E&E - Part I. Intestate Succession

Question 1

Define

Intestate Succession; Intestacy; Descent and Distribution

Intestate Succession Terms

Intestate Succession

Answer 1

Passage of property when the decedent dies without a will

Question 2

Define

Descent

Intestate Succession Terms

Intestate Succession

Answer 2

Succession to real property. Compare Distribution.

Question 3

Define

Distribution

Intestate Succession Terms

Intestate Succession

Answer 3

Succession to personal property. Compare Descent.

Question 4

Define

Intestate

Intestate Succession Terms

Intestate Succession

Answer 4

Dying without a will. The phrase the intestate refers to the person who dies without a will. Compare Testator.

Question 5

Define

Heir

Intestate Succession Terms

Intestate Succession

Answer 5

A person entitled to take under intestate succession laws. Remember, you have no heirs because you are alive. You may be an heir (i.e., inherit from a person who dies intestate), but you cannot have heirs. The persons who would be your heirs if you were to die intestate are often called your presumptive heirs or your heirs apparent. At old common law, heirs referred to people who took land while the term next of kin referred to people who took personal property. (Please do not refer to persons who take under a will as heirs.) Compare Beneficiary.

Question 6

Define

Ancestor

Intestate Succession Terms

Intestate Succession

Answer 6

A person related to the decedent in an ascending lineal line (e.g., parents and grandparents). Compare Descendant and Collateral Relative.

Question 7

Define

Descendant

Intestate Succession Terms

Intestate Succession

Answer 7

A person related to the decedent in a descending lineal line (e.g., children and grandchildren). Compare Ancestor and Collateral Relative.

Question 8

Define

Collateral Relative

Intestate Succession Terms

Intestate Succession

Answer 8

A person related to the decedent but not in a lineal line (e.g., siblings, nieces and nephews, aunts and uncles, and cousins). Compare Ancestor and Descendant. If the collateral relative is a descendant of the decedent’s grandparents, other than the decedent’s parents and their descendants, the relative is a second line collateral (e.g., aunts, uncles, and cousins).

Question 9

Define

Consanguineous Relationship

Intestate Succession Terms

Intestate Succession

Answer 9

A biological or blood relationship. Compare Affinity Relationship.

Question 10

Define

Affinity Relationship

Intestate Succession Terms

Intestate Succession

Answer 10

A relationship by marriage (i.e., relatives people usually refer to as their “in-laws” or “step-children”). Compare Consanguineous Relationship.

Question 11

Define

Testate Succession

Wills Terms

Intestate Succession

Answer 11

The passage of property under the decedent’s will.

Question 12

Define

Will

Wills Terms

Intestate Succession

Answer 12

A written document or oral declaration directing who will own the decedent’s property upon the decedent’s death. At common law, a will disposed of real property and a testament disposed of personal property. This distinction is rarely made today.

Question 13

Define

Codicil

Wills Terms

Intestate Succession

Answer 13

A type of will that merely amends an already existing will.

Question 14

Define

Testator; Testatrix

Wills Terms

Intestate Succession

Answer 14

A person who dies with a valid will. Traditionally, the term testator refers to a male and the term testatrix refers to a female. In modern usage, testator refers to any person who dies with a valid will, regardless of gender. Compare Intestate.

Question 15

Define

Devise

Wills Terms

Intestate Succession

Answer 15

A gift of real property in a will. The person who receives the devise is called the devisee.

Question 16

Define

Bequest

Wills Terms

Intestate Succession

Answer 16

A gift of personal property in a will. See Legacy.

Question 17

Define

Legacy

Wills Terms

Intestate Succession

Answer 17

A gift of money in a will. The person who receives the legacy is called the legatee. A legacy is a type of bequest. See Bequest.

Question 18

Define

Beneficiary

Wills Terms

Intestate Succession

Answer 18

Generic term for a person who receives property under a will, regardless of whether it is real or personal property. Compare Heir.

Question 19

Define

Trust

Trusts Terms

Intestate Succession

Answer 19

A property conveyance whereby the owner divides title to the property into legal and equitable interests and imposes fiduciary duties on the holder of the legal title to deal with the property for the benefit of the holder of the equitable title.

Question 20

Define

Settlor

Trusts Terms

Intestate Succession

Answer 20

The person who creates a trust by making the property transfer which divides title and imposes duties. The settlor may also be called the trustor, the grantor, or the donor.

