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7/30/2019 Decedent Estates Outline
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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)
1/3 undivided interest asTC
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)
1/2 undivided interest asTC
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.