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.


DecedentEstatesOutline:Fall 2008- ProfessorSolari

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.


1.spousethen 2. (A) -> X. 5. Look to see if D was survived by any descendants (kids & grandkids) 3. their descendants. IntestateSuccessionAnalysis:REMEMBERTHEREIS NO WILL 1. Remember: 1. X. Brothers & Sisters). Look to grandparents. After parents go to other ascendents and collateral 4. Q & Z cannottake before B takes. B -> Q & Z. and more remote relatives. Look to see if D was survived by parent 4.issuethen 3.(W) -> (A) & B. Look for a survivingspouse(SS): THESS ALWAYSTAKES FIRST 2.e. D -. Look to see if there are descendants of D’s parents (i.parent 1.DecedentEstatesOutline:Fall 2008.ProfessorSolari 3. 1. 3 .

29-14 4. D has no surviving issue or parent ← OR ← 2. Remember:UPCmakesno distinctionb/t Personaland Real property.N.ProfessorSolari 3.all kids are ours ) FACTS ← 1. and SS has somekidsthat aren’t D’s) FIRST 100K + 1/2 OF BALANCE (The kidsaren’t SS’s) 4 .G.C. Comparison B/T Uniform Probate Code (UPC) § 2-102 and N. Shareof the SurvivingSpouse 3.C. but thereis a parent ) FIRST 150K + 1/2 OF BALANCE (All of D’s kids are SSs kids.SDOES!! 5. All of D’s 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 D’s 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.G.DecedentEstatesOutline:Fall 2008.S.UNDER THE UPC § 2-102 ← SS SHARE ENTIRE SHARE (No parents.

but one or both parents survive D.G. If part of the estate has been dealt with through a valid will.C.DecedentEstatesOutline:Fall 2008.S 1.G.S2-14: 1.No Kids) ALL (No Kids& No Parents) 1/2 undivided interest as TC ALL 5.UNDERTHEN. REMEMBER: NC distinguishes Real and Personal Property during the calculation of the spouses share 2. 5 . DIVIDE THE REAL PROPERTY AND THEN DISTRIBUTE THE PERSONAL PROPERTY. the rest will be taken care of through the law of Intestate Succession. 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.ProfessorSolari 4. 29-8: Partial Intestacy 1. AdditionalN.C. D has no surviving kids or grandkids. No surviving descendants or parents 1/3 undivided interest as TC First 50K + 1/2 of PP balance (1 Parent. 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.

ProfessorSolari 4. the property is to be disposed of as if each had survived unless otherwise. business entity. the class is open 3. government 2. Payor 1. Disposition of property where no sufficient evidence of survivorship 1. Deed.DecedentEstatesOutline:Fall 2008. 6 . so neither inherits from the other. If property is so disposed of that its disposition depends upon the time of death of two or more beneficiaries designated to take alternatively. and there is no sufficient evidence that such beneficiaries have died otherwise than simultaneously. does the heir or devisee succeed to the person's property? 1. The MainIssue:If 2 peopledie in the samedisaster. Governing Instrument 1. 1. the beneficiary (heir) is deemed to have predeceased the donor. any otherpersonauthorizedto makepaymentsincluding trustee. 3. When a person dies simultaneously with his heir or devisee. Will. 2. each member of the class so dying will be deemed to have survived the other person. Co-Owners with Right of Survivorship 1. The class is not to be determined until the time of death. Tenants by the Entirety & Co-Owners of Property. by reason of survivorship. 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. SimultaneousDeath:Whathappensif D and heir die at the sametime? 1. 2. Uniform Simultaneous Death Act (NCGS §28A-24-2). Trust.thereis little reasonto have their respectiveestatespassto the other’sestatesbecausethe deadhaveno use for property. 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. Insurance or Annuity Policy 3. insurer. Uniform Simultaneous Death Act (USDA): if there is insufficient evidence of the order of deaths. When property rights must be determined by who died first and there is not enough evidence to support any other finding other than simultaneously. employer. Definitions 1. Joint Tenants. 28A-24-1 1. 2.