Question 21

Define

Beneficiary

Trusts Terms

Intestate Succession

Answer 21

The person who receives the equitable title to trust property and has the fiduciary duty to manage that property according to the settlor’s instructions and applicable trust law.

Question 22

Define

Trustee

Trusts Terms

Intestate Succession

Answer 22

The person who holds the legal title to trust property and has the fiduciary duty to manage that property according to the settlor’s instructions and applicable trust law.

Question 23

Define

Principal

Trusts Terms

Intestate Succession

Answer 23

The property held in trust form. The principal is also referred to as the trust corpos, estate, or res.

Question 24

Define

Income

Trusts Terms

Intestate Succession

Answer 24

The profits or other earnings made by property after it is conveyed in trust form (e.g., the interest on a certificate of deposit or the rent collected from real property).

Question 25

Define

Administration

Trusts Terms

Intestate Succession

Answer 25

The process of collecting and managing all o a decedent’s property so that the decedent’s creditors are paid to the fullest extent allowed by law and the remaining property, if any, is turned over to the heirs or beneficiaries.

Question 26

Define

Administrator

Trusts Terms

Intestate Succession

Answer 26

The person in charge of administering the estate of an intestate decedent. Compare Executor. See Personal Representative.

Question 27

Define

Executor

Trusts Terms

Intestate Succession

Answer 27

The person in charge of administering the estate of a testate decedent. Compare Administrator. See Personal Representative.

Question 28

Define

Personal Representative

Trusts Terms

Intestate Succession

Answer 28

Generic term for the person in charge of administering the estate of a decedent. Compare Administrator and Executor.

Question 29

Define

Probate

Trusts Terms

Intestate Succession

Answer 29

In a broad sense, probate refers to the entire process of administering a decedent’s estate. In a narrow sense, probate means to prove a document or oral declarration to be the decedent’s valid will.

Question 30

Define

Probate Asset

Trusts Terms

Intestate Succession

Answer 30

An asset of a decedent that passes either under intestate succession or through a will.

Question 31

Define

Nonprobate Asset

Trusts Terms

Intestate Succession

Answer 31

An asset of a decedent that passes via a manner other than under intestate succession or through a will. Typical nonprobate arrangements include joint tenancies with rights of survivorship and contracts that provide for the payment of benefits upon death to designated persons such as life insurance policies, retirement plans, and accounts with financial institutions (e.g., joint accounts with survivorship rights and pay on death accounts).

Question 32

What law governs property succession at death?

Intestate Succession

Answer 32

State law

p. 6

Question 33

Which state’s laws are based on the Roman civil law system?

Intestate Succession

Answer 33

Louisiana

p. 6

Question 34

The estate planning laws used in the majority of states originated with the . . .

Intestate Succession

Answer 34

. . . English common law.

p. 6

Question 35

UPC

Intestate Succession

Answer 35

Uniform Probate Code
* Approximately 18 states have adopted one of the many versions of the UPC, and many other states have enacted one or more UPC provisions on an ad hoc basis

Question 36

UTC

Intestate Succession

Answer 36

Uniform Trust Code
* Approved in 2000
* Approximately 32 states and D.C. have enacted the UTC

Question 37

What are the two types of marital property systems in the United States?

Intestate Succession

Answer 37

1. Common Law - Each spouse owns his or her entire income as well as any property brought into the marriage or acquired during the marriage by gift.
2. Community Property - Each spouse owns any property brought into the marriage or acquired during the marriage by gift, but only one-half of his or her income; the other half of the income vests in the other spouse as soon as it is earned.

Question 38

Inception of Title Rule

Ownership and Marital Rights

Intestate Succession

Answer 38

The ownership of the earnings is governed by the law of the spouse’s domicile at the time the property was acquired.

Question 39

Define

Quasi-Community Property

Intestate Succession

Answer 39

Under some community property states, property may be classified as quasi-community property when it was acquired in a common law marital property state but would have been community property if acquired in the community property state.

Question 40

Issues regarding the transfer of real property at death are governed by the law of the state or nation in which . . .

Intestate Succession

Answer 40

. . . the land is located.

Question 41

The law of the decedent’s domicile at the time of death governs . . .

Intestate Succession

Answer 41

. . . personal property manners.

