

D is survived by only onechild or by any grandkids

of only one deceased child.

FIRST 30K + 1/3 OF PPBALANCE

(2 Kids)


D is survived by 2 or morekids [or] by one and any

grandkids of one or more

deceased kids [or] bygrandkids of 2 or moredead kids.

First 50K + 1/2 of PPbalance

(1 Parent, No Kids)


D has no surviving kids orgrandkids, but one or both

parents survive D.

ALL

(No Kids & No Parents)

ALL No surviving descendantsor parents

5.Additional N.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.

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4. SimultaneousDeath: What happensif 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 Main Issue: If 2 peopledie in the samedisaster, there is little reasonto have

their respectiveestatespass to the others estatesbecausethe deadhave no

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. Payor1. any other personauthorizedto 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 amongmembers 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 takealternatively, 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. 28A-24-2: Requirementof Survival by 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 thedecedent 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 equalshares

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 Hour Rule

1. If A has a son, B and they die at the sametime. In order for B and his

heirs to take, it wouldhave to be provenby clear and convincing

evidencethat B outlivedA by 120 hours(5 days) otherwiseB will be

declaredto have predeceasedA and As estate will go throughthe

intestatesuccessionact.

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5. Share of Descendants;NegativeDisinheritanceDistributionto Decedents:The

share of those who cameafteryou, if there are 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 Capita Representation

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 decedentsestate is dividedinto sharesat the generationallevel

nearestto the decedentin whichone or moredescendantsof the

decedentare alive and providesfor representationof any deceaseddescendanton that level by his or her descendants.

1. DO NOTCOUNTDESCENDANTSWHODONTHAVESURVIVE

WHOALSODONTHAVESURVIVINGISSUE.

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3. Per Capita at 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 potand are dropped down and divided equally among

the representatives on the next generational level.

1. Go to the first generation with living descendants and divideequally for each person including deceased descendants with

surviving issue.

1. REMEMBER:The remainingportionthat goesto survivingissue

goes into a pot and is 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.

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6. Sharesof Ancestorsand Collaterals: The share for those who came beforeyou if

there are any. ONLYif there are no kids, grandkids,etc.

1. This Situationcomesinto play whenD leavesno descendants(no spouse

or children) then his estate goes throughparent, 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 thanDs parents and their issue

1. Great Grandparents

2. Great Uncles/Aunts

3. Second Cousins

6. Fourth Line Collaterals: Descendantsof Ds Great-Great grandparents,

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 ThereISFirst Line Collaterals(spouse,kids, parents, nieces, etc) then use:

1. Englishper stirpes

2. ModernPer StirpesDistribution/WithPer Capita Representation

3. Per Capita at EachGenerationalLevel (NC & UPC)

2. IF THEREIS NOFIRSTLINECOLLATERALUSEONEOF THEFOLLOWING

1. ParentelicSystem(Use of Line Collaterals): 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 andtheir descendants, if none, then to great-great-

grandparents 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- NCGS104A-1: (father, brother, nephew,grand-

nephew,etc)

1. the intestate estate passes to the closet of kin, counting

degrees of kinship. To ascertainthe degreeof kinship, counteach 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 Line Collateral Example

1. Start fromD, then go to parent (1), then to

grandparent(if there is one) (2), then to uncle (3),

then to cousin(4), then to 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 Parentelicapproach

4. LimitedParentelic: NC & UPCApproach

1. You do 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 & 29-161. 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. MajorityRule (UPC/NC):

1. Half-blood is treated same as a relative of whole-blood. No

distinctionbetweenwhole-bloodsand half-bloods

4. Minorityjurisdictions:

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 half-

blood (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 1/43. 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 adoptedfamily and cut

of the inheritancerights b/w the child and her biologicalparents

1. NCGS 29-171. 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 adoptiveparents 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. relianceby the parties on that agreement,

3. performanceby the natural parentsof the child

in giving up custody,

4. performanceby the childin living in the home

of the adoptive parents and acting as theirchild,

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 born afterthe death of 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. Non-marital Children(Child Born out of Wedlock)

1. Common Law:

1. A child born of no marriage (wedlock) was considered no one's

child (filius nullius). 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 motherso that the illegitimate

child is entitled to inherit.

2. For purposesof intestatesuccession,a illegitimatechild can inherit

from:

1. A personjudgedto be the father of the child

2. A personwho has acknowledgedhimself to 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. 49-10legitimated in a court proceeding pursuant tothe 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 naturally conceivedlegitimatechild 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 isrequired)

2. Some states will not allow adult adoption under the circumstances of

gay relationships.

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8.Advancements(think of it as a prepayment)

5.NCGS29-2 (1) Advancement- An irrevocableinter vivosgift of property, madeby an

intestatedonorto any personwho wouldbe his heir or one of his heirs uponhis death,

and intendedby the intestatedonorto enablethe donee(recipient) to anticipatehis

inheritanceto the extent of the gift; exceptthat no gift to a spouseshall be considered

and an advancementunlessso designatedby the intestatedonorin a writingsignedby

the donorat the time of the gift.

1.BrokenApart

1.Irrevocable

2.Inter VivosGift

3.of property

4.Madeby Advancor

5.To a wouldbe heir6.To enableadvanceeto anticipatean inheritance

7.To the extent of the gift

8.GIFTSTO SPOUSESDONTCOUNT

1.Unless

1.Designatedby the advancorin a writingsignedby him at

the time of 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 advancementunlessshown 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 return it.

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: Valuation1. 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. With A 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 advanceeleaves 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 Value of the Estate and the Value of Each Persons

Share

7. Calculatethe Hotchpot

1.The Net Estate + Any Advancements= Hotchpot.

2.Determineeach personsshare

3.Subtract fromeach personsshare the amountthey receivedin

advancements.

1. Thats all!!

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 madeadvancements 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/3 kids = 5K each(Hotchpot)

1.C1 = 5K - 1K = 4K

2.C2 = 5K - 2K = 3K

3.C3 = 5K

1.Total = 12K

3.15K doesnt exist, 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/3 kids = 5K each

1.C1 = 50K - 10K = 40K

2.C2 = 50K - 20K = 30K

3.C3 = 50K

1.Total = 120K

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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 twograndchildren, 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. Bars to Succession

1. Five (5) ways in which a Spouse can be barred from receiving underIntestate 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

lives in un-condonedadultery; [or]

3. A spouse who willfully and 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 becredited 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.NCGS31A-2: Acts BarringParents

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 yearbefore 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 hiscrime 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. North CarolinaSlayer Statutes

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 IntestateSuccession, 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, pretendslayer 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. 31-42A Anti-lapsestatute

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1. Referringto 31A-6- at Ds death the part of share that wouldhave

goneto slayer goesto the decedentsestate and the slayer holds

that share for the remainderof his life and then it 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. Thehalf 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.

decedent estates outline

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