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. and the language covers the facts in the case. Exceptions to the 120 Hour Requirement 1. but survival must be established by clear & convincing evidence. Underthe 120 HourRule 1. 28A24-2: Requirementof Survivalby 120 Hours(5 FULLDays) 1. the governing instrument specifically states that he does not need to survive another person by any specified period. then he will be deemed to have predeceased the decedent for purposes of disposing the estate. 2. 7 . 3.e. 3. and these shares will be distributed. If A has a son.DecedentEstatesOutline:Fall 2008. If the 120 hour requirement would cause a non-vested property interest or a power of appointment to fail to qualify for validity. In order to inherit a person must survive the decedent. Survival by 120 hours is not required if: 1. it wouldhaveto be provenby clearandconvincing evidencethat B outlivedA by 120 hours(5 days)otherwiseB will be declaredto havepredeceasedA and A’s estatewill go throughthe intestatesuccessionact. In orderfor B and his heirs to take. Alternate contingent remainders 4. 4. 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. If the governing instrument speaks directly to simultaneous death in a common disaster. 5. If the requirement results in an escheat. 4.ProfessorSolari 1. but survival must be established. 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. B andtheydie at the sametime. the estate will be divided into as many equal shares as there are alternative beneficiaries.

In the end. if thereare any. where no children survive the decedent. 1. ModernPer StirpesDistribution/WithPer CapitaRepresentation 1. If so. The split occurs at the first level and representation is divided downward. Each of the 2 children have 2 children (D had 4 grandchildren) 1. then the estate is divided equally (per capita) at the first generational level in which there are living takers. 1. 1. Strict Per StirpesDistribution 1. D dies a widow with 2 children 1. Under Strict per stirpes.DecedentEstatesOutline:Fall 2008. Example 1. Divide the property into as many shares as there are living children of the designated person and deceased children who have descendants living. 2. The decedent’sestateis 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. First Line Collaterals 1. 1. However. The children of each descendant represent their deceased parent and are moved into their parent’s position beginning at the first generation below the designated person. the distribution is identical to that under English per stirpes. 2. each of D’s grandchildren would get a 1/4 interest in the estate. 8 . One looks first to see whether any children survived the decedent. you start at the 2 kids who would get a 1/2 interest each and then divide their interest for their respective kids. Shareof Descendants.ProfessorSolari 5. A stirpes is allocated for each living descendant or deceased descendant which has living issue. DO NOTCOUNTDESCENDANTSWHODON’THAVESURVIVE WHOALSODON’THAVESURVIVINGISSUE. 2.NegativeDisinheritanceDistributionto Decedents:The shareof thosewhocameafter you.

DecedentEstatesOutline:Fall 2008. 2. 1. Can still go to X’s issue however since the issue may not have been disinherited. NC says any part of estate not validly disposed of passes by Intestate Succession. REMEMBER:The remainingportionthat goesto survivingissue goesinto a pot andis distributedevenly 4.ProfessorSolari 3. 4. 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. When a testator says in a will they do not want X to inherit anything from him. 9 . No state allows disinheritance of a spouse 3. UPC 1. Go to the first generation with living descendants and divide equally for each person including deceased descendants with surviving issue. 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. Per Capitaat EachGenerationalLevel (NC& UPC) 1. the person is considered “disclaimed” and X is treated as having predeceased. Allows for a negative will and says you may expressly exclude. NegativeDisinheritance 1. The first division is made at the first generational level where there is a surviving issue. 1. 1.

: Aunts. First Cousins 4.etc. other than D and D’s Issue 1. Great Uncles/Aunts 3. grandparents. under the UPC. Remember: There are lines of collaterals and degrees of kinship. other than D’s parents and their issue 10 . Grand Nephews/Nieces 4. Second Line Collaterals: Descendantsof D’s grandparents . grandkids. the intestate property is usually distributed to D’s parents. i. If there is no spouse or parent.e. don’t get them mixed up. Second Cousins 6.ProfessorSolari 6. Collateral Kindred: All persons who are related by blood to D but who are not descendants or ancestors. 3. 2. Uncles/Aunts 3. 1. First Cousins Once Removed 5. other than D’s parents and their issue 1. Brothers/Sisters 3. 1.nephew. the decedent’s ancestors and collaterals do not take. D’s heirs will be more remote ancestors (aka Collateral Kindred). ThisSituationcomesinto play whenD leavesno descendants(no spouse or children)thenhis estategoesthroughparent. When the intestate decedent is survived by a descendant. Nephews/Nieces 4.etc. Third Line Collaterals: Descendantsof D’s Great-grandparents .DecedentEstatesOutline:Fall 2008. 1. Great Grandparents 2. after deducting the spouse’s share. First Line Collaterals: Descendantsof D’s Parents . nieces. When there is no descendant. ONLYif thereare no kids. other than D’s parents and their issue 1. Grandparents 2. Fourth Line Collaterals: Descendantsof D’s Great-Greatgrandparents . Sharesof Ancestorsand Collaterals:The sharefor thosewhocame beforeyou if thereare any. Cousins 2. 1. Uncles. Parents 2.

