Descent and Distribution

No one is an heir to a living person. Before the death of the ancestor, an expectant heir or distributee has no vested interest but only a mere expectancy or possibility of inheritance. Such an individual cannot on the basis of his or her prospective right maintain an action during the life of the ancestor to cancel a transfer of property made by the ancestor.

Advancements An advancement is similar to an absolute or irrevocable gift of money or real or personal property. It is made in the present by a parent to a child in anticipation of what the child's intestate share will be when the parent dies. An advancement differs from an ordinary gift in that it reduces only the child's distributive share of the parent's estate by the stated amount, while a gift diminishes the entire estate. The doctrine of advancements is based on the theory that a parent is presumed to intend that all his or her children have equal rights not only in what may remain at the parent's death but in all property owned by the parent. Statutes of descent and distribution can provide for consideration of advancements made by a deceased during his or her lifetime to achieve equality in the distribution of the estate among the children.

An advancement can also be made by grandparents and, where statutes permit, by spouses and collateral relatives. A parent's gifts to a child cannot be deemed advancements while the donor is alive, since they are significant only in relation to a decedent's estate. Several statutes provide that no gift or grant of realty can be deemed to have been made as an advancement unless expressed in writing by the donor or acknowledged in writing by the donee. A transfer based on love and affection or a nominal consideration can constitute an advancement, while a transfer for a valuable consideration cannot, since as a gift, an advancement is made without consideration.

Release, Renunciation, or Acceptance of Rights An heir can relinquish his or her rights to an estate by an express waiver, release, or ESTOPPEL. Generally, the release of an expected share, fairly and freely made to an ancestor in consideration of an advancement or for other valuable consideration, excludes the heir from sharing in the ancestor's estate at the time of death. It is necessary that the person executing the release be competent to contract at the time, that the release not be obtained by means of fraud or UNDUE INFLUENCE, and that the instrument or transaction in question be sufficient to constitute a release or renunciation of rights. In one case, a daughter gave her father a receipt acknowledging payment of money that she accepted as her "partial" share of all real estate left by him. The court held that she was not barred from sharing in the remainder of the real estate left upon her father's death, since the word partial indicated that the money received was merely an advancement.

At common law, a person could not renounce an intestate share, but modern statutes permit renunciation. A renunciation or a waiver sometimes requires the execution and delivery of a formal document. Renunciation is frequently employed by those who would incur an increased tax burden if the gift were to be accepted.

A simple acceptance can be either express or implied. A person can be barred from accepting his or her rights to an estate by a lapse of time, as specified by statute. Once a person accepts an intestate share, he or she cannot subsequently renounce the share under most statutes. A person who renounces the succession cannot revoke the renunciation after the other heirs have accepted the property that constitutes his or her share. However, that person can accept his or her share if the other heirs have not yet done so.