Question 42

Two main factors in determining the new owner of a person’s property upon death.

Intestate Succession

Answer 42

1. The type of asset, and
2. Whether the decedent made a valid will.

Question 43

Intestate as to the person

Intestate Succession

Answer 43

Totally intestate

Question 44

Intestate as to the property

Intestate Succession

Answer 44

If the person’s valid will fails to dispose of all of the person’s probate estate

Question 45

Public Policy

Between 60-75% of Americans die intestate. Why?

Intestate Succession

Answer 45

1. Lack of property,
2. Unaware of importance,
3. Indifference,
4. Cost,
5. Time and effort,
6. Complexity,
7. Admission of mortality, and
8. Reluctance to reveal private facts.

Question 46

Rule of Primogeniture

Descent during the Middle Ages

Intestate Succession

Answer 46

If two or more males were equally related to the decedent, the oldest male would inherit all of the land to the total exclusion of the younger males.

Question 47

Example of how modern statutes determine the surviving spouse’s share in a common law marital property jurisdiction:

Intestate Succession

Answer 47

The intestate share of a decedent’s surviving spouse is:
(1) the entire intestate estate if:
(i) no descendant or parent of the decedent survives the decedent; or
(ii) 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;
(2) the first [$300,000], plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent;
(3) the first [$225,000], plus one-half 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 descendants of the decedent;
(4) the first [$150,000], plus one-half of any balance of the intestate estate, if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse.

UPC §2-102

Question 48

Surviving Spouse

Community Property Jurisdictions

Intestate Succession

Answer 48

The surviving spouse retains one-half of the community property (the portiono f the community that already belongs to the surviving spouse by virtue of the property’s community characterization).

If the community property state recognizes quasi-community property, the surviving spouse will also retain one-half of the quasi-community property.

Question 49

Descent and Distribution

Descendants

Intestate Succession

Answer 49

Intestacy statutes almost universally give descendants all of an intestate decedent’s probate assets that do not pass to the surviving spouse.

Question 50

Descent and Distribution

Per Capita Distribution

Intestate Succession

Answer 50

If all of the intestate’s children are alive, each child receives an equal share.

Question 51

Descent and Distribution

Basic Procedure for Determining Shares of Descendants

Intestate Succession

Answer 51

1. Identify intestate’s children
2. Determine if any predeceased child left a descendant who outlived intestate
3. Ascertain state’s method of handling multigeneration succession

Question 52

Descent and Distribution

Per Stirpes (by Right of Representation)

also “strict,” “classic,” “English,” or “pure” per stirpes

Intestate Succession

Answer 52

A per stirpes approach stresses bloodline over degree of relationship and may cause equally related individuals to be treated differently.

Younger generation descendants divide the share the older generation descendant would have received had that older generation descendant survived the decedent. In effect, these younger generation descendants “represent,” or stand in the shoes of, the older generation.

The intestate’s estate is divided into shares with one share being created for each surviving child and one share for each deceased child who left descendants who survive the intestate. Each surviving child receives one share, and the share of each deceased child passes to that child’s descendants.

Question 53

Descent and Distribution

Per Capita with Representation

also “modern per stirpes”

Intestate Succession

Answer 53

Operates in many aspects like the per stirpes approach with one major difference. Instead of using the intestate’s children as the “root” of the distribution, the nearest generation with descendants who survive the intestate is used. Thus, if all takers are from the same generation, they take per capita (equal shares). Only if takers are of different generations is the share of the younger generation descendants based on the share that the older generation descendant would have received had the older generation descendant survived the intestate.

Thus, when using per capita with representation, divide into intitial shares at first generation with a surviving member.

Question 54

Descent and Distribution

Per Capita at Each Generation

Intestate Succession

Answer 54

Begins as with per capita with representation, but once the division into shares is done at the first generation with survivors, the shares created on behalf of the deceased members of that generation are combined and then distributed per capita among the younger generation heirs.

Thus, when using per capita at each generation, you treat all like-related individuals the same.

UPC §2-106

Question 55

Example

Parent has three children, Arthur, Brenda, and charles. Charles predeceased Parent but was survived by Spouse. Charles had no descendants. How would you distribute Parent’s estate?

