Wills, Trusts & Estates
Fall 2006
Dean Gershon
I. WHO TAKES DECEDENT’S PROPERTY: AN OVERVIEW
· Must ask whether the property is in probate or non probate.
· Who takes the property depends on whether the decedent had a valid last will and testament.
o If no will, the property passes via intestacy to the decedent’s heirs.
II. INTESTACY: Die w/o a valid will
SECTION 62-2-101. Intestate estate.
Any part of the estate of a decedent not effectively disposed of by his will passes to his heirs as prescribed in the following sections of this Code.
HEIRS V HEIRS APPARENT
Heir: the heir must survive the decedent
Heir Apparent: A person who is alive has no heirs but only heirs apparent.
I. SECTION 62-2-101. Intestate estate:
Any part of the estate of a decedent not effectively disposed of by his will passes to his heirs as prescribed in the following sections of this Code.
II. SECTION 62-2-102. Share of the spouse.
The intestate share of the surviving spouse is:
(1) if there is no surviving issue of the decedent, the entire intestate estate;
(2) if there are surviving issue, one-half of the intestate estate.
· If this fails, as well as trying to give the estate all of these fail, then the intestate estate passes to the state.
· Issue is lineal descendant of the decedent; includes adoptive children
· If decedent has spouse or issue, then NO ONE ELSE WILL TAKE
· If relative fits into 2 categories, treat them as the closest
III. SHARES OF SURVIVING SPOUSE
The spouse has a priority right of the property over the children.
If there ARE issue, then spouse in SC get ½.
However, it may be better to list a price because ½ may not be enough to live on.
If there are NO issue, then spouse gets the entire intestate estate
Domestic Partners: Not recognized as a spouse in SC
can’t disinherit a spouse – she has an elective share
Simultaneous Death:
SECTION 62-1-502. Disposition of property when persons die simultaneously.
When the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as provided otherwise in this part [Sections 62-1-501 et seq.].
SECTION 62-1-503. Successive beneficiaries of disposition of property.
When two or more beneficiaries are designated to take successively by reason of survivorship under another person’s disposition of property and there is no sufficient evidence that these beneficiaries have died otherwise than simultaneously, the property thus disposed of shall be divided into as many equal portions as there are successive beneficiaries and these portions shall be distributed respectively to those who would have taken in the event that each designated beneficiary had survived.
A person succeeds to the property of a decedent only if the person survives the decedent for an instant in time.
· With simultaneous death, have to show evidence that they did not die simultaneous.
· SC has a 120-hour rule, and the burden is to prove they did survive 120 hours.
Presumption against survivorship; if it’s close, we’ll presume that she didn’t survive
SECTION 62-2-104. Requirement that heir survive decedent for one hundred twenty hours.
Any person who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent for purposes of Section 62-2-401 and intestate succession, and the decedent’s heirs are determined accordingly. If the time of death of the decedent or of the person who would otherwise be an heir, or the times of death of both, cannot be determined, and it cannot be established that the person who would otherwise be an heir has survived the decedent by one hundred twenty hours, it is deemed that the person failed to survive for the required period. This section is not to be applied where its application would result in a taking of the intestate estate by the State under Section 62-1-105.
Uniform Simultaneous Death Act: Provided that if there is no sufficient evidence of the order of deaths, the beneficiary is deemed to have predeceased the donor. Thus, neither inherits from the other.
Also, if two joint tenants, A & B, die simultaneously, 1/2 of the property is distributed as if A survived and ½ is distributed as if B survived.
In other words, if joint tenants die simultaneously the property never passes so, 1/2 of property is distributed as if one person survived and 1/2 is distributed as if the other person survived.
Under uniform simultaneous death act, the burden is to show they did not survive.
SECTION 62-1-504. Joint tenants or tenants by the entirety.
When there is no sufficient evidence that two joint tenants or tenants by the entirety have died otherwise than simultaneously, the property so held shall be distributed one half as if one had survived and one half as if the other had survived. If there are more than two joint tenants and all of them have so died, the property shall be so distributed in the proportion that one bears to the whole number of joint tenants.
· Janus v Tarazewicz (p. 68) We had a double death in close time frame- not simultaneously. Her parents got the property because she survived. Survivorship is very important in these cases. The burden is on that person claiming survivorship, which is really their heirs and survived by 120 hours (ex. hold off on pulling the plug – Code § 2-104).
SECTION 62-1-505. Insured and beneficiary.
When the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.
· Life insurance-if the insured and beneficiary die simultaneously the proceeds are distributed as if the insured survived the beneficiary.
· If you have children, then the insurance money will be distributed to them. If no children, will go to the parents.
· Typically creditors are not allowed to take life insurance money. Creditors have no reliance on life insurance money.
IV. SHARES OF DESCENDANTS
III. SECTION 62-2-103. Share of heirs other than surviving spouse.
The part of the intestate estate not passing to the surviving spouse under Section 62-2-102, or the entire estate if there is no surviving spouse, passes as follows:
(1) to the issue of the decedent: if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree then those of more remote degree take by representation;
(2) if there is no surviving issue, to his parent or parents equally;
(3) if there is no surviving issue or parent, to the issue of the parents or either of them by representation;
(4) if there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of the
ive Disinheritance:
It is an express statement in their will that disinherits a child
You cannot disinherit through intestate. Do not mention about how you do not want $ to go towards X—just leave them out. Give all other assets to other heirs.
You can also give a nominal amt to limit recourse by giving $100, etc.
Leaving a nominal amount to the child leaves them very little recourse to the will, and it also shows the intent to not leave them anything else.
Anything that does not pass through the will goes to intestacy.
V. SHARES OF ANCESTORS AND COLLATERALS
Three Methods: (p.79)
Collateral Kindred: Applicable persons who are related by blood to the decedent but who are not descendants or ancestors
The decedent’s parents and their other issue are called first line collaterals
Grandparents and their issue are second line
Great-grandparents and their issue are third, etc.
Parentelic approach: Every intestate starts w/the descendents immediate family and then moves out along collateral lines starting w/the closer lines and moving to the more remote. It continues until there are no live takers.
Degree of Relationship Approach: one simply counts the degrees of relationship b/w the decedent and the relative, and those relatives of the closest degree (lower degree) take to the exclusion of those of a more remote degree (higher degree).
To determine the degree, count from the decedent up to the closest common ancestor (the head of the parentelic line- a grandparents or great-grandparent and so on)
You will only use the Parentelic and Degree of Relationship approach if you have no children.
We use the Parentelic Approach in SC. Look on p. 79
SECTION 62-2-106. Representation; disclaimer by intestate beneficiary.
If representation is called for by this Code, the estate is divided into as many equal shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left issue who survive the decedent, each surviving heir in the nearest degree receiving one share and the share of each deceased person in the same degree being divided among his issue in the same manner. If an interest created by intestate succession is disclaimed, the beneficiary is not treated as having predeceased the decedent for purposes of determining the generation at which the division of the estate is to be made.
Half Bloods:
Relatives who share only one common parent as opposed to the traditional relationship where siblings share both parents.
In SC, Half-bloods are not treated differently, they are treated as whole siblings if the estate has to be divided among siblings.
Lineals are never half-bloods.
You are only concerned with half-bloods when you get to collateral heirs. (Heirs that are not your issue, they are your parents, their issues, your grandparents & their issues, etc.)
Some jurisdictions → half-bloods get ½ share
