Distribution Flashcards
A tenet by entirety on a bank account creates what presumption?
That the account is to be left for the other person on the account
4 Considerations the court considers when appointing an agent
- efficiency
- trustworthiness and dependability
- level-headiness and rationality
- Availability and proximity
descent and distribution state statutes defines
who will take and what share of the decedent’s probate property that the individual will take when a decedent dies intestate
descent and distribution state statutes contains
disposition and administration of intestate estate
Intestate succession
the process whereby probate property is passed via intestacy
Intestate succession can occur for what 4 reasons
- did not create a valid will
- created a valid will that did not dispose of all the decedents probate property, resulting in what is known as partial intestacy
- created a valid will but later validly revoked the will
- created what purported to be a valid will but was not ultimately admitted into the probate following the decedents death.
heirs
individuals who receive property via intestate succession
heirs apparent
when a statute has a hierarchy of heirs that prioritizes certain familial relationships over others
heirs apparent is used only during the
decedents life
Besides who the beneficiaries and who is appointed as an agent is… Intestacy statues may also determine what 3 things
- who can challenge a will
- define terms used in a will
- offer rules for providing a share for an omitted spouse or omitted child
Collateral kindred examples
siblings, nieces, nephews, aunts, uncles, and cousins
ancestors typically receive
a share only if none of the decedents descendants survive
When are schemes of representation applied?
when multiple heirs are eligible to receive the decedents probate property
Under what 2 circumstances does a surviving spouse get the entire estate?
- no descendant or parent survives the decedent
OR - All the decedents surviving descendants are also the descendant’s surviving spouses AND the surviving spouse has not other descendant that has survived the decedent
IF:
The surviving spouse shares descendants but has other surviving descendants who are not descendants of the decedent
What does the surviving spouse get?
the 1st 225k plus 1/2 of any balance of the intestate
UPC Heirs than Surviving Spouse
If no surviving spouse…
the entire intestate passes to the decedents descendants, parents or other heirs
UPC Heirs than Surviving Spouse
If no surviving spouse… and is survived by 1+ descendants
part of the estate not passing to the surviving spouse passes to the decedents surviving descendants
How is a punitive spouse different from a common law spouse?
similar, but they have a good “faith belief” that they are lawfully married
Even when there is no right to a unmarried cohabitant to inherit under intestacy statutes, many juris allow inheritance under
an express written contract
When survived by a grandparent the intestate estate is distributed by
one share per
1. surviving grandparents, and
2. Deceased grandparents with one or more surviving descendent if any
When survived by a grandparent what are two senarios for if the deceased grandparents have surviving descendants
- The deceased grandparents descendants are also descendants of a surviving grandparent, and they have no other surviving descendants
- the descendants are considered to predecease the decedent - If two+ deceased grandparents have the same surviving descendants, and they have no other surviving descendants
- the deceased grandparents are deemed to be deceased with a surviving descendants
If not survived by descendant, parent, descendant of a parent, grandparent, or descendant of a grandparent, who the survives you
descendants of a deceased spouse
ancestral property
property inherited from the decedents ancestors
What is the table of consanguinity
hierarchy of ancestors and collateral kindred
What id there is no eligible heirs for a decedents intestate estate?
The estate escheats to the state
Representation
Allocating shares between and among a multigenerational class of heirs
3 methods of representation
- Strict per stripes
- modern per stripes
- Per capita at each generation
Working through a representation problem tip: diagram the family tree
- identify the relationships
- put each heir on their proper family line AND generational level
Working through a representation problem tip: Verify eligibility of each potential heir
- ex. survivorship rules (ex. not stepchildren but yes to adopted children)
- if an ancestor is living, the ancestors descendent does not take
- don’t count a dead branch with no surviving descendant
Descendants: marital v nonmarital children
There are no complete bars against nonmarital children
Parentage
Establishment of a legally recognized parent-child relationship
Uniform Parental Act: presumptions of parentage can be
Rebutted
2 US sup ct holdings on child inheritance based on marital status
- Cannot base intestate succession rights on marital status
- Cannot limit paternity actions to 6 years after child’s birth
Uniform Parental Act: when do stepchildren inherit
When there is no other qualified relatives and the property would otherwise escheat to the state
Intestacy statutes and surviving spouse’s priority
all juris. intestacy statutes give the surviving spouse the highest priority
IF:
1. no descendant or parent survives the decedent
OR
2. All the decedents surviving descendants are also the descendant’s surviving spouses AND the surviving spouse has not other descendant that has survived the decedent
What does the surviving spouse of a decadent get?
