If no surviving issue-surviving spouse gets entire estate.

If surviving issue of decendent-spouse gets 1/2

Remaining probate assets after Spouse's share in intestacy

You have to survive decedent by 120 hours/5 days. 

Rule doesnt apply if it would result in an escheat.

PRESUMPTION: if time of death cannot be determined, presumed that person failed to survive for 120 hours. 

PRESUMPTION: when they die simultaneoulsy, we presume Testator survived beneficiary. 

Also applies to Non-Probate Transfers

Child must be:

1) born within 10 months of DOD

2) Must be the Decedent's issue; and 

3) conceived before death. 

Adopted child=natural child.

(adult adoptions and equitable adoptions in outline).

Look at status of child at DOD.

1) attempt marriage (can be just an attempt)

2) actually marry

Intestacy with illegitimate children: General Rule

1) child inherits through mother

2) child can inherit through father if child proves paternity.

1) there must be an adjudication from the court before father's death; or

2) there must be an adjudication after the death of the father, but child must prove by clear and convincing evidence. 

Time limit: 8 months after death; or 6 months after initial appointment of personal rep. for the estate. 

1) openly treat child as his own; and 

2) cannot have refused to support the child. (dead-beat parent statute). If parent failed to reasonably support the child, then the judge can: reduce or eliminate the inheritance. 

Statutory way to make a gift to a child without appointing a conservator or creating a trust. 

Creates a custodial relationship where custodian takes care of property and uses it for the needs of the child. 

Must be given to child when they reach 21.

Gift is irrevocable. 

Applies to: 1) murder and 2) voluntary manslaughter.

Any criminal court conviction is binding on Civil Probate Administration.

Treatment: Slayer predeceases victim.

Applies to Probate and Non-Probate Assets

The victim of the murder-suicide outlives the killer and can take from killer. 

Considered to lived 120 hours after killing. 

1) interest created by intestate succession is disclaimed->beneficiary is not treated as predeceasing decedent for purposes of intestate succession determination.

2) What this means is if you disclaim, you are considered alive when determining the generational level on which to divide estate. 

If heir gets money, third party is entitled to it.

If not, third party gets nothing. 

Total relinquishment of right to inherit due to lifetime transfer

Expectant intestate decedent and expectant heir made a deal with consideration

Enforced in equity, not law. 

Expectant heir receives some lifetime transfer from intestate decedent and intends to offset some transfer. Must equalize at intestate decedent's death. 

Requires a writing to show intent by giver of gift and receiver. 

Take value of lifetime advancement and add it to the lifetime estate. Then equalize what all kids take. 

This can be waived. 

1) Testator knows the nature and extent of his property (what you own); 

2) Knows the persons who are the natural objects of his bounty (people testator would want to leave property to); and 

3) knows the disposition he is making (what a will does). 

Court presumes that testator has mental capacity

Burden falls on contestant of the will. 

In SC, once you prove that testator suffered from chronic incapacity, Burden shifts to proponents of the will to prove that the will made during a lucid period. 

1) Testator was susceptible to undue influence (mental or physical capacity issues).

2) There was an influencer with:

a. opportunity to influence and

(i.e. confidential, sexual, business relationship, attorney, etc)

b.inclination to influence

3) will was the result of the influence (causation). 

PRESUMPTION: if you have 1&2 then you can causation

Provision that states if a beneficiary contests the will, that the beneficiary will:

1) not take under the will; or

2) take a nominal amount.

Generally, we do not rectify a mistake by refusing to probate .

At probate stage, the issue of mistake is an evidentiary issue. 

Mistaken as to:

1) contents of the document; or 

2) the document itself 

Misunderstanding of a premise of making the Will.

Probably wont allow extrinsic evidence. 

Wills: Strict Compliance Test

Applied after June 27, 1984

1) a writing;

2) Testator must:

a. sign the will or

b. have it signed in his name by proxy at his direction

3) 2 Competent witnesses attest and sign

Must:

See the signing; or

hear acknowledgment of the signature; or

hear acknowledgment of the will. 

Line of sight test: 

Witnesses must be able to see or in a position to see if they wanted. 

Purging statute

The gift is null and void to the extent of the excess interested witness would receive. 

A will that is in Testator's handwriting and signed by the testator without 2 witnesses. 

SC does allow but will recognize if another state does. 

1) Intent to revoke and 

2) physical act or new will

Revokes entire previous will.

If inconsistencies, then newest will is controlling.

Can revoke with new will that says" I revoke my previous will"

Testator needs:

1) intent to revoke; and 

2) Testamentary capacity; and

3) Valid writing; and

4) complete the act to revoke. 

Codicil: Supplemental document executed with testamentary formalities (same as will), which amends a prior will by revoking to extent of the amendments made. 

PRESUMPTION: Where will 2 doesnt make complete disposition (ie no resid clause) of Testator's estate then it is a codicil. 

The date of a properly executed codicil changes the date of the will to the date the codicil was executed. 

Slightest action of burning, tearing, cancelling, obliterating, or destroying and

intent to revoke