2nd LineCollateralExample 1. If ThereIS First LineCollaterals(spouse. if none. parents. then to great-greatgrandparents and their descendants. Per Capitaat EachGenerationalLevel (NC& UPC) 2. 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. 11 . thento uncle(3). counting degrees of kinship. the intestate estate passes to the closet of kin. 2. First Cousins Twice Removed 3.DecedentEstatesOutline:Fall 2008. to 2nd (if none).ProfessorSolari 1. thento grandparent(if thereis one) (2). counting degrees of kinship. to 3rd. Start fromD. To ascertainthe degreeof kinship .nieces. 1. ModernPer StirpesDistribution/WithPer CapitaRepresentation 3. IF THEREIS NO FIRSTLINECOLLATERALUSEONEOF THEFOLLOWING 1. Great-Grand Uncles/Aunts 3.etc) 1.etc) thenuse: 1. thengo to parent(1). Great-Great Grandparents 2. Englishper stirpes 2. 1.NCGS104A1: (father. Degreeof Kinship. Rules to Shares of Ancestors and Collaterals 1. Basically you go from First Line Collaterals to Second Line to Third Line Collaterals and so on until you find someone. The intestate estate passes to grandparent and their descendants. thento cousin(4). then to great-grandparents and their descendants. The total number of steps is the degree of relationship. and etc. brother. The intestate estate passes to the closest kin. ParentelicSystem(Useof LineCollaterals):1st line (if none).grandnephew. if none. To ascertain the degree of kinship from D to the claimant. you count the stops (counting 1 for each generation) 1. thento secondcousin(5) until you get to someone.

YOU ARE ALWAYS LIMITED TO 2ND DEGREE COLLATERAL. 3. YOU CAN GO PAST 5TH DEGREE SO LONG AS YOU DON’T GO PAST 2ND DEGREE COLLATERAL. NCGS§29-7 & 29-16 1. 1. Youdo not go beyond2nd degreecollateral. use Parentelic approach 4.ProfessorSolari 1. DISREGARD DEGREES OF KINSHIP. 12 . 1. BUT YOU ARE ALSO LIMITED TO 5TH DEGREE OF KINSHIP.DecedentEstatesOutline:Fall 2008. LimitedDegreeof Kinship 1. UPC§2-103 1. if there is a tie. 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. BUT 5TH DEGREE IS NOT THE LIMITATION. ONLY USE PARENTELIC BUT YOU ARE LIMITED TO 2ND DEGREE COLLATERAL 2. Use Degree of Kinship. LimitedParentelic:NC & UPCApproach 1.

total these numbers up (2 + 2 + 1 = 5) to get you denominator. Q is out b/c B and S are whole bloods of the same degree 4. Common law courts wholly excludedrelatives of half-blood from inheriting land through intestate succession. Oklahoma 1. American system: 1. Half-Bloods 1. Add them up = 4 (the denominator) 2. Mississippi : 1. Half-blood is treated same as a relative of whole-blood. 2. 1. Whole = 2X) 1. Q (half blood) is given 1. C is half blood (1). Minority jurisdictions: 1. A gets 2/4 or 1/2 3.ProfessorSolari 4. Virginia : 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. English rule has been abolished. 3. Miss: B and S ½ each. S.DecedentEstatesOutline:Fall 2008. NC: 1/3 to each 2. his sister. and his half brother. VA: broken down—B and S (whole bloods) are going to be given 2 each. and Q will be entitled to 1/5 13 . B is half-blood (1).Whole-blood gets twice as much as halfblood (Half blood = X. Ex. A is full-blooded (2). B gets 1/4 4. B. How will D’s estate be distributed? 1. Half-blood can only inherit if no whole-blood of the same degree can take 2. Majority Rule (UPC/NC): 1. C gets 1/4 3. English system: 1. D died intestate survived by his brother. Q. then B and S are going to get 2/5s each. No distinctionbetweenwholebloodsand half-bloods 4. Half-blood gets half as much of the share a whole-blood would take . UPC: 1/3 to each 3. 5.