the entire estate
UPC Heirs than Surviving Spouse
If no surviving spouse or descendant… and is survived by 1+ parent… the estate is divided by what
- Each surviving parents, and
- deceased parents with one or more surviving descendants, if any
state statutes and the inheritance of a punitive spouse
many state statutes allow a punitive spouse to get the same amount that a legal spouse would get
When may a unmarried cohabitant have a claim on the death of a partner
When there is a contract.
UPC Heirs than Surviving Spouse
If no surviving spouse, descendant, or parent.. is only survived by the descendant of a deceased parent
- Then…
ntestate estate passes by representation to the surviving descendants of the decedents deceased parents
UPC Heirs than Surviving Spouse
If no surviving spouse or descendant… and is survived by 1+ parent…
To determine whether a deceased parent of the decedent is treated as having a surviving decedent:
- If all the surviving descendants of 1+ deceased parents are also descendants of one or more surviving parents
- and none of the surviving descendants have any other surviving descendants
- THEN…
those descendants are deemed to have predeceased the descendants
Modern per stripes
division of property made at the generational level closest to the decedent that has one or more individuals who survive the decedent
Difference between modern and strict per stripes
- just where the analysis begins
- the distribution after finding the generation where you begin remains the same
What general 3 things may act as a bar to someones inheritance
- actions
- behaviors
- documents
IF:
no descendant survives the decedent but a parent of the decedent survives
What does the surviving spouse get?
the 1st 300k plus 3/4 of any balance of the intestate estate
IF:
decedent has descendants that are not descendant of the surviving spouse
What does the surviving spouse get?
1st 150k, plus 1/2 of the intestate
that the decedent intends to benefit the closest to them on the family tree
bloodlines
Strict per Stripes, the property is divided into shares at the
generational level closest to the descendant.
Strict per stripes, what if everyone is dead at the closest level to the decedent
the property is still divided among them
Strict per stripes, the number of shares are based on
1) how many children survive the decedent,
AND
2) how many children did not survive the decedent but has a descendant who does survive the decedent
Per capira at each generation
how to divide the shares
4 parts
- divide the initial shares at the first generation that has 1+ surviving descendants.
- split the shares between the surviving descendants and the deceased descendants with surviving descendants - repool the deceased descendants shares
- split the repooled shares between the next generation
- repeat as needed
4 steps to work through a representation problem
1) diagram the family tree
2) verify eligibility of each potential heir
3) Do all three modes of representation unless stated otherwise
4) Tally the total amount of property or shares allocated
Working through a representation problem tip: Tally the total amount of property or shares allocated
- should always equal 1
- cant give out more then what the decedent owned
- check your math
3 things to look at when determining the eligibility of heirs
- Survivorship
- Bars to inheritance
- Contracts/agreements
Uniform Simultaneous Death Act (USDA)
Requires that the person inheriting from a decedent survive them by 120 hours (5 days)
3 policy grounds for bars to inheritance
- Presumed to represent the descendants wishes
- Reflect societal disapproval
- Serve as a deterrent
Most states: can someone opt out of the application of bars to inheritance
No most states do not allow the individual to opt out of a bar to inheritance
3 involuntary bars
1) abandonment
2) killing
3) abuse
Involuntary bar: abandonment
UPC: parent may not inherit when
- their parental rights have been terminated
- clear and convincing evidence that right before the death of the child the parental rights could have been taken due to nonsupport, abandonment, or neglect
Involuntary bar: abandonment
some states: parent may not inherit if the parent
“Willfully abandoned the care and maintenance” of the child
Involuntary bar: abandonment
Surviving spouse
Does not bar a surviving spouse
Involuntary bar: killing
All states have a rule/statute named:
Slayer rule/statute
How does a constructive trust work?
