Wills, Trusts, and Estates

Intestacy


To die intestate means to die without a will. This is the opposite of testacy.

Partial Intestacy

Partial intestacy is when one dies with a will only disposing of part of his property.

Generally, the law of the state where a decedent was domiciled at death governs.

Heir

An heir is one "who is entitled under the statutes of intestate succession to the property of a decedent." UPC § 1-201(20).

No living person has heirs, only heirs apparent. Heirs apparent have a mere expectancy that is both contingent on their surviving longer and on the property not being otherwise disposed of.

  • When named in a will, heirs apparent are called devisees, legatees, or beneficiaries. This is still contingent upon the same conditions however and does not guarantee that they will inherit anything though until the testator actually dies.

Expectancies are not legal interests and cannot be legally transferred, however purported transfers may be enforced for equity's sake.

Rules for Heirs

In every state, the spouse is first, then descendants take to the exclusion of ancestors and collateral kindred. (Dead childrens' wills do not apply. In-laws get nothing.)

  • Surviving Spouse
    • No Descendants or Parents
      • In the UPC, the spouse gets everything. UPC § 2-102(1)(A).
      • In Virginia, the spouse gets everything. VA Code § 64.2-200(A)(1).
    • And Descendants
      • Both Are Parents
        • In the UPC, the spouse gets everything. UPC § 2-102(1)(B).
        • In Virginia, the spouse gets everything. VA Code § 64.2-200(A)(1).
      • All Descendants Are with Spouse, Who Has Other Kids (Cinderella problem)
        • In the UPC, the spouse gets $225,000 first, then the rest is split 50/50 between the spouse and the descendants. UPC § 2-102(3).
        • In Virginia, two-thirds goes to the children and one-third to the spouse. VA Code § 64.2-200(A)(1).
      • Decedent Has Other Kids
        • In the UPC, the spouse gets $150,000 first, then the rest is split 50/50 between the spouse and the descendants. UPC § 2-102(4).
        • In Virginia, two-thirds goes to the children and one-third to the spouse. VA Code § 64.2-200(A)(1).
    • No Descendants But Parents
      • In the UPC, the spouse gets $300,000 first, then the spouse gets three-fourths and the parent gets one-fourth. UPC § 2-102(2).
      • In Virginia, the spouse gets everything. VA Code § 64.2-200(A)(1).
  • Then to children
  • Then to parents
  • Then to first-line collaterals (siblings/nephews/nieces)
  • Then to grandparents/uncles/aunts/cousins
    • Parentelic System

      To distribute property when there are no first-line collaterals, most states use a parentelic system. This includes Virginia. VA Code § 64.2-200(A)(5)(e).

      A parentelic system looks up generations of ancestors until there is a living descendant in that parentela, or line. (i.e., look at the grandparents, then the great-grandparents, etc. until you find someone with a living descendant, then split all the amount among his descendants only.)

      E.g, a first cousin would be chosen over a great-grandparent because a first cousin is a descendant of a grandparent, which is a closer parentela.

    • Degree-of-Relationship System

      To distribute property when there are no first-line collaterals, a minority of states use a degree-of-relationship system.

      Under a degree-of-relationship system, the estate goes to the relative with the fewest degrees of relationship.

      E.g, a great-grandparent would be chosen over a first cousin because a great-grandparent only requires 3 degrees of relationship (all up), while a first cousin requires 4 (2 up and 2 down).

      Degree of Relationship

      Degree of relationship is a method of measuring how related people are by counting the number of parental links that must be traversed, up or down, to reach someone.

      Examples
      • Parents – 1
      • Siblings – 2 (up to parent, then down to sibling)
      • Grandparents – 2 (up to parent, then up to grandparent)
      • Uncles/Aunts – 3 (up to parent, then up to grandparent, then down to uncle/aunt)
      • First Cousins – 4 (up to parent, then up to grandparent, then down to uncle/aunt, then down to cousin)
      • Great-grandparents – 3 (up to parent, then up to grandparent, then up to great-grandparent)
      • First Cousins Once Removed (either direction) – 5
      • Second Cousins – 6
      • Fifth Cousins Twice Removed (either direction) – 12

      There are variations on this, such as using degree of relationship but breaking ties with a parentelic system.

  • Then to stepchildren (in the UPC – UPC § 2-103(b)(1) (and mayyybe Virginia?))
  • Then to the state

Intestacy favors only spouses and blood relatives.

Simultaneous Death

Because of the Uniform Simultaneous Death Act, if two people die simultaneously, neither inherits from the other.

  • One who fails to survive by 5 days is deemed to have predeceased the decedent.

Dead Children

Representation
English Per Stirpes

Under the English Per Stirpes system, shares are divided equally to children, then if dead, divided again to their children. Thus, grandchildren with fewer siblings get more money.

English Per Stirpes has vertical equality—bloodlines get equal amounts.

Modern Per Stirpes

Under the Modern Per Stirpes system, shares are divided equally to children, but if all children are dead, the property is divided among grandchildren. Thus, all grandchildren get the same amount if all the children are dead. If some children survive, it is the same as English Per Stirpes.

