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Wills • Intestate Succession
WILLS#047
Legal Definition
Like satisfaction in wills, advancement is an inter vivos down payment made by an intestate to an heir apparent. It is shown by a contemporaneous writing or if the heir acknowledges at any time. If the heir apparent predeceases, the issue is not treated as having received the advancement.
Plain English Explanation
The whole point of intestacy laws are to provide default rules that the state will follow in order to try to disperse a dead person's property as reasonably fairly as possible when the dead person failed to provide guidance (like via a will). However, it isn't always "all or nothing." Sometimes people choose to divide up a portion of their estate and give it to others ahead of time, before they die. When this happens, the state won't then allow the beneficiary to double-dip and receive another piece of the estate through intestacy laws as long as either (a) the dead person created a written receipt when they gave away their property stating that it counted as their inheritance, or (b) the person receiving the property acknowledges that it is their inheritance and they don't get anything else.
Note that if the person who received the property dies first, their children aren't penalized and can still receive stuff via intestacy laws.
Note that if the person who received the property dies first, their children aren't penalized and can still receive stuff via intestacy laws.
Hypothetical
Hypo 1: Bob has a son, Timmy. Before Bob dies, Bob gives Timmy $1,000. Bob dies the next day without leaving a will. Result: Under most intestacy laws, Timmy will receive some additional amount of Bob's estate.
Hypo 2: Bob has a son, Timmy. Before Bob dies, Bob gives Timmy $1,000 and writes a note that says, "This is an advance on your inheritance." Bob dies the next day. Result: When Timmy receives his portion of Bob's estate under intestate succession, the value will be reduced by $1,000 since Timmy already got that paid ahead of time.
Hypo 3: Bob has a son, Timmy. Before Bob dies, Bob gives Timmy $1,000 as an advance on his inheritance. The next day, Bob dies. When Timmy finds out, he cries and says, "I am so grateful he gave me an advance on my inheritance of $1,000. Result: Timmy has acknowledged that the $1,000 was an advance, so it will be deducted from whatever amount he would otherwise receive from the intestate succession.
Hypo 2: Bob has a son, Timmy. Before Bob dies, Bob gives Timmy $1,000 and writes a note that says, "This is an advance on your inheritance." Bob dies the next day. Result: When Timmy receives his portion of Bob's estate under intestate succession, the value will be reduced by $1,000 since Timmy already got that paid ahead of time.
Hypo 3: Bob has a son, Timmy. Before Bob dies, Bob gives Timmy $1,000 as an advance on his inheritance. The next day, Bob dies. When Timmy finds out, he cries and says, "I am so grateful he gave me an advance on my inheritance of $1,000. Result: Timmy has acknowledged that the $1,000 was an advance, so it will be deducted from whatever amount he would otherwise receive from the intestate succession.
Related Concepts
How is property distributed where a decedent has no surviving spouse?
In California, what is the result of a pretermitted spouse?
In California, what is the result of intestate succession for a surviving spouse?
What is intestate succession?
What is per capita by right of representation?
What is per stirpes?
What is the result of a pretermitted child?
