Inheritance Flashcards
What is a decedent survived by a spouse?
- If survived by spouse but not by issue or parent most states give the entire estate
- If survived by spouse and issue all of whom are also issue of spouse, spouse takes the entire estate
- If survived by spouse and issue at least one of whom is not issue of spouse, the spouse is commonly given a fixed amount off the top and a fraction of any excess. For example, under the UPC, the spouse takes the first $100,000 and one half of any excess.
If T dies with no spouse how does his will pass?
- All to issue, if any
- If no issue, to parents or survivor
- If no issue or parents, to parents’ issue (brothers and sisters of T)
Majority rule: Issue take per capita (equally) if all are of same degree of relationship; otherwise they take by representation
What is a probate estate?
This is the estate that could have been controlled by a will had T executed one. It does not include life insurance, property held in trust, right of survivorship property, securities or bank accounts registered in payable on death (POD) or transfer on death (TOD) form or property T did not own at death.
**The intestacy statute applies only to the “probate estate.”
How must illegitimate children be included in original parents (usually a father who leaves after impregnated mom) will?
- legitimated by marriage; or
2. adjudication of paternity before or after parents death.
How can a step child be a part of his step parents will?
Through adoption or adoption by estoppel (e.g. Steve went to Maude and asked to marry her, Maude says have to adopt to marry, marriage takes place, but adoption did not, treat as though it did)
In what situation may an adopted child continue to inherit from adopted and biological families?
- Stepparent adoption (i.e., W marries H1 and has a child C. H1 dies and W marries H2 who adopts C. C continues to inherit from H1’s family.)
- Orphan adoption (both natural parents die and C is adopted by close family member. C continues to inherit from other family members.)
* RELATED ISSUE: Adopted persons are included in class gift terminology and terms of relationship in accordance with rules for determining relationships for purposes of intestate succession.
What is the simultaneous death act that has been enacted in most states?
When passage of title to property depends on priority of death and there is insufficient evidence that the persons have died otherwise than simultaneously, absent a will provision to the contrary, the property of each passes as though he survived.
Applies to the following:
-Wills: As though testator survived; as though beneficiary predeceased (this is a way that bar examiners can dovetail lapse)
-Intestacy: As though intestate survived and heir predeceased
-Insurance: As though insured survived; as though beneficiary predeceased
Rancher and wife, Lulu, involved in auto accident in which Rancher is killed instantly. Lulu survived for three days, then died. Rancher died intestate. Is Lulu an heir for purposes of intestate distribution?
- Common Law (majority) Yes - Evidence establishes that Lulu survived rancher, could be any time if we know concretely
- UPC & Other States: No (not an heir) 120 hour rule: When passage of title to property depends on priority of death, absent a provision in the governing instrument to the contrary, a person is deemed to have predeceased the decedent unless the person survives the decedent by 120 hours (5 days).
H, a widower, gives his daughter A land worth $12,000 on A’s birthday and tells his other two kids (B and C) that they will receive similar gifts when they reach twenty-five. H dies before the other gifts are made. H dies intestate leaving an estate worth $78,000. At H’s death A’s land is worth $15,000. How should H’s estate be distributed?
- Majority rule: No advancement unless (i) declared as such in a contemporaneous writing by the decedent, or (ii) acknowledged as such in writing by the heir.
- Common law (minority) rule: Any lifetime gift to a child or descendants (including adopted) presumed to be an advancement (that is, an advance payment) of his intestate share, to be taken into account in distribution of the intestate’s estate
ANSWER: there is a total of $90,000 and A is assumed to take the $12,000 of land and so it is assumed as part of her 1/3 share, thus A gets $18,000, B takes $30,000 and C takes $30,000 (this rule only applies to wills that are left intestate)
What is the doctrine of satisfaction with regard to wills that are testate?
A lifetime gift is not a prepayment of any interest under a will unless:
(i) the will provides for this treatment,
(ii) the testator declares in contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction of the devise or
(iii) the devisee acknowledges in writing that the gift is in satisfaction
