CALI - Intestate Succession

Question 1

Roger died intestate survived by his wife, Ann, and by their one child, Mark. The value of the probate estate available for distribution is $240,000.

How should Roger’s estate be distributed?

Answer 1

$240,000 to Ann; nothing to Mark.

U.P.C. section 2-102(1) provides that, if all the decedent’s surviving issue are also issue of the surviving spouse, the surviving spouse takes the entire estate. This reflects what most testators do in disposing of their estates even when there are surviving children.

Question 2

Would it have made a difference in the distribution if Roger’s estate had been valued at $20,000,000 instead of $240,000?

Answer 2

No.

While one might suppose that, in an estate of $20,000,000, Roger might have made some distribution to Mark, the U.P.C. draws no distinction between a small estate and a large one. In defense of the U.P.C., most intestate estates are smaller estates since persons who have greater wealth tend to plan their estates to minimize federal estate tax and state inheritance tax.

Question 3

Suppose that, in the foregoing question, Mark was Roger’s son by a prior marriage and the value of the estate was $240,000.

How should Roger’s estate be distributed?

Answer 3

$195,000 to Ann; $45,000 to Mark

Section 2-102(4) provides that Ann inherits the first $150,000 plus one-half of the remainder of the estate where one or more of the descendants of the decedent are not also descendants of the surviving spouse. Section 2-103(1) provides that Mark inherits the remainder of the estate. The Code does not indulge a presumption in this case that Ann will provide for Roger’s descendants at her death.

Question 4

Now suppose that, in Question 1, Roger was survived by Ann and by his mother and father. The value of the estate available for distribution is $340,000.

How should Roger’s estate be distributed?

Answer 4

$330,000 to Ann; $10,000 to Roger’s parents equally

U.P.C. section 2-102(2) provides that Ann takes the first $300,000 plus three- fourths of the remainder if Roger is survived by no descendants but is survived by one or more parents. The parents take the remainder of the estate under U.P.C. section 2-103(2).

Question 5

Now suppose that Roger was survived by Ann, by their son Mark, and by Ann’s daughter, Lisa. Lisa was not adopted by Roger. The value of the estate available for distribution is $240,000.

How should Roger’s estate be distributed?

Answer 5

$232,500 to Ann; $7,500 to Mark.

U.P.C. section 2-102(3) says that Ann will inherit the first $225,000 plus one-half of the remainder of the estate where Roger leaves descendants all of whom are also descendants of Ann and where Ann has one or more descendants who are not descendants of Roger.

Question 6

Finally, assume that Roger was survived by Ann, by their son Mark, by Ann’s daughter Lisa and by Roger’s parents. Assume also that Roger had executed a will which did not purport to dispose of his estate but which did provide that Mark should take nothing from his estate. The value of the estate available for distribution is $340,000.

How should Roger’s estate be distributed?

Answer 6

$330,000 to Ann; $10,000 to Roger’s parents.

While most states do not permit a will to disinherit a person under the laws of intestate succession, the U.P.C. in Section 2-101(b) does permit a decedent to “expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession.” This will is called a “negative will.” The heir is treated as having disclaimed his or her interest and, under U.P.C. section 2-801(d), the property passes as if the heir predeceased the decedent. U.P.C. section 2-102(2) says that Ann will inherit the first $300,000 of the estate plus three-fourths of the balance since all of Roger’s descendants were deceased and Roger’s parents survived. U.P.C. section 2-103(2) gives the remainder to Roger’s parents.

Question 7

Ted died survived by his wife, Leah and his brother, John. Ted died intestate with an estate of $300,000. How should Ted’s estate be distributed?

Answer 7

$300,000 to Leah

As a sibling, John is not entitled to an intestate share if his brother is survived by a wife.

Question 8

Bob married Betty in 1999. Bob had three sons from a previous marriage, Paul, Gordie and Steve. Betty had three daughters from a previous marriage, Rena, Ada and Melissa. Bob and Betty had no children together. Bob died without a will with an estate of $300,000. He is survived by Betty, his three sons and her three daughters. How much, if any, of Bob’s estate is Betty entitled to?

Answer 8

$225,000

Because Bob is survived by children and his surviving spouse has children who are not his children, U.P.C. § 2-102(4) provides the surviving spouse with $150,000 + one-half of the balance.

Question 9

Jennifer died intestate. Her two sons had predeceased her. One of the predeceased sons left a child, Amy, and the other son left two children, Mark and Sam. After payment of debts and taxes, Jennifer’s estate is valued at $120,000.

How should Jennifer’s estate be distributed?