It redirects inheritance when it would be inequitable for an heir or beneficiary to inherit property (ex fraud)
Involuntary bar: killing
UPC: someone who _____________ is considered as having predeceased the victim
Killed intentionally and felonoiously
Involuntary bar: killing
Constructive trust
A remedial trust they may apply to prevent unjust enrichment
Involuntary bar: killing
Manslaughter
Varies by juris by types and degrees
Involuntary bar: killing
all states:
One who killed the decedent may not inherit
Slayer rule bars
Slayer rule bars
Intestate, testate, and nonprobate succession
types of abuse that act as an involuntary bar on inheritance
- financial
- physical
- psychological
A voluntary bar is when
someone is eligible but declines to receive the property
a voluntary bar may be done by
private agreement or disclaimer
Voluntary Bar:
- Private Agreement
- The UPC allows…
competent heirs to alter their interests or shares under intestacy law or will subject to rights of creditors and taxing authority
Voluntary Bar:
- Private Agreement
- in the UPS it refers to a
written agreement executed by all that are effected
Voluntary Bar:
- Private Agreement
- What form must it be in
UPC: written agreement
States: varies
Voluntary Bar:
- Private Agreement
- Can dispose of administration of intestate or testate estate if
- there are no debts owed by the estate
- all people beneficially entitled have agreed in writing that there should be no administrator
- no claims due to an estate or a trustee designated to deal with such claims
Voluntary Bar:
- Private Agreement
- If a person is under disability, consent is given by a
guardian, curator, or conservator
Altering the distribution when a person dies intestate
the intestacy statute applies mechanically, courts have no judicial discretion to alter the distribution
Voluntary Bar
Disclaimer
A common way to rearrange the disposition of a decedents estate
Voluntary Bar
- Disclaimer
- Relation-back theory
The disclaiment is treated as having predeceased the decedent, so a creditor cannot reach the property
Voluntary Bar
- Disclaimer
- The Relation-back theory is valid unless
the disclaimer is trying to avoid a federal tax lien to qualify for public assistance or medicare benefits to avoid inclusion in a bankruptcy case.
Voluntary Bar
- Disclaimer
- What context does it matter when the disclaimer was made
if it was made before or after killing a bankruptcy case
Voluntary Bar
- Disclaimer
- How most states and the UPC need it to be made
a signed writing that is given to the personal representative of the estate
Voluntary Bar
- Disclaimer
- Timing rules:
original UPC
modern UPC
Many states
Original - made within 16 months of death
Modern - No time limit
most states- 9 months from death or transfer
Voluntary Bar
Disclaimer is not effective if the property was
accepted in any form
Voluntary Bar
revoking a disclaimer
Once the disclaimer is made the decision is irrevocable
Voluntary Bar
- Disclaimer
- If the property has been disclaimed the property passes as if…
the disclaiment has died immediately before the time of distribution
Voluntary Bar
Contracts regarding Inheritance
Contracts may expand, modify, or extinguish an individuals ability to inherit property
Voluntary Bar
- Transfer of an expectancy:
Until the decedent dies, a would be-heir has
an expectancy of an inheritance
Voluntary Bar
For a would be -heir to get their expected inheritance, they must (what 3 things)
- survive the decedent
- be priority under the intestacy statutes
- The heirs ability must not be barred
When the decedent makes a valid will disposing of property, or they sold off the property while living, That property…
is not available to be disposed of via intestacy
Can a heir give away their expectancy?
Yes by releasing it to the expectancy to the decedent during the decedents lifetime
OR
may transfer the expectancy to a 3rd person by way of an assignment
Where would a release or transfer of benefits by an heir to the decedent or 3rd party be enforced
- in a court of equity, not in a court of law, provided there was adequate consideration
- Some juris. will never enforce an assignment
3 step process for representation of estate
- Diagram the Family tree
- Verify eligibility of heirs
- Calculate shares
What to do before doing representation for shares
- diagram
- give the spouse their shares