Modern Per Stirpes applies the same with grandchildren and great-grandchildren. The division does not occur until the first generation with a live taker.

Modern Per Stirpes has horizontal equality—children/grandchildren get equal amounts—whenever all children are dead.

Virginia uses Modern Per Stirpes. VA Code § 64.2-202.

Per Capita at Each Generation

Under the Per Capita at Each Generation system, shares are divided equally to children, then if one or more are dead, the reminder is divided again to the grandchildren. Thus, all grandchildren always get the same amount.

Per Capita at Each Generation has horizontal equality—children/grandchildren get equal amounts—always.

The UPC uses Per Capita at Each Generation. UPC § 2-103(a).

Descendants' surviving spouses (i.e., children-in-law) never get anything in most jurisdictions.

Half-Blood

Under UPC § 2-107, half-blood relatives are treated the exact same as whole-blood relatives.

In Virginia, half-blood relatives get half as much of a share as a whole-blood relative would. VA Code § 64.2-202.

Disinherit
Negative Will

A negative will is where one specifically says that someone does not get something. This enables easy disinheritance.

Historically, negative wills were not allowed. To disinherit someone, it was necessary to specifically give away all of your property to others. Anything not given away in a will was able to be contested by the attempted-disinheritee. Now however, both the UPC and Virginia allow negative wills.

Adoption

Adopted children are the children of the person/people who adopted them, not their biological parents. (Unless adopted by the spouse of a biological parent—that doesn't stop them from being children of their biological parents too.) UPC § 2-118, UPC § 2-119, VA Code § 64.2-102.

Typically no statutory distinction is made between child and adult adoptions, but wills commonly have language excluding adult adoptees.

  • Also, UPC § 3-705 excludes adult adoptees from someone other than the adoptive parent unless the adoptive parent actually "functioned as a parent of the adoptee" before he turned 18.
    • Or it used to exclude them entirely (from class gifts?) unless the adoptee lived with the adoptive parent as a minor?
Equitable Adoption

Most states recognize equitable adoption to imply an adoption when people raise a child as their own.

Posthumous Child

Children born after their fathers die are treated as being alive since conception. VA Code § 64.2-204, UPC § 2-106.

Nonmarital Child

Though historically a child born out of wedlock could not inherit from either parent, all states now allow nonmarital children to inherit from their mothers, and most from their fathers.

Under UPC § 2-705(e), a nonmarital child counts as child of his father if the father "functioned as a parent of the child before the child reached [18] years of age."

Under VA Code § 64.2-102, a nonmarital child counts as child of his father if [t]he biological parents participated in a marriage ceremony before or after the birth of the child or [p]aternity is established by clear and convincing evidence, including scientifically reliable genetic testing, as set forth in § 64.2-103. VA Code § 64.2-102(3).

  • However, this does not allow inheritance to pass back up from the child to the father and his family unless the father has openly treated the child as his and has not refused to support the child. VA Code § 64.2-102(3)(b).
Posthumously Conceived Child

A posthumously conceived child is one conceived through artificial insemination after his father's death by means of sperm he had frozen during his life.

Under UPC § 2-705, posthumously conceived children can inherit if the distribution date is the date of the parent's death, the child was conceived with 36 months or born with 45 months of the death, and the decedent consented to posthumous conception, proven by a signed writing or other clear and convincing evidence.

Under VA Code § 64.2-204, posthumously conceived children inherit as normal children.

Surrogate

A surrogate mother is one who agrees to carry and birth a baby for others. The baby may or may not be genetically related to the surrogate.

UPC § 2-121 provides that surrogates do not have a parent-child relationship with their child unless no one else does. The intended parents do if they functioned as parents within two years of the child's birth.

If there are no surviving relatives when one dies intestate, the property escheats.

Advancement

Advancements are lifetime gifts of any property to one's children that are advanced payments of their intestate shares. (i.e., paying your kids their share of the inheritance early.

At common law, all gifts were presumed to be advancements unless it was established that they were not intended to be counted against inheritance.

Hotchpot

Hotchpot is the theoretical estate that one would have if he had not given away advancements. (I.e., add the advancements into the estate.)

To calculate the distributions with hotchpot, just distribute the theoretical hotchpot and then subtract out the advancements already received from people's shares.

Many states no longer assume lifetime gifts are advancements. Some states and UPC § 2-109(a) even require an advancement to be made in writing and signed by the parent.

Guardian

A guardian is the person responsible for a minor's custody and care.

Wills uniquely allow people to designate guardians for their kids in the event they die.

You likely want to designate a couple and require that they both still be alive and married.

Guardianship comprises both guardianship of the person and guardianship of the estate.

Bar

Several things bar people from succession.

Slayer Rule

The slayer rule bars people from inheriting from people they killed.

UPC § 2-803 provides that slayers are treated as having disclaimed the property.

Disclaim

Anyone can disclaim his inheritance if he really wants to.

Under UPC § 2-1106, a disclaimant is treated as having "died immediately before" the victim.