Outline – WT&E
Intestacy:
· Defined. The law of intestate distribution governs the distribution of any portion of a person’s probate estate that is not effectively disposed of by Will. 62-2-101.
o Total intestacy = when a person dies without having any valid will.
o Partial intestacy = a person dies w a valid will, but the will does not effectively dispose of all the person’s probate estate.
· Share of the spouse. 62-2-102.
o If there is no issue à surviving spouse gets 100% (the entire) intestate estate.
o If there are surviving issue à surviving spouse gets 50% of the intestate estate.
· Share of heirs other than surviving spouse. 62-2-103.
o This is the General Scheme of Intestate Distribution.
o SC uses a ‘parentalic’ scheme of distribution, whereby heirs are sought first from among the decedent’s spouse and issue. If there are non, then heirs are sought at the first parental level (decedent’s parents) or among the issue of that parental level. Again if there are none, then heirs are sought from among the next parental level (decedent’s grandparents) or among the issue of that parental level. Next is great-grandparents, and last is step-children. The very last is the State (escheat).
o Diligence Search. Remember, you have to find these heirs. Compare to a Will, where heirs are clearly named and identified.
· Requirement that Heir Survive Decedent for 120 hours. 62-2-104.
o For the purposes of intestate succession, to be an heir, one must survive the decedent by 120 hours.
o If one does not survive by 120 hours, one is determined to have predeceased the decedent, for the purposes of intestate succession.
· No taker. 62-2-105.
o If there is no taker, the property escheats to the State of South Carolina.
· Representation; Disclaimer by Intestate Beneficiary. 62-2-106.
o This is the provision for “taking by representation.”
o See Bar/Bri examples.
· Kindred of half-blood. 62-2-107.
o Relatives of ½ blood inherit the same as they would inherit if they were of the whole blood.
· After-born heirs. [a/k/a Posthumous issue]. 62-2-108.
o This is for issue of the decedent conceived before his death but not yet born.
o The issue must be born within 10 months after decedent’s death in order to qualify as an heir.
· Meaning of “child” and related terms. 62-2-109.
o Adopted Children:
§ Generally, an adopted child is related the same as a natural child of the adopting parents for purposes of intestacy law.
§ Under SC law, an adopted child is no longer a child of his or her natural parents for intestacy purposes. The relationship w natural parents is severed and the child is permanently attached the new parents.
o Illegitimate Children:
§ A child born out of wedlock is always a child of the mother for intestacy purposes.
§ However, a child born out of wedlock is a child of the father ONLY if EITHER:
· 1. The parents married before or after the birth of the child, even though the attempted marriage is void [so they thought they were being married]; or
· 2. Paternity is established by adjudication, by “clear and convincing proof,” either before or after the father’s death (if after, then within 8 mos. of death or 6 mos. after appt of PR for father’s estate).
o Parental Rights Terminated
§ A termination of parental rights means that the parent cannot inherit from the child. However, the rights of the child to inherit from or through the parent are not affected.
· Advancements. 62-2-110.
o Definition. An advancement = a lifetime gift made by the decedent to a prospective heir, which is intended to be set off against the amount of any later inheritance by the heir from the donor. It is an “advance” on the heir’s inheritance. If a lifetime gift is deemed to be an advancement, the gift will reduce or eliminate any inheritance received by the heir at decedent’s death.
o Requirements. “If a person dies intestate as to all his estate, property which he gave in his lifetime to an heir is treated as an advancement against the latter’s share of the estate ONLY IF: declared in a contemporaneous writing signed by the decedent or acknowledged in a writing signed by the heir to be an advancement.”
§ If an advancement is explicitly referenced by that term in a Will, then you must assume that the advancement met the requirements to be one.
o Valuation. The property advanced is valued as of the time the heir came into possession or enjoyment of the property OR as of the time of the death of decedent, whichever first occurs.
o Presumption Against Advancement. SC law presumes that an inter vivos gift is not intended to be an advancement. This presumption can be overcome only if: “declared in a contemporaneous writing signed by the decedent or acknowledged in a writing signed by their heir to be an advancement.”
· Debts to Decedent. 62-2-111.
o A debt owed to the decedent is charged against the intestate share of the debtor (but not against the share of any other person except the debtor).
o If the debtor dies before the decedent, then the debt is not taken into account in computing the intestate share of the debtor’s issue.
· Alienage. 62-2-112.
o No person is disqualified to take as an heir bc he (or a person through whom he claims) is an alien, or has been an alien.
· Persons related to decedent through two lines. [a/k/a “Double Heirs] 62-2-113.
o A person who is related to the decedent through two lines of relationship is entitled to only a single share, based on the relationship which would entitle him to the larger share.
· Limitation on parent’s entitlement as intestate heirs to estate proceeds; Failure to provide support for decedent during minority. 62-2-114.
o The probate court may deny or limit a parent’s intestate inheritance if the court determined, by a ‘preponderance of the evidence,’ that one or both parents failed to reasonably provide support for the decedent and did not othe
. 62-2-302.
o If a testator fails to provide in his Will for any of his children born/adopted after the execution of his Will, the omitted child shall receive a share in the estate equal in value to that which he would have received if the testator had died intestate. This is true UNLESS:
§ 1. It appears from the Will that the omission was intentional; or
§ 2. The testator provided for the child “by transfer outside the Will” and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator, from the amount of the transfer, or other evidence.
o Election. The child, and his guardian/conservator acting for him, may claim a “pretermitted child share” by filing w the court and mailing/delivering to the PR of the estate, the claim the later of: 8 mos. after date of death, or 6 mos. after probate of decedent’s Will.
Exempt Property:
· Exempt property. 62-2-401.
o The surviving spouse cannot take all; $5k is untouchable and left to the family.
o This is a small amount, but does protect the family some.
· Source, determination, and documentation. 62-2-402.
o Property specifically devised is not used to satisfy rights to exempt property.
o Property may be selected as exempt property.
· Federal veteran payments shall be exempt from creditors’ claims. 62-2-403.
o All moneys paid by the govt to the heirs, executors, or administrators as compensation is exempt from creditors claims of such deceased veteran.
Wills:
· Who may make a will. 62-2-501.
o “A person who is of sound mind and who is not a minor … may make a Will.”
o Capacity:
§ Notice that this provision gives no definition of the term “sound mind.”
§ Traditionally, however, “sound mind” has been defined to mean that the testator knows:
· 1. Nature + extent of one’s property;
· 2. Persons who are the natural objects of one’s bounty;
· 3. Disposition one is making of one’s property;
· 4. Understanding how the first three elements relate to each other to form an orderly plan of disposition (nature of the act).
§ Minimum competence. Legally, one can be judicially declared “incompetent” and still have “testamentary capacity” AS LONG AS they know that they are there to make a will, what their property is, who will receive, and how it all fits together.
· Lawyer must just take extra precautions, e.g. video tape.