OK: 1/3 to each 14 .DecedentEstatesOutline:Fall 2008.ProfessorSolari 5.

Texas 1. Two way street – by. or will marry an adoptive parent. 1. 1. Maryland 1. Transfersto Children 1. 3. IF a natural parent has married. through. Views on Inheritance from Adoption by State 1. Adopted children inherit from adoptive relatives and also from natural relatives if the child is adopted by a stepparent. and from child and natural parent wedded to adoptive parent 3. 15 . AdoptedChildren:NC favorsTotal Assimilation 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. Two way street – by. Total assimilation—transplantthe adoptedchild into the adoptedfamilyand cut of the inheritancerightsb/w the child and her biologicalparents 1. Adopted children inherit from both adoptive parents and natural parents and their relatives. NCGS 29-17 1.ProfessorSolari 7.DecedentEstatesOutline:Fall 2008. and from child and adoptive parent 2. is married to. through. the child is considered the child of that natural parent for all purposes of intestate succession. UPC 1. Adopted children inherit only from adoptive parents and their relatives 2.

2. 1. performanceby the naturalparents of the child in giving up custody. 1. 4. 3. Descendants of D born within 10 monthsafter D’s death shall inherit as if they had been born when D was still alive and survived him. and 6.DecedentEstatesOutline:Fall 2008. equitable adoption must be proven by clear and cogent evidence. 16 . 2. It confers rights of inheritance upon the foster child in the event of intestacy of the foster parent. the child can inherit. performanceby the child in living in the home of the adoptive parents and acting as their child. Elements necessary to establish the existence of equitable adoption: 1. When a child is not formally adopted. NCGS 29-9 1. reliance by the parties on that agreement. In NC. a higher standard than preponderance of the evidence standard. 1. as long as the child is in conception when the decedent died and born alive. If the child is born before 10 months then he is presumed to have been in gestation and is believed to take from D. Traditional Rule 1. 2. 3. but should have been.ProfessorSolari 2. 5. Equitable Adoption (Virtual Adoption) 1. The child has to be in existence at the time of D’s death.the intestacyof the adoptiveparent. An express or implied agreementto adopt the child. PosthumousChildren:child bornafter the deathof intestateparent. Arises when adopting parents die 1. partial performanceby the adoptiveparentsin taking the child into their home and treating the child as their own BUT DIDN’T FORMALLY ADOPT. 2.

1.ProfessorSolari 3. Modern law 1. 2. Nonmarital Children(ChildBornout of Wedlock) 1. A personwhohas acknowledgedhimselfto be the father. Other States. 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. he is treated as a legitimate child 1. 2. All States. 49-10 legitimated in a court proceeding pursuant to the father’s petition 2.a illegitimatechild can inherit from: 1. Some States. A personjudgedto be the fatherof the child 2. through and from illegitimate children 1. That child could not inherit from anyone.DecedentEstatesOutline:Fall 2008. Method to Legitimate in NC 1. NCGS 29-18 – Once the child is legitimated. Note: North Carolina and most States legitimization occurs if the parents marry after the child's birth. 4. Common Law: 1. For purposesof intestatesuccession. 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 child born of no marriage (wedlock) was considered no one's child (filiusnullius ).A child born to a married woman is presumed to be the child of her husband. 17 . 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. 3.all children are recognized as children of the mother inherit from the father. his mother or father.Children belong to their fathers also 3. through intestacy. By the intermarriage or subsequent marriage of the child’s parents 3. there are additional requirements 3. NCGS 29-19: Succession by. NCGS 49-12 .

The defining question is whether there was expressed consent by the deceased that he wanted children after he was dead. but leaves everything to B.DecedentEstatesOutline:Fall 2008.1 . 2. but not his or her spouse)(requires consent by both adopting parents if they are married) 3. If A does not adopt B. 4. 5. NCGS 49-12. A’s parent’s no longer have standing to challenge A’s will. Some states will not allow adult adoption under the circumstances of gay relationships. 1. NC allows adult adoption… NCGS § 48-5-101(adult may adopt another adult. ReproductionTechnology 4. may file petition to legitimate the child. NC – Only intestate heirs have the ability to sue. 18 . Guardian ad litem necessary to represent the child. but the spouse of the married woman must consent to the petition.Adult Adoption 1. NCGS § 102 (the consent of the adult being adopted is required) 2. 5. thus if A adopts B.ProfessorSolari 4.If the putative father of a child born to a woman who is married to another man. A’s parents do have standing to challenge the will since they are the intestate heirs. 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.

