11. Wills & Estates

Question 1

Who is the decedent?

Answer 1

Someone who has died

Question 2

What is a will?

Answer 2

A legal document used to dispose of the decedent’s property

Question 3

What does testate mean?

Answer 3

The decedent dies with a will

Question 4

What does intestate mean?

Answer 4

The decedent dies without a will

Question 5

What is a codicil?

Answer 5

A supplement that either amends or revokes a decedent’s will in whole or in part

Question 6

What is probate?

Answer 6

The judicial process for administering and settling a decedent’s estate

Question 7

What is intestate succession?

Answer 7

A default estate plan, developed by the legislature, for distributing property when the decedent dies intestate

Question 8

What is an heir?

Answer 8

An individual or individuals entitle to receive property by intestate succession

Question 9

T or F: Living people have heirs

Answer 9

False

Question 10

Who is the spouse?

Answer 10

Decedent’s marital partner

Question 11

Who are the issue or descendants?

Answer 11

Decedent’s lineal line (kids, their kids, etc.)

Question 12

Who are the ancestors?

Answer 12

Decedent’s parental line

Question 13

Who are collaterals?

Answer 13

Decedent’s relatives through an ancestor (i.e., siblings, cousins, aunts, uncles, etc.)

Question 14

What is intestacy?

Answer 14

A default estate plan developed by the legislature where the decedent’s actual intent is irrelevant

Question 15

Who are the individuals entitle to take an intestate share?

Answer 15

Heirs

Question 16

Who are we usually most interested in when someone dies?

Answer 16

The decedent’s spouse and children

Question 17

What must an individual do to take from a decedent?

Answer 17

Survive the decedent

Question 18

What is the Uniform Simultaneous Death Act?

Answer 18

The USDA controls the situation where the decedent and heir die at the same time. If there is insufficient evidence to determine who survived whom, the property will pass as though each had predeceased the other.

Question 19

Under the USDA, how may an heir take from a decedent in the event of simultaneous death?

Answer 19

120 = The heir must be proved by clear and convincing evidence to have survived the decedent by 120 hours

Question 20

Who qualifies as a spouse?

Answer 20

A legally-married partner

Question 21

Who is NOT a spouse?

Answer 21

An unmarried cohabitant

Question 22

Assuming a surviving spouse, what happens if a decedent is survived by descendants who are also descendants of surviving spouse, and the surviving spouse has no other descendants?

Answer 22

Case 1: Spouse + Shared Descendants

Surviving spouse takes the entire estate

Question 23

Assuming a surviving spouse, what happens if a decedent is survived by a parent but no descendant?

Answer 23

Case 2: Spouse + Parent

Surviving spouse takes:
- $300,000 AND
- 75% of the remainder of the estate

Parent takes:
- 25% of the remainder estate

Question 24

Assuming a surviving spouse, what happens if a decedent is survived by descendants who are also descendants of the surviving spouse, and the spouse has other issue?

Answer 24

Case 3: Spouse + Shared Descendants + Spouse’s Descendants

Surviving spouse takes:
- $225,000 AND
- 50% of the remaining property

Question 25

Assuming a surviving spouse, what happens if a decedent is survived by issue not related to the surviving spouse?

Answer 25

Case 4: Spouse + Non-Spousal Descendants

Surviving spouse takes:
- $150,000 AND
- 50% of the remaining property

Question 26

Assuming a surviving spouse, what happens if a decedent is survived by only their spouse (no descendants or parents)

Answer 26

Case 5: Spouse

Surviving spouse takes the entire estate

Question 27

What happens if a decedent dies without heirs?

Answer 27

The property will escheat to the state

Question 28

Who qualifies as issue?

Answer 28

Decedent’s lineal line (i.e., children, grandchildren, etc.)

NOTE: There MUST be a parent-child relationship

Question 29

Who is a posthumously born child?

Answer 29

A child that is conceived before, but is born after, the death of the mother’s husband

Question 30

When will a posthumously born child be presumed to be the child of the mother’s husband?

Answer 30

If the child is born within 280 days of the husband’s death (rebuttable presumption), then the child will inherit from the husband as if the child was born before the husband died

Question 31

What happens if a child is born more than 280 days after the mother’s husband’s death?

Answer 31

The child will have to prove parentage in order to inherit from the husband

Question 32

What affect does the Uniform Parentage Act (UPA) have on posthumously born children?

Answer 32

Increases the rebuttable presumption period from 280 to 300 days

Question 33

How does per stirpes representation work?

Answer 33

1) Divide shares into the total number of children who survive or leave issue who survive
2) Divide by representation

Question 34

How does per capita representation work?

Answer 34

1) Divide the property equally at the first generation where a member survives the decedent
2) Divide by representation

Question 35

What is the default method of representation under the UPC?

Answer 35

Per capita at each generation

Question 36

How does per capita at each generation work?

Answer 36

1) Divide property into equal shares at the first generation where there is a surviving member
2) Instead of passing a deceased member’s share by representation, pool the remaining shares after each generation
3) Pooled shares are divided equally at the next generation