Intestate Succession

Answer 55

Parent’s estate would pass 50% each to Arthur and Brenda. No share is set aside for Charles because Charles did not have any descendants who survived Parent. Spouse has no claim to the property because Spouse, Parent’s child-in-law, is not a descendant of Parent.

p. 30

Question 56

Descent and Distribution

Ancestors and Collaterals

Intestate Succession

Answer 56

Under the law of all states, descendants are preferred to ancestors and collaterals even if one of those individuals, such as a parent, is more closely related than a descendant, such as a grandchild.

Jurisdictions are split on whether parents and sibligns share the intestate’s property. However, all jurisdictions are in agreement that if the intestate dies without a surviving descendant or parent, the balance of the probate estate not passing to the surviving spouse passes to the siblings or their descendants. If one of the siblings is predeceases the intestate, the distribution will depend on whether that jursidiction uses per stirpes, per capita with representation, or per capita at each generation.

Question 57

Descent and Distribution

Grandparents, Second-Line Collaterals, and More Distant Relatives

Intestate Succession

Answer 57

If the intestate dies without a surviving descendant , a parent, or a first-line collateral relative, the intestate’s property not passing to the surviving spouse passes to grandparents, second-line collaterals, and perhaps to more distant relatives.

Jurisdictions typically adopt one of two main methods for determining the intestate’s heirs in this situation, a parentelic system or a degree-of-relationship approach.

Question 58

Descent and Distribution

Parentelic Systems

Intestate Succession

Answer 58

Parentelic systems search on each side of the family until an ancestor, or a descendant of an ancestor, is found. The intestate’s probate estate not passing to the surviving spouse is split into two halfs, referred to as moieties.

One of these portions passes to the intestate’s maternal grandparents and the other portion to the paternal grandparents. If all four are alive, each would receive 1/4 of the estate. If one grandparent is already deceased, that grandparent’s share will either pass to the surviving grandparent on the same side of the family or to deceased grandparent’s children and their descendants, that is, the intestate’s aunts, uncles, and their descendants in that family line. The process continues until an heir is located.

Some modern parentelic statutes do not permit the indefinite tracing of heirs.

Question 59

Descent and Distribution

Degree-of-Relationship Systems

Intestate Succession

Answer 59

Degree-of-relationship systems determine heirs by counting the degree of kinship between the intestate and the heir and then awarding the probate estate to the nearest next of kin.

2 basic methods:
1. Civil Law System: Most Common. The status of each potential heir is determined by counting the number of steps between the intestate and the potential heir as you pass through the common ancestor of both. The total is the degree of relationship. The potential heir wit hthe smallest number inherits the estate. If several heirs are equally related, some jurisdictions follow a parentelic preference rule by giving priority to the heirs who have the nearest common ancestor to the intestate.
2. Canon Law System: Developed in the church courts to determine how near a relative an individual could marry, but a few states have implemented this method to determine degrees of relationship for inheritance purposes. Under a canon law system, you count the number of steps from the intestate to the common ancestor of the intestate and the potential heir. Then you count the number of steps from the common ancestor to the potential heir. Instead of adding these numbers together, the larger of these numbers is the degree of relationship. The heirs with the smallest numbers inherit the intestate’s estate.

Question 60

Laughing Heir

Intestate Succession

Answer 60

Heirs who laugh all the way to the bank rather than grieve for the intestate, usually a remote relative who has no emotional or financial interest in the intestate.

Question 61

Escheat

Intestate Succession

Answer 61

If the intestate died without an heir who is entitled to take under the jurisdiction’s intestacy statutes, the intestate’s property estate reverts to the state government through the escheat process.

Question 62

Posthumous or Afterborn Heirs

Treatment of Potential Heirs

Intestate Succession

Answer 62

Heir conceived and developing in the mother’s womb while the intestate is alive but who is not born until after the intestate’s death.

At common law, posthumous heirs were treated as “in being” and capable of inheriting from the time of conception if the heir was thereafter born alive. See UPC §2-104(a)(2).

Medical technology now makes it possible for an heir to be born after the death of one or both biological parents, so many states are adjusting their posthumous heir statutes to address this possibility. Some states do not permit a child not already in utero to inherit by placing a time limit, such as 10 months, for an heir to be born after the intestate’s death. On the other hand, some states permit an heir not in utero when the intestate dies to inherit if certain conditions are satisfied and the heir is born within a statutorily specified number of years after the intestate’s death.

