Requirement That Heir Survive Decedent
In addition to determing who potential heirs might be, certain states have strict survival requirements in order for heirs to inherit their shares of the intestate decedent's estate. I thought I would take this opportunity to discuss more in depth this requirement, and how it typically takes shape.
In many states (including Alaska, California, Texas, Kentucky, Wisconsin, etc.), it is required that the relevant potential heir survive the decedent by at least 120 hours--5 full days-- in order to be considered an heir entitled to inherit (remember heirs are determined at the time of the decedent's death, prior to that time the class of people we think might be heirs are referred to as heirs apparent).
For the purposes of illustration, let's take a closer look at California's interpretation of this requirement. It starts out:
A person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for the purposes of intestate succession, and the heirs are determined accordingly. If it cannot be established by clear and convincing evidencethat a person who would otherwise be an heir has survived the decedent by 120 hours, it is deemed that the person failed to survive for the required period.
The reality of the 120 hour requirement, then, is that if the heir apparent fails to survive the decedent by even 119 hours, then they are not entitled to the share. What this means in practice, is that the share merely passes on to the next relevant heir. So, for example, if the person who fails to survive is the child of the decedent, then their share would merely pass to their children (or issue). The main potential downside is that the heir apparent cannot utilize theirestate plan in determining what they leave to their heirs, or other beneficiaries. In any case, however, the heirs down the line will still be entitled to shares according to their relationship to the decedent.
State's Express Intent to Avoid Escheat
I have discussed as a general matter that states will go to great lengths to ensure that estates do not escheat, or return back to the state. This is the only explanation I can think of to explain why the Probate Code goes to great lengths detailing the order of intestate heirs, which includes predeceased spouse's children, parents, or sibilings.
Additionally, even when it comes to the survival requirement, the state is willing to waive the requirement if it means the potential for escheat:
The requirement of this section that a person who survives the decedent must survive the decedent by 120 hoursdoes not apply ifthe application of the 120-hour survival requirement would result in the escheat of property to the state...
Thus, it can be the case that the failure to survive the decedent by more than even 1 hour is sufficient enough if the only other alternative is the escheat of the property to the state. Therefore, it is more accurate to categorize this type of statute as one that attempts to streamline the process of determining heirs. If there are additional heirs, then the estate will pass to them should the 120 hour survivial requirement not be fulfilled. Absent additional heirs, the buck stops with the heir apparent who failed to survive the decedent by 120 hours.
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