ProfessorSolari 8. BrokenApart 1. 2.Advancements(thinkof it as a prepayment) 5. NCGS 29-23 1. Unless 1. NCGSStatutes 1. Madeby Advancor 5. 29-25: Effect of Advancement 1. GIFTSTO SPOUSE’SDON’TCOUNT 1. A gratuitous inter vivos transfer is presumed to be an absolute gift and not an advancementunless shown to be an advancement. 3. NCGS29-2 (1) “Advancement”. 2. 1. To a wouldbe heir 6.DecedentEstatesOutline:Fall 2008.NOT AN ADVANCEMENT) 1. Inter VivosGift 3. Irrevocable 2. exceptthat no gift to a spouseshall be considered and an advancementunlessso designatedby the intestatedonorin a writingsignedby the donorat the timeof the gift. If a person dies intestate.An irrevocableinter vivosgift of property. The amount of an advancement equals or exceeds the intestate share of the advance.madeby an intestatedonorto any personwhowouldbe his heir or one of his heirsuponhis death. 1. The burden of proof is going to be on the person who doesn’t want the donee to take. Designatedby the advancorin a writingsignedby himat the timeof the gift.To enableadvanceeto anticipatean inheritance 7. 29-24: Presumptionof Gift (THEREIS A PRESUMPTIONTHATIT IS A GIFT. the advancee is excluded from receiving anymore. and intendedby the intestatedonorto enablethe donee(recipient)to anticipatehis inheritanceto the extentof the gift. of property 4. the property which he gave as an advancement to the advancee will be counted toward what he will take. 19 . THE ADVANCEE WILL NOT TAKE MORE THEN HIS INTESTATE SHARE. To the extentof the gift 8.

29-28: Inventory 1. it precludes him or any of his heirs from taking additional property. the advancement is taken into account the same way as if it had been made directly to them (the heirs). However.DecedentEstatesOutline:Fall 2008. If the advancee receives less then his intestate share with the advancement then he will get an amount to equal his intestate share. 7. 2. 4. the clerk can ask for an accounting of how much the individual received during his lifetime. 6. in a signed writing. 2. At the time of the death of the intestate 1. is stated by the intestate donor (advancor) in a written instrument by him and designated the gift as an advancement. he will be cut out entirely from receiving anything from the estate. The original advancee came into possession (or) 2. 29-26: Valuation 1. If the individual does not provide such information. 29-29: Release by Advancee 1. The value of the property given as an advance is determined as of the time when: 1. When the heir/heirs came into possession 1. he has received his full share. 5. he will not be requiredto returnit.ProfessorSolari 1. WithA WrittenInstrument 1. Whichever comes first. The value of the advancement shall be determined as of the time: 1. that will be the value of the advancement. 20 . and the advancee leaves heirs. 2. If the advancee dies before the advancor. If the advancee receives a greater portion because of his advancement. If the party says. WithoutA WrittenInstrument 1. if the value of the property which will be advanced. 29-27: Death of Advancee before Intestate Donor (advancor) 1. The advancee came into possession or enjoyment (or) 2. Whichever comes first.

ProfessorSolari 1.DecedentEstatesOutline:Fall 2008. It binding not only on the advancee. but anyone who could claim through him (descendant’s) 21 .