Question 63

Adopted Individuals

Treatment of Potential Heirs

Intestate Succession

Answer 63

Most, if not all, jurisdictions provide that an adopted individual is treated as a biological child of the adopted parents.

However, jurisdictions disagree as to whether an adopted child retains the right to inherit from and through the biological parents. Some states provide that an adopted child is no longer in the biological parents’ family trees, and thus the adopted child does not inherit from any biological ancestors or collateral relatives. This rule is usually adjusted if the child is adopted by the spouse of a biological parent so the child does not lose inheritance rights from either biological parent.

Other states permit the adopted child to continue to inherit from and through the biological parents in addition to their adoptive parents.

Question 64

Inheritance Rights of Adoptive Parents

Treatment of Potential Heirs

Intestate Succession

Answer 64

Adoptive parents and their kin will inherit from and through the adopted child as ifthe adopted child were their biological child.

Question 65

Inheritance Rights of Biological Parents

Treatment of Potential Heirs

Intestate Succession

Answer 65

Adoption cuts off the ability of the biological parents and their kin to inherit from or through the biological childl. This rule is often adjusted if the child is adopted by the spouse of a biological parent so the biological parent does not lose inheritance rights from the child.

Question 66

Adoption by Estoppel; Equitable Adoption

Treatment of Potential Heirs

Intestate Succession

Answer 66

Occurs when a “parent” acts as though the “parent” has adopted the “child” even though a formal court-approved adoption never occurred. Estops the “parent” from claiming that the adoption did not occur. Thus, when the “parent” dies, the adopted by estoppel child is entitled to share in the estate just as if an adoption had actually occurred.

Factors to consider:
Whether the “parent” (1) breached an agreement to adopt, (2) made a good-faith attempt to adopt that failed for some reason, or (3) held the “child” out as actually having been adopted.

In some states, the adoptive by estoppel parents and their kin are prohibited from inheriting from or through the adopted by estoppel child.

Question 67

Adult Adoption

Treatment of Potential Heirs

Intestate Succession

Answer 67

Most states make no distinction based on the age of the child at the time of the adoption. However, some states restrict inheritance rights if the adopted individual was an adult (exceptions may exist when the adopted person is mentally challenged).

Additionally, adult adoption between same-sex partners before the legalization of same-sex marriage had been gaining in popularity.

Question 68

Nonmarital Children

Treatment of Potential Heirs

Intestate Succession

Answer 68

At common law, a child born outside of a valid marriage was considered as having no parents. However, states have expanded the ability of nonmarital children to inherit, either by enacting their own statutes or by adopting the Uniform Parentage Act. Most jurisdictions permit the nonmarital child to inherit from and throug hthe biological mother without any difference in the amount of maternity proof from that which a marital child is required to produce. On the other hand, many states impose higher standards on a nonmarital child to inherit from the rather, especially if the father did not recognize or take other steps to ake paternity clear during the child’s lifetime. Many states also permit the nonmarital child to prove paternity after the purported father has died.

Question 69

Children from Alternative Reproduction Technologies

Treatment of Potential Heirs

Intestate Succession

Answer 69

ART:
1. Artificial insemination
2. In vitro fertilization
3. Gamete intrafallopian transfer
4. Embryo lavage and transfer

Statutes vary, see Uniform Parentage Act of 2002 and 2017, and UPC §§2-120-121.

Question 70

Stepchildren

Treatment of Potential Heirs

Intestate Succession

Answer 70

Generally, stepchildren may not inherit from their stepparents.

Question 71

Half-Blooded Collateral Heirs

Treatment of Potential Heirs

Intestate Succession

Answer 71

At common law, half-blooded heirs could not inherit real property from a half-blooded intestate althoug hthey were entitled to inherit real property.

States adopt one of 3 modern approaches:
1. The majority of states have totally eliminated the distinction between half and whole-blooded relatives in determining inheritance rights.
2. Some states adopt the Scottish rule, which provides that half-blooded collaterals receive half shares.
3. A few states permit half-blooded collateral heirs to inherit only if there is no whole-blooded heir of the same degree.

Question 72

Non-United States Citizens

Treatment of Potential Heirs

Intestate Succession

Answer 72

At common law, a noncitizen could not acquire or transmit real property through intestacy.

Under modern law, noncitizens are treated no differently than citizens when it comes to inheritance rights. See UPC §2-111.

