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BAR EXAM ;Wills : INTESTACY
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I. Intestacy Defined a. Total Intestacy: occurs when a person dies without having any valid will b. Partial Intestacy: occurs when a person dies having a valid will, but the will does not effectively dispose of all of the person’s probate estate. II. General Scheme of Intestate Distribution ...

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  • April 10, 2024
  • 15
  • 2023/2024
  • Exam (elaborations)
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  • bar exam wills intestacy

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  • BAR PREPARATION
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Wills 2023
INTESTACY

I. Intestacy Defined
a. Total Intestacy: occurs when a person dies without having any valid will
b. Partial Intestacy: occurs when a person dies having a valid will, but the will does not effectively dispose of all of the
person’s probate estate.
II. General Scheme of Intestate Distribution
a. Spouse and Issue of Decedent: take the entire estate
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i. Surviving spouse, no issue → 100% of estate
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ii. Surviving issue, no spouse → divide 100% of the estate by representation
iii. Surviving spouse and surviving issue → spouse takes 50%, surviving issue divide 50% of the estate by
representation
b. Parents or Issue of Parents of Decedent: heirs only if no spouse or issue survives the decedent
i. Both parents survive the decedent → divide 100% of estate equally
ii. Only one parent survives decedent → surviving parent takes 100% of estate
iii. If neither parent survives the decedent → estate goes to the issue of either parent by representation
c. Grandparents or Issue of Grandparents of Decedent: can take only if no parents or issue of parents survived the
decedent
i. One or more grandparent on both sides of family survives → 50% to maternal grandparents, 50% to paternal
grandparents; split evenly between each grandparent
ii. Surviving grandparents only on one side → surviving use of the deceased grandparents split 50% by
representation, surviving grandparents take 50%, which they split equally
iii. No grandparents, but issue on either side → surviving issue on each side take 50% of the estate by
representation.
iv. No grandparents or issue of those grandparents are alive on one side of the family, but either grandparents
or issue of grandparents on other side survived the decedent → 100% of estate passes to surviving issue,
who split by representation
d. Great Grandparents or Issue of Great-Grandparents of Decedent: only take if no grandparents or issue of
grandparents.
i. If any of the four great-grandparents are alive on one side of the family, those who are alive share 50% of the
decedent’s estate. Other 50% will be distributed to the other side of the family, if any are still living.
e. Step-Children of the Decedent: take only if no one in the prior 4 groups are still living.
i. The spouse of the parent of the step-child must also be dead.
f. Escheat: if no person described above who survives the intestate, then the estate passes to the State of South Carolina
i. Regulated by statute.
III. Representation (Taking by Representation)
a. At the first generation at which there is a surviving member, the estate is divided into as many shares as there are:
i. Living members of that generation; plus
ii. Deceased members of that generation with surviving issue.
b. Each living member of that generation takes a share, and the share of each member who is deceased with surviving
issue passes to those issue by representation
c. ** Similar to per stirpes, except that division occurs only at a generation in which there is a living member. **
IV. Disclaimer
a. Heir or devisee may disclaim any interest in the decedent’s estate.
b. Heir is treated as having predeceased the decedent for most purposes of distributing the estate.
i. The person disclaiming is not treated as being predeceased for purposes of determining at which generation
to make a division of the estate.
c. Cannot be revoked simply because the party seeking the disclaimer realizes the action will have unintended legal
consequences.
V. Children
a. Adopted Children

, Wills 2023
i. Treated the same as a natural child of the adoptive parents
ii. Adopted children are no longer the children of their natural parents for intestacy purposes.
iii. Adoption of a child by the spouse of one of the child’s natural parents does not prevent the child from
inheriting from that natural parent.
iv. A person who is an adult when adopted normally cannot inherit as a child unless the adoption order
specifically provides otherwise.
b. Illegitimate Children
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i. Child born out of wedlock is always a child of the mother for intestacy purposes
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ii. Child born out of wedlock is only a child of the father if ether:
1. The natural parents participated in a marriage ceremony before or after the birth of the child, even
though the attempted marriage is void; or
2. Paternity is established by adjudication
a. Adjudication may occur before or after the father’s death
i. If after, must be commenced not later than the later of:
1. 8 months after the father’s death; or
2. 6 months after appointment of a personal representative to the father’s
estate.
b. If paternity is established after the father’s death, the standard of proof is clear and
convincing evidence.
iii. A prior divorce decree, in which the issue of paternity had been decided, is an adequate adjudication of
paternity to allow a later intestate claim by an illegitimate child.
iv. A father (or his kindred) cannot inherit from or through a child unless the father has openly treated the child
as his and has not refused to support the child
v. A father’s failure to support the child does not affect the child’s ability to inherit from or through the father.
c. Parental Rights Terminated
i. Prevents the parent (or their kindred) from inheriting from the child
ii. Does not affect the child’s (or their kindred) right to inherit from or through the parent.
VI. Advancements: 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.
a. Lifetime gift can only be deemed an advancement if the decedent died in total intestacy
b. South Carolina has a rebuttable presumption that a lifetime gift is not intended to be an advancement
i. Overcome the presumption by a writing declaring that the gift is intended to be an advancement
ii. Writing may be contemporaneous signed by the decedent or the heir acknowledging the gift to be an
advancement.
c. Calculation of Inheritance Share if an Advancement is Made
i. Add the amount of the advancement to the amount of the actual probate estate.
ii. Calculate the intestate share to which the recipient would have been entitled had the advancement not been
made.
1. If the advancement value is greater than the intestate share, the recipient keeps advancement and
does not take in intestacy
2. If the advancement value is less than the intestate share, the recipient will receive the amount of the
difference from the donor’s probate estate.
iii. Advancement 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 the decedent, whichever first occurs.
VII. 120 Hour Survivorship Requirement: must survive the decedent by 120 hours to be eligible to take.
VIII. Simultaneous Death Act
a. If survivorship determines the distribution of property other than by intestacy, follow the Uniform Simultaneous
Death Act
i. Property of each person dying simultaneously is distributed as if that person had survived.
ii. If all joint tenants with right of survivorship die simultaneously, the joint tenancy property is divided into as
many shares as there were joint tenants and the estate of each receives a share.

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