Chapter 2: Intestacy Statutory Distribution Flashcards
What is INTESTACY?
Any part of the decedent’s estate NOT effectively disposed of by will passes by intestate succession to the decedent’s heirs (determined upon decedent’s death) as prescribed in the UPC, except as modified by the decedent’s will.
UPC § 2-101(a) — The Intestate Estate
What are the disadvantages of intestacy?
- In some cases, probable intent is inaccurate.
- Intestacy can pass property to minors.
- Decedents waives the right to nominate an executor.
- Property—especially real property—can fractionate into multiple undivided shares as tenants in common.
How are potential takers prioritized in intestacy?
- Surviving spouse / descendants (children)
- Surviving parents;
- Descendants of parents (brothers and sisters and their descendants)
- One-half to paternal grandparents and one-half to maternal grandparents (both halves to one side if there are no takers on the other side) and their descendants (Decedent’s aunts, uncles, cousins);
- One-half to the nearest kin on maternal side and one-half to nearest kin on paternal side (all to one side if there are no kin on the other side)
What is the intestate share of a surviving SPOUSE?
UPC § 1-102 — Share of Spouse
The entire estate if: (A) no descendant or parent of the decedents survives the decedent or (B) all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent.
The first $300k + 3/4 of any balance of the intestate estate if: no descendent of the decedent survives the decedent, but a PARENT of the decedent survives the decedent.
The first $225k + 1/2 of any balance of the intestate estate if: all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are NOT the descendants of the decedent.
The first $150k + 1/2 of any balance of the intestate estate if: one ore more the decedent’s surviving descendants are NOT descendants of the surviving spouse.
After the surviving spouse, what is the UPC’s order of priority?
- Descendants (by representation)
- Parents (equally if both surviving)
- Descendants of parents; i.e. siblings, nieces/nephews
- Grandparents (half to paternal, half to maternal)
- Descendants of grandparents; i.e. aunts/uncles
- If none, step-children from predeceased spouse
- If none, estate escheats
NOTE: In Florida, persons who share common great-grandparents with a decedent but who otherwise have no familial relation to the decedent are NOT recognized as heirs of a decedent’s intestate estate.
What is REPRESENTATION?
Representation = a system of rules for dividing property into shares among descendants and collaterals when a more closely related family member predeceases the decedent.
There are three widely used systems of representation:
- English (strict) per stirpes
- Modern per stirpes (per capita w/ representation)
- Per capita at each generation (UPC)
What is the method for Per Capita at Each Generation distribution?
STEP 1 (WHERE?) — Divide the estate at the first generation that has at least one living taker.
STEP 2 (HOW MANY?) — We only split the estate between those alive, AND also those who are dead w/ living descendants.
STEP 3 (IN WHICH MANNER?) — Taking by generation, NOT representation… Alive takers take their share first, and then we add/pool what remains (the shares of those dead). We then divide it EQUALLY amongst the descendants of those who are dead.
Note: You will never have a situation where people in the same generation get different amounts.
When does a HALF-BLOOD relationship exist?
It exists between individuals who share one, but not both parents.
UPC § 2-107: Relatives of half blood inherit the same share they would inherit if they were the whole blood.
Florida: Those of half-blood inherit only half as much as those of the whole blood; but if all are of half blood, they shall have the whole parts.
What is the rule for ADOPTION under the UPC for intestacy?
Same treatment for child and adult adoption
- The parent is a parent and the child is a child of the parent if a parent-child relationship exists or is established.
A parent-child relationship exists between an adoptee and the adoptee’s adoptive parent(s).
A parent-child relationship does NOT exist between an adoptee and the adoptee’s GENETIC parents.
But an adoptee DOES retain inheritance rights w/ genetic family when:
- Adopted by a stepparent
- Adopted by a relative of a genetic parent
- Adopted after death of both genetic parents
- Adopted by functional parent following assisted reproduction
What is the adoption rule for WILLS & TRUSTS?
General Rule: An adopted child generally inherits under a will or trust as if born to the adoptive parent, even for class gifts.
Exception: An adopted ADULT is presumptively EXCLUDED from a class gift or transferor who is NOT the adoptive parent.
Example: Alife adopts Betty after she turned 18. Alfie is the nephew of his aunt Carla. Betty does NOT share in the following devise in Carla’s will: “to the children of my nieces and nephews” because Carla (the transferor) is NOT the adoptive parent and the adoption took place after Betty turned 18.
A adopts adult bf S and later dies intestate, survived only by S and A’s sister B.
How would A’s estate be distributed?
Rule: Adoption creates parental relationship no matter what age… Descendants take to the exclusion of siblings… Sole intestate heir status in intestacy precludes other family members from having standing to challenge a will…
Conclusion: Thus S became a surviving descendant of A… Therefore S gets all of A’s estate.
After A’s death, A’s sister B died testate, survived only by S (B’s nephew by adoption) and B’s first cousin C. B’s will devises everything to nieces & nephews, but if her nieces & nephews predecease or cannot inherit, then equally to her first cousins. How would B’s estate be distributed?
S’s adoption is not valid for purposes of B’s will bc the adoption took place after S was 18. C, B’s only surviving cousin, inherits as the contingent devisee.
Instead, after A’s death, her sister B died intestate, survived by only S (B’s nephew by adoption) and B’s first cousin C. How would B’s estate be distributed?
S inherits B’s entire estate.
What are ADVANCEMENTS?
An “advancement” refers to a lifetime gift from a donor to an intestate heir where the donor intends the lifetime gift to be in place of an inheritance by intestacy.
What is the UPC rule for advancements?
UPC § 2-109: reverses the common law presumption that inter vivos gifts are advancements.
A contemporaneous writing must document the decedent’s intent to treat an inter vivos gift as an advancement.