Question 73

Forfeiture

Unworthy Heirs

Intestate Succession

Answer 73

At common law, a person who was convicted of a felony forfeited all of the person’s property to the government, so there was no property for the person’s heirs to inherit. Although most states have abolished forfeiture for most felonies, it is occasionally retained as a remedy for specific crimes. For example, under federal law, a person convicted of certain drug offenses forfeits a portion of the person’s property to the government.

Question 74

Civil Death

Unworthy Heirs

Intestate Succession

Answer 74

In some states, persons who are convicted of certain serious crimes, especially if the sentence is for life, are treated as being civilly dead. A civilly dead person may lose a variety of rights such as the ability to contract, the right to vote, and the right to maintain a lawsuit. However, property passes to a person’s heirs only upon a biological death.

Question 75

Heir Killing Intestate

Unworthy Heirs

Intestate Succession

Answer 75

1. Murder: Most state legislatures have enacted statutes prohibiting murderers from inheriting, called slayer’s statutes. In many of the states without statutes on point, courts impose a constructive trust on the murderer (an equitable remedy courts impose on property held by unworthy individuals to prevent unjust enrichment).
2. Voluntary Manslaughter: Many courts prevent the slayer from inheriting because they had the intent to kill and should not benefit from their evil intent.
3. Involuntary Manslaughter: The vast majority of courts permit the killer to inherit if the killer unlawfully caused the death of the intestate but had no intention to take the deceased’s life.
4. Non-Criminal Killings: If the killing was non-criminal, the heir usually retains the ability to inherit. Examples of non-criminal killings include (1) the heir kills the intestate totally by accident, (2) the killing is in self-defense, or (3) the heir was insane at the time of the killing.

Question 76

Suicide

Unworthy Heirs

Intestate Succession

Answer 76

Many states have statutes that provide for the property of a person who commits suicide to pass just as if the death were caused by some other means.

Question 77

Parent’s Failure to Recognize or Support Child

Unworthy Heirs

Intestate Succession

Answer 77

Some jurisdictions do not allow a biological parent or the parent’s kin to inherit from or through a child unless the parent can prove that the parent “deserves” to inherit.

For example, UPC §2-114 precludes a parent from inheriting from or through his or her child if (1) the parent’s parental rights were terminated and the parental rights were not reestablished judicially, or (2) the child died before reaching age 18 and clear and convincing evidence shows that parental rights could have been terminated because of nonsupport, abandonment, abuse, neglect, or other inactions of the parent toward the child. Some states also preclude a parent from inheriting if the parent has been convicted of certain crimes relating to the child, such as endangerment or sexual abuse.

Question 78

Adultery

Unworthy Heirs

Intestate Succession

Answer 78

Many states limit the rights of spouses who commit adultery. For example, a Kentucky statute provides that “[if] either spouse voluntarily leaves the other and lives in adultery, the offending party forfeits all right and interest in and to the property and estate of the other, unless they afterward become reconciled and live together as husband and wife.”

Question 79

Abuse

Unworthy Heirs

Intestate Succession

Answer 79

Abusive conduct between the heir and the intestate restricts the heir’s ability to inherit under the law of several states. For example, a person may be precluded from inheriting if there is clear and convincing evidence that the heir is responsible for the physical abuse, neglect, or fiduciary abuse of an intestate who was an elder or dependent adult.

Question 80

Lack of Capacity Marriages

Unworthy Heirs

Intestate Succession

Answer 80

A growing number of jurisdictions now permit marriages to be set aside on the basis of lack of capacity even after one of the spouses has died. In these jurisdictions, if the marriage is deemed void, then that spouse is not considered to be the surviving spouse for any purpose.

Question 81

Nonmarital Partners

Treatment of Potential Heirs

Intestate Succession

Answer 81

1. Some states recognize the concept of a common law marriage so that the surviving partner will be treated as a surviving spouse and be entitled to inherit even though the partners were not formally married. The requirements for a common law marriage typically include the partners (1) agreeing to be married, (2) living together as husband and wife, and (3) representing to others that they are married.
2. Some states allow unmarried couples to register as domestic partners if at least one partner is over age 62, which will then entitle the surviving partner to inherit the same share as a surviving spouse.
3. A few states also permit partners who are not legally married to obtain inheritance rights via other means, such as by entering into a civil union or registering as a domestic partner or reciprocal beneficiary.