C2 = 50K.Advancements= 30. 15K/3kids = 5K each 1. D's net estate after payment of debts. Several years before she died intestate. costs of administration. 2. Y.C3 = 5K 1. Calculatethe Hotchpot 1. etc.000 to C-1 and $2. 2. During his lifetime. D's net estate is worth $120.Total=150K (Hotchpot) 2. a widow. X. D. Howto Determinethe Valueof the Estateand the Valueof EachPersons Share 7. so credit advancementsagainstthe personwho receivedit. How will D's estate be distributed? 1. he made advancements of $1. C2 = 5K .ProfessorSolari 3.000. TheNet Estate+ AnyAdvancements= Hotchpot.000. Total=15K 2. Thatsall!! 2. Determineeachpersonsshare 3. C-2.20K= 30K 3.000 to C-2. C1 = 50K. D made an advancement of $10.DecedentEstatesOutline:Fall 2008.000. is $12.000. 1. Net Estate= 120. Examples 1. C-1. Subtractfromeachpersonssharethe amounttheyreceivedin advancements.2K = 3K 3.000 to X and of $20.000 to Y.Total = 22 50K 120K .000. D died wholly intestate survived only by his 3 children. 15Kdoesn’texist.1K = 4K 2. To whom and in what amounts should D's estate be distributed? 1. and C-3. is survived by 3 children.Advancements= 3. After payment of debts and administration expenses.10K= 40K 2.000.Total = 12K 3. Net Estate= 12. 15K/3kids = 5K each(Hotchpot) 1. and Z. C1 = 5K .C3 = 1.

000. C-2. D made an advancement of $20. X’s share is larger than his share so he is left out of the calculation.20K = 50K 1.Advancements = 100K to X. 120K + 100K + 20K = 240K/3 = 80K (Hotchpot) 1. 1. D's net estate was valued at $80. C-1. 120K + 20K = 140K/2 = 70K (Hotchpot) 1. 4.000. Z = 70K 2. To whom and in what amounts should D's estate be distributed? 1. 20K to Y 3. Net Estate = 120K 2. a widow.20K = 30K/2 (for G1 & G2) = 15K each 23 . So do the hotchpot again without X.000 to C-2. Y = 70K . G-1 and G-2. the children of D's deceased daughter. was survived by her son. D. Net Estate = 80K 2. C2 = 50K .DecedentEstatesOutline:Fall 2008. At her death. During her lifetime.). and two grandchildren. To whom and in what amounts should D's estate be distributed under NC law? Under the UPC? 1. C1 = 50K 2. 80K + 20K = 100K/2 = 50K (Hotchpot) 1. but assume that X's advancement totaled $100. 70K from Z + 50K from Y = 120K.ProfessorSolari 3. Advancement to C2 = 20K 3. Same facts as (2.

DecedentEstatesOutline:Fall 2008. [or] 2. Lose homestead exemption 1. What rights do the spouse lose 1. [or] 3. [or] 1. 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. provides protection from creditors leaving a debtor from being left penniless. 4. the allowance it is charged against the will 2. Barsto Succession 1. 24 . 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. 3. Rights to inherit under intestate succession act 2. Prenuptial agreement. Essentially. 1. If there is a will. Guam has a package divorce deal (NC requires 1 year of separation) 5. If there is not will (intestate succession) then it won’t be credited against the receiver 5. Right to a year’s allowance 1. A spouse who voluntarily separates from the other spouse and livesin un-condonedadultery . and 6. All right to administer the estate of the other spouse. A spouse who knowingly contracts a bigamous marriage 2. [or] 1. A spouse who obtains a divorce the validity of which is not recognized under the laws of this State. Acts barring rights of spouse 1. Five (5) ways in which a Spouse can be barred from receiving under Intestate Succession. cases of domestic violence 4.ProfessorSolari 9. NCGS §31A-1. 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. 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.

heir or legatee as a constructive trustee of the property where equity and justice demand it. The right to take under a will 2. even in the absence of statute. 1. 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. 2. Equity.The parent resumes care and maintenance of the child prior to a year before the child’s death. Property is acquired in such circumstances that the holder of legal title may not in good conscience retain the beneficial interest. 2. 3. 3. 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. to express its disapproval of his conduct. 2. Legal title passes to the slayer and may be retained in spite of the crime 1. converts him into a trustee.ProfessorSolari 3.Includes 2 exceptions… 1. 1. the child is a child. Willfully abandoning the care and maintenance of the child.DecedentEstatesOutline:Fall 2008. NCGS31A2: ActsBarringParents 3. What does the spouse not lose under the statute 1. 1. Homicide 1. The parent was deprived of custody under a court order but complied with the court’s order regarding child support. Care and maintenance does not have to be financial support."But. Includes trust fund baby where parent is placed in jail. 1. No matter how old the child is. State." 25 . Legal title does not pass to slayer b/c no one should be permitted to profit by his own wrong. 3. 3 Ways to Deal With Slayers in the Absence of a Statute 1. a court applying common law techniques can reach a sensible solution by charging the spouse. Kelley v. 2. Keeps parents from showing up on the child’s deathbed.

