inheritance Flashcards
intestate
decedent dies without a will, decedent’s will is denied probate, or decedent’s will does not dispose of all of his property (gift has failed or will contains no residuary clause)
decedent survived by spouse
If survived by spouse but not by issue or parent, entire estate to surviving spouse.
If survived by spouse and issue, all of whom are also issue of spouse, entire estate to surviving spouse.
If survived by spouse and issue of at least one of whom is not issue of spouse, spouse is commonly given a fixed amount off the top (UPC - $100K) and a fraction of any excess (UPC - 1/2)
share not going to spouse
(or all of estate if no spouse)
order of intestacy
- All to issue, if any (children)
- If no issue, to parents or survivor
- If no issue or parents, to parents issue (siblings)
intestate share - majority rule
per capita
Issue take equally if all are of same degree of relationship
i.e. all children or all grandchildren
intestate share - most states
per capita w/representation
Property divided into equal shares at the first generational level at which there are living takers.
Each living person at that level takes a share, and the share of each deceased at that level passes to his issue by right of representation
intestate share - UPC and modern trend
per capita at each generational level
Property divided into equal shares at the first generational level at which there are living takers, but the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level.
Persons in the same degree of kinship to the decedent always take equal shares.
intestate share - minority
strict per stirpes
Property divided at the child’s generation, whether or not deceased.
probate estate
Estate that could have been controlled by a will had T executed one.
Does NOT include life insurance, property held in trust, right of survivorship property, securities or bank accounts registered in POD or TOD form, or property T did not own at death.
adoption
For purposes of intestate succession, adopted children are treated the same as the natural children of the adopting parents.
effect of adoption
- Gives rights in adoptive family
2. Severs rights in biological family
adoption by estoppel
Permits a child to inherit from or through a stepparent or foster parent where legal custody of a child is gained under an unfulfilled agreement to adopt him.
stepparent adoption
If stepparent adopts child and bio parent dies, child can still inherit from bio parent’s family
orphan adoption
If child’s natural parents die and child is adopted by close family member, child can continue to inherit from other family members
simultaneous death act
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 TO THE CONTRARY, the property of each passes as though he survived.
(also look for lapse issue)
simultaneous death act
joint tenancy w/right of survivorship
Simultaneous death prevents operation of right of survivorship.
One-half passes through each tenant’s estate resulting in tenants in common.
simultaneous death act
120 hour rule (UPC)
When passage of title 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).
120 hour rule yields to express provision.
advancement
Advancement - lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor’s estate.
Applies ONLY to intestate estates
advancement common law (minority)
Any lifetime gift to a child or descendants presumed to be an advancement of his intestate share to be taken into account in distribution of the intestate’s estate.
advancement
UPC (majority)
No advancement UNLESS
i) declared as such in a contemporaneous writing by the decedent OR
ii) acknowledgement as such in writing by the heir
advancement
procedure if advancement is found
- Add amount of advancement back into the estate
- Compute the statutory distribution
- Deduct the amount of the advancement from the donee’s share
satisfaction of legacy
A testamentary gift may be satisfied in whole or in part by an inter vivos transfer from the testator to the beneficiary subsequent to the execution of the will, if T intends the transfer to have that effect.
satisfaction of legacy - UPC
Under UPC, A lifetime gift is not a prepayment of any interest in a will UNLESS:
i) the will provides for this treatement,
ii) T declares in contemporaneous writing that the gift is to be deducted from the devise or in satisfaction of the devise, OR
iii) the devisee acknowledges in writing that the gift is in satisfaction