Question 82

Ancestral Property

Intestate Succession

Answer 82

Principle developed from the common law policy of* keeping real property in the bloodline of the original owner*. The doctrine applied if an individual inherited real property and then died intestate without surviving descendants or first-line collateral relatives. Under this doctrine, real property inherited from the intestate’s paternal side of the family would pass to the paternal collateral relatives, and property inherited from the maternal side would pass to the maternal collateral relatives.

Almost all states and the UPC reject this doctrine. Under modern law, an intestate decedent is treated as the original purchaser of all property the intestate owns at the time of death.

Question 83

Advancements

Intestate Succession

Answer 83

An advancement is a special type of inter vivos gift. The advancer (donor) anticipates dying intestate, and the advancee (donee) is an individual who is likely to be one of the advancer’s heirs. Although the gift is irrevocable and unconditional, the advancer intends the advancement to be an early distribution from the advancer’s estate. Thus, the advancee’s share of the advancer’s estate is reduced to compensate for the advancement. This equalization process is referred to as going into hotchpot.

Question 84

Survival

Intestate Succession

Answer 84

Most jurisdictions impose a survival period; that is, the heir must outlive the intestate by a statutorily mandated length of time before being entitlted to inherit. Under the 1991 version of the Uniform Simultaneous Death Act and UPC §2-104, the heir must outlive the intestate by 120 hours (five days).

Note that most statutes provide that the survival period does not apply if escheat would result. See UPC §2-104.

Question 85

Disclaimers

Intestate Succession

Answer 85

Under modern law, an heir may disclaim or renounce the heir’s share in the estate of an intestate decedent. See UPC §2-801 and the Uniform Disclaimer of Property Interests Act.

Reasons heir may disclaim:
* Property may be undesirable or accompanied by an onerous burden
* Heir may believe that it is wrong to benefit from the death of another
* An heir who is in debt may disclaim the property to prevent the property from being taken by the heir’s creditors
* The heir may disclaim to reduce the heir’s transfer tax burden

Question 86

Requirements of a Disclaimer

Intestate Succession

Answer 86

The most common requirements for a valid disclaimer are listed below:
1. The disclaimer must be memorialized in a writing that is signed by the disclaiming heir.
2. The disclaimer document must be timely filed with the proper authorities. Federal law = 9 months of the intestate’s death. Some states = 9 months of when the heir learns of the inheritance or soften the rule by requiring the disclaimer to be filed within nine months of when the heir learns of the inheritance or 9 months of when a future interest becomes indefeasibly vested. Some states do not impose a time restriction.
3. A copy of the disclaimer instrument must be delivered to the administrator.
4. Disclaimers are irrevocable.
5. Partial disclaimers are allowed.
6. If the heir has accepted the property or any of its benefits, it is too late for the heir to disclaim.
7. The disclaimer must be unconditional.

pp. 64-65

Question 87

Distribution of Disclaimed Property

Intestate Succession

Answer 87

Disclaimed property typically passes as if the disclaiming heir predeceased the intestate. See UPC §2-801(d).

Question 88

Assignment or Release of Expectancy to Inherit

Intestate Succession

Answer 88

A living person has no heirs; thus, an heir apparent does not have an interest that rises to the level of being property. Instead, the hopeful heir’s interest is a mere expectancy.

The heir apparent, however, may agree (1) to transfer the inheritance once received or (2) not to claim a future inheritance. As long as the agreement meets all the requirements of a contract, most courts will enforce the agreement if the heir apparent fails to perform upon the intestate’s death.

Question 89

Equitable Conversion

Intestate Succession

Answer 89

Process by which real property is treated as personal property or vise versa. This result is based on the principle that equity regards as done that which in fairness and good conscience ought to be done.

Question 90

Liability for Debts of Predeceased Intermediary

Intestate Succession

Answer 90

Heirs are entitled to their full inheritance without reduction for debts owed by a predeceased intermediary.

UPC §2-110

Question 91

Heir Designation

Intestate Succession

Answer 91

A few states permit a person to designate a person to take as an heir in a nontestamentary document.

Question 92

The descent of [blank] is governed by the law of the situs of the [blank].

The distribution of [blank] is governed by the law of the intestate’s* [blank] *at the time of death.

Intestate Succession

Answer 92

real property; real property

personal property; domicile