6. Intestate Succession

Question 1

What triggers intestate succession (non probate)?

Answer 1

T dies without will

T’s will is denied probate

Gift fails + NO residuary clause

Question 2

What is the order of intestate distribution?

Answer 2

1) Surviving spouse
2) Issues
3) Parents
4) Siblings + Siblings’ Issues
5) Grandparents
6) Nearest kin
7) State

Question 3

What is surviving spouse entitled to?

Answer 3

Surviving issues

• 1/2 or 1/3 estate (most states)
• $X + 1/2 or 1/3 estate (some states)
• Entire estate (surviving issues are T + Spouse’s issues only) (UPC)

NO surviving issues
- Entire estate (most states)

Question 4

What are surviving issues entitled to?

Answer 4

Per stirpes distribution (Common law) (Few states)

• Issues take equal shares
• Deceased issues’ issues individually take equal shares

Per capita with representation (most states)

• Issues take equal shares
• Deceased issues’ issues altogether take equal shares

Question 5

What are issues’ surviving descendants entitled to?

Answer 5

Per stirpes distribution (Common law) (Few states)

• Deceased issues with issues take equal shares (NOT deceased issues without issues)
• Deceased issues’ issues individually take equal shares

Per capita with representation (most states)
- Deceased issues’ issues altogether take equal shares

Question 6

When can adopted children inherit from natural parents?

Answer 6

T’s will shows intent for inheritance (most states)

Natural parent marries adopted parent

Adopted parent is natural parent’s close relative (few states)

Question 7

When can non-marital children inherit from fathers?

Answer 7

Father married mother after birth

Adjudicated as father (paternity suit)

Proved as father after death + during probate proceedings

Question 8

Are half-blood children entitled to inherit from parents?

Answer 8

Equal inheritance (UPC + most states)

Question 9

What are advancements?

Answer 9

Testator makes lifetime gift to heir

• Presumed advancement (common law)
• T’s intent to make advancement (most states)
• T’s contemporaneous writing at time of giving gift/Heir’s written acknowledgment after receiving gift (UPC)

If heir predeceases T => Binding upon heir’s successors (in writing (UPC))

Question 10

What is an heir entitled to if he receives an advancement?

Answer 10

1) Gift’s value is added to T’s estate

2) Heir is entitled to [Equal share of Estate] less [gift value]