Answer 9

$40,000 each to Amy, Mark and Sam

U.P.C. section 2-103 provides that the estate passes to the decedent’s descendants by representation. U.P.C. section 2-106(b) provides that the estate is divided into as many shares as there are surviving descendants in the generation nearest to the decedent which contains one or more surviving descendants.

Question 10

Suppose that Jennifer had been survived by a daughter, Heather, and by Amy, Mark and Sam. How should Jennifer’s $120,000 estate be distributed?

Answer 10

$40,000 to Heather, $26,666 each to Amy, Mark and Sam

If you look at U.P.C. section 2-106(b) you will note that its scheme is to allocate the estate into as many shares as there are living descendants in the first generation containing living descendants and predeceased members of that generation who died leaving surviving descendants. One share goes to each of the surviving descendants of that first generation and the remainder is lumped together and divided equally among the descendants of the predeceased members of that first generation.

Question 11

Suppose that Jennifer had not been survived by issue but she was survived by her mother and by two sisters. How should the estate of $120,000 be distributed?

Answer 11

$120,000 to Jennifer’s mother.

U.P.C. section 2-103(2) provides that, if there are no surviving descendants, the estate goes to the parents equally if both survive or to the surviving parent if only one survives. The sisters would take nothing.

Question 12

Danielle, a widow, died intestate survived by two daughters, Amber and Anita, and her mother, Chelena. Danielle’s estate is worth $300,000. How should it be distributed?

Answer 12

$150,000 each to Amber and Anita

Children of the decedent will inherit before a parent of the decedent.

Question 13

Bella has three children, Brian, Bonnie, and Crystal. Brian died and left his entire estate to his wife, Jodi. Bella then dies survived by Bonnie, Crystal and Jodi. Her estate is worth $300,000. How should it be distributed?

Answer 13

$150,000 each to Bonnie and Crystal

Because he predeceased his mother and left no surviving issue, Brian is NOT allocated a share of his mother’s estate.

Question 14

Christian has a son, Larry, who predeceased him. Christian dies without a will. He is survived by his mother, Terry, his step-father, Joe and his uncle, Dan. Dan is the brother of Christian’s father. How should Christian’s $600,000 estate be distributed?

Answer 14

$600,000 to Terry.

According to U.P.C. § 2-103, Christian’s mother is the only person eligible to share in his estate.

Question 15

Jerry, a childless bachelor, dies survived by his five brothers: George, Newman, Brennan, Marshall, and Douglas. Jerry’s only sister, Elaine, predeceased Jerry. How should Jerry’s $60,000 estate be distributed?

Answer 15

$12,000 each to George, Newman, Brennan, Marshall and Douglas.

Because Elaine predeceased Jerry, her estate cannot take.

Question 16

Gerry dies having never married not having children. His only sister, Suzanne, predeceased him. Gerry is survived by Suzanne’s husband, Mike and her four sons, Jamie, Jordan, Jared, and Jacob, and his grandfather, Paul. How should Gerry’s $200,000 estate be distributed?

Answer 16

$50,000 each to Jamie, Jordan, Jared, and Jacob.

Suzanne is a descendant of the decedent’s parents, so her surviving issue can take her share by representation.

Question 17

If both of Jennifer’s parents predeceased her and she was survived by her paternal grandmother, her maternal grandfather and an uncle who is the son of her paternal grandparents, how should Jennifer’s estate of $120,000 be distributed?

Answer 17

$60,000 each to her paternal grandmother and her maternal grandfather.

U.P.C. section 2-103(4) provides that half of the estate passes to the maternal grandparents or the survivor of them and the other half passes to the paternal grandparents or the survivor of them. Under the general principle of representation, the uncle would be excluded since he is a descendant of a living heir.

Question 18

Suppose that Jennifer was survived by her maternal grandfather, by an uncle who is the issue of her deceased paternal grandparents, and by two cousins who are the issue of a predeceased aunt who was a child of her deceased paternal grandparents.

How should Jennifer’s estate of $120,000 be distributed?

Answer 18

$60,000 to the maternal grandfather, $30,000 to the uncle and $15,000 each to the cousins.

U.P.C. section 2-103(4) provides that one half of the estate passes to the maternal grandparents or the survivor of them. The other half passes to the paternal grandparents or their descendants by representation. Since the closest level at which there are living descendants is that of aunts and uncles and there is one uncle and a predeceased aunt who left issue, we would distribute $30,000 to the uncle and the remainder would be divided equally among the two cousins.

Question 19

What would happen to Jennifer’s estate if the administrator of her estate could not locate any living kindred but did determine that she had previously been married and that her former husband had three children by a prior marriage and that he had left his entire estate to his mother?