If Slayer kills D. and slayer would have gotten property from D’s estate. NCGS §31A-3 . Plead guilty as an accessory before the fact 5. could be convicted of a crime that the that would bar him from inheriting. The portion that goes to the issue goes though NC per stirpes. If slayer has no issue. Plead nolo contendare as an accessory before the fact 7.DecedentEstatesOutline:Fall 2008. 31-42AAnti-lapsestatute 26 . even if the slayer is a SS. 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.Slayer barred from getting Testate or Intestate Succession Property 1. if the slayer has issue. A juvenile who.There are eight ways to become a slayer… 1. and D dies intestate with property that would have gone to slayer. 2. Plead guilty as principle 4. NorthCarolinaSlayerStatutes 1. If D dies by slayers hands. Slayer cannot acquire property or get any benefit from D’s estate either through Will or Intestate Succession. the property goes through intestate succession with slayer acting as though he predeceased D. if he was an adult. pretend slayer is dead and give his share to his issue according to NC per stirpes. NCGS §31A-6 . Slayer is deemed to have predeceased (immediately before) D if slayer is deemed to be the slayer of D 1. you treat him as though he predeceased D and the property goes to slayers issue. 2. 1. Convicted of an accessory before the fact 3. 3. Plead nolo contendare (no contest) as a principle 6. 8. Convicted as a principle of the willful and unlawful killing of the decedent 2. 3.ProfessorSolari 2.

6. NCGS §31A-12 . If the slayer is the beneficiary and kills the D’s deaththe part of sharethat wouldhave goneto slayergoesto the decedent’sestateand the slayerholds that sharefor the remainderof his life and thenit to passesto D’s estate.Persons Acquiring from Slayer Protected 1. The half that belongs to D passes through his estate. 4. 3. doesn’t matter that the receipt of a share in an estate is an alien 2. 29-11 1. 5. However.ProfessorSolari 1. Protects purchasers who buy from the seller for adequate consideration. then it is generally per se notice. Alien can inherit real property 3. Referringto 31A-6. If Slayer holds property with D as TE and kills D. NCGS §31A-7: Property Held as Tenants by the Entirety 1. you treat the slayer as having predeceased the slayer. Unless otherwise. Aliens 1. 4. 1. before the slayer’s interests have been adjudicated (found guilty) [and] without notice of the circumstances. They can inherit if there country of residence allows US citizens to inherit from them. NCGS § 31A-11 – Insurance Benefits 1. Slayers portion is kept by him as a LE. then it goes to the decedent’s estate. BUT all consideration received by the slayer must be held in trust for the decedent’s 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. If a person has been charged. 64-4: Escheats 27 . with the remainder passing to D’s heirs or devisees. 64-1: Real Property 1. 64-3: Personal Property 1. If the insurance does not list an alternative beneficiary. no alien. because of his citizenship shall be disqualified from inheriting personal property in NC.DecedentEstatesOutline:Fall 2008.

Regarding person property under 64-3. 28 .ProfessorSolari 1.DecedentEstatesOutline:Fall 2008. If the only heir is a non-resident alien not allowed to take under the statues then it escheats.

29 . 10. then they won’t be valid. 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. 2. NCGS § 31B-3 (c) 1. 3. signed by the renouncer. 2. 64-5: Burden of Proof 1. 1. distribute renounced interest as if the renouncer had predeceased D. The renunciation or written waiver is binding upon the renouncer.DecedentEstatesOutline:Fall 2008. NC Statutes 1. If the decedent or donee of the power state that partial renouncements are not acceptable. 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. written waiver 3. Burden of proof is on person asserting the alien is disqualified to take personal property. If you accept you may be unable to renounce later.ProfessorSolari 5. 2. The right to renounce is barred by: 1. sale of the property. The renunciation may be a portion of any share or limited interest or estate. the refusal to accept property from a decedent 1. transfer of property. Anyone may renounce an intestate gift in whole or in part by filing a written gift. Disclaimer/Renunciation 1. 3. NCGS § 31B-1 1. NCGS § 31B-4: Waiver and Bar 1.

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