Answer 19

Jennifer’s estate would escheat to the state.

The U.P.C. provides that if there are no living relatives of the decedent, the estate escheats to the state. U.P.C. § 2-105.

Question 20

Todd and his wife, Mary, were killed in an automobile accident. When the paramedics arrived on the scene there was no visible sign of life in either of them and they were pronounced dead at the hospital. Mary, who was pregnant, was put on a life support system and her baby was born alive several days later. In addition to the new baby, Amanda, Todd was survived by his parents. Under these circumstances, how should Todd’s estate be distributed?

Answer 20

All to Amanda.

U.P.C. section 2-104(a)(2) says that “[a]n individual in gestation at a decedent’s death is deemed to be living at the decedent’s death if the individual lives 120 hours after birth.” U.P.C. section 2-103 states that descendants of the decedent take if their is no surviving spouse. Since Mary cannot take because of her failure to survive for 120 hours, Amanda should take the entire estate.

Question 21

Alice is married to James and they have a daughter, Sarah. Alice and James are driving to Alice’s parent’s house for a dinner on Christmas Eve. Alice and James are in a car accident. James dies instantly. Alice is taken to the hospital in a coma. She dies on New Year’s Eve. How should James’s $300,000 estate be distributed?

Answer 21

$300,000 to Alice’s estate.

U.P.C. section 2-104 requires that an heir survive the decedent by 120 hours. James died on Christmas Eve (December 24th) and Alice died on New Years Eve (December 31st). Alice survived James by at least 144 hours (6 days). Since she survived the statutory time requirement, Alice is entitled to her intestate share. U.P.C. section 2-102(1).

Question 22

What if instead of New Year’s eve, Alice dies on Christmas Day.

How should James’s $300,000 estate be distributed?

Answer 22

$300,000 to Sarah.

U.P.C. section 2-104 requires that an heir survive the decedent by 120 hours. James died on Christmas Eve (December 24th) and Alice died on Christmas Day (December 25th ). Alice survived James by only 24 hours (1 day). Because she did not survive the statutory required time, she is treated as if she predeceased James, and his estate is distributed to his next surviving heir, his daughter. U.P.C. section 2-103.

Question 23

Mariah and Brian are married with no children. Mariah and Brian are in a plane crash. Mariah dies instantly. Brian dies a few hours later on the way to the hospital. Mariah has no living relatives. Brian is survived by his son from a previous marriage, Jackson. How should Mariah’s $100,000 estate be distributed?

Answer 23

$100,000 to Jackson

Jackson is a step-child of Mariah, and while step-children are not heirs under the definition of “issue” intestate succession, they can inherit when there are no other living heirs

(b) the decedent has:

(1) one deceased spouse who has one or more descendants who survive the decedent, the estate or part thereof passes to that spouse’s descendants by representation; or

(2) more than one deceased spouse who has one or more descendants who survive the decedent, an equal share of the estate or part thereof passes to each set of descendants by representation.

U.P.C. section 2-103(b). Jackson is son of deceased spouse Brian, from a previous marriage, so can take under this section.

Question 24

Bob was married to Elise and they had two children, Tim and Tom. Subsequently, they divorced and Bob married Anita. They had one child, Kim. Bob, Elise and Anita are all deceased. Recently, Tom died intestate.

How should Tom’s estate be distributed?

Answer 24

To Tim and Kim, equally.

Even though Tom and Kim are “half-brother and half-sister”, the U.P.C. provides that relatives of the half-blood inherit equally with relatives of the whole blood. U.P.C. § 2-107.

Question 25

Santos and Corazon had been married for seven years. Having been unsuccessful in their attempt to have children, they adopted a young son, Felipe. When Corazon died, she devised her entire estate to Santos. When Santos died intestate, he was survived by his mother, by one brother, Angel, and by Felipe. Under these circumstances, how should Santos’ estate be distributed?

Answer 25

All to Felipe.

Under U.P.C. sections 2-115(1), 2-116 and 2-118 (a), Felipe is the child of Santos for purposes of intestate succession. As such, he will inherit the entire estate under U.P.C. section 2-103.

Question 26

Assuming that Felipe was the child of Santos’ deceased sister and brother-in-law, that he had been raised by Santos and Corazon as their foster-child and that they had held him out to the public as their child, would Felipe be entitled to inherit as the descendant of Santos in a jurisdiction that rejects equitable adoption?

Answer 26

No.

Although this may be harsh under certain circumstances, you are correct. Under U.P.C. section 1-201(5), the term “child” excludes a person who is only a foster child.

Question 27

Jason and Tiffany live together but are not married. Jason and Tiffany have a daughter, Anna. Jason dies survived by Tiffany, Anna and his mother, Katharine. Can Anna inherit Jason’s estate?

Answer 27

Yes.

Anna is the child of Jason regardless of her parent’s marital status. U.P.C. §§ 2-116, 2-117.

Question 28

Jason is married to Tiffany. They have a child together, Anna. Jason and Tiffany divorce and Tiffany marries Cedric. Cedric adopts Anna. Jason dies survived by Anna and his mother, Katharine. Can Anna inherit Jason’s estate?

Answer 28

Yes.

Although Anna was adopted by Cedric, Cedric is the spouse of Anna’s natural parent; therefore, Anna is not precluded from inheriting from her natural father. U.P.C. §§ 2-118(a), 2-119(b). In essence, she will be able to inherit from her mother, her natural father, and her adoptive father.

Question 29

Suppose that it had been Anna who died and that she was survived by both Cedric, her adopted father, and Jason, her natural father. Who should inherit Anna’s estate?

Answer 29

Cedric only.

Under UPC section 2-119 (a) a parent child relationship does not exist between an adoptee and her genetic parents except under 2-119 (b) which establishes that a parent child relationship exists between an individual adopted by the spouse of either genetic parent and the genetic parent whose spouse adopted the individual and the other genetic parent, but only for purposes of the right of the adoptee or a descendant of the adoptee to inherit from or through the other genetic parent. Therefore, Jason cannot inherit from Anna.

Question 30

Alberto has a daughter, Candice, with Peggy. After a year together, Alberto and Peggy, who were never married, separate. Alberto visits Candice regularly and gives Peggy $300 a month to help raise Candice. Alberto attended all of Candice’s school functions, including parent-teacher conferences. Candice dies survived by Peggy and Alberto. Can Alberto inherit from Candice?

Answer 30

Yes.

U.P.C. § 2-114 as amended sets forth the circumstances when a parent would be barred from inheriting from his or her child. These include termination of parental rights or clear and convincing evidence that the parent’s rights could have been terminated for nonsupport, abandonment, abuse, neglect, or other actions or inactions of the parent toward the child. Because Alberto’s actions do not fall into these categories, he should be able to inherit from Candice.

Question 31

Leah was born to Heather who, at the time of Leah’s birth, was unmarried but cohabiting with Sam. Without his knowledge, Heather named Sam as the father on Leah’s birth certificate. Sam and Heather separated within two months of Leah’s birth. Sam paid support to Heather for one year but thereafter failed to provide any monetary support. He referred to Leah as “my daughter” until the date of his death. Sam was survived by his mother and father. Under these circumstances, who should inherit Sam’s estate?

Answer 31

Sam’s mother and father equally.

Although Leah could bring an action under the Uniform Parentage Act to establish paternity, there is no presumption which aids her in establishing that Sam is her father. Without a definitive judgment in her favor, it is doubtful that Leah would inherit. See Uniform Parentage Act section 204. Assuming no other descendants, the entire estate would go to Sam’s parents equally. U.P.C. § 2-103(2).

Question 32

Suppose that Sam and Heather did marry in a civil ceremony although it has now been determined that Sam was never divorced from his first wife. Sam and Heather ceased living together prior to Leah’s birth but Leah lived with Sam and he referred to her as his child. If Sam was survived by Leah and by his parents, who should inherit his estate?

Answer 32

Leah.

Under the Uniform Parentage Act section 204(a)(3), if Sam and Heather are married in a ceremony in apparent compliance with the law, even though the marriage is invalid, a rebuttable presumption arises that Leah is his child. As such, she would inherit his estate under U.P.C. section 2-103.

Question 33

Suppose that Sam and Heather had been married but were divorced two months prior to Leah’s birth. Remember that Sam was survived by his mother and father. Under these circumstances, how should Sam’s estate be distributed?

Answer 33

Leah.

Because Leah’s father and mother were married and she was born within 300 days of the termination of the marriage by divorce. Thus a presumption is raised that Sam is her father. The burden would be on Sam’s parents to rebut the presumption by proving that she was not Sam’s child. Uniform Parentage Act section 204(a)(2).

Question 34

Tran lives with Huy. They have a son, Raymond. Huy consents to be listing on Raymond’s birth certificate as his father. Two years after Raymond’s birth, Tran and Huy are married. Huy dies four years later. Can Raymond inherit from Huy?

Answer 34

Yes.

Under the Uniform Parentage Act § 204(a)(4), if the parents of a child are married after the child is born, a presumption that the husband is the father only arises if he agrees to be and is named as the father on the child’s birth certificate.