inheritance

Question 1

intestate

Answer 1

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)

Question 2

decedent survived by spouse

Answer 2

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)

Question 3

share not going to spouse
(or all of estate if no spouse)
order of intestacy

Answer 3

1. All to issue, if any (children)
2. If no issue, to parents or survivor
3. If no issue or parents, to parents issue (siblings)

Question 4

intestate share - majority rule

per capita

Answer 4

Issue take equally if all are of same degree of relationship

i.e. all children or all grandchildren

Question 5

intestate share - most states

per capita w/representation

Answer 5

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

Question 6

intestate share - UPC and modern trend

per capita at each generational level

Answer 6

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.

Question 7

intestate share - minority

strict per stirpes

Answer 7

Property divided at the child’s generation, whether or not deceased.

Question 8

probate estate

Answer 8

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.

Question 9

adoption

Answer 9

For purposes of intestate succession, adopted children are treated the same as the natural children of the adopting parents.

Question 10

effect of adoption

Answer 10

1. Gives rights in adoptive family

2. Severs rights in biological family

Question 11

adoption by estoppel

Answer 11

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.

Question 12

stepparent adoption

Answer 12

If stepparent adopts child and bio parent dies, child can still inherit from bio parent’s family

Question 13

orphan adoption

Answer 13

If child’s natural parents die and child is adopted by close family member, child can continue to inherit from other family members

Question 14

simultaneous death act

Answer 14

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)

Question 15

simultaneous death act

joint tenancy w/right of survivorship

Answer 15

Simultaneous death prevents operation of right of survivorship.
One-half passes through each tenant’s estate resulting in tenants in common.

Question 16

simultaneous death act

120 hour rule (UPC)

Answer 16

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.

Question 17

advancement

Answer 17

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

Question 18

advancement
common law (minority)

Answer 18

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.

Question 19

advancement

UPC (majority)

Answer 19

No advancement UNLESS

i) declared as such in a contemporaneous writing by the decedent OR
ii) acknowledgement as such in writing by the heir

Question 20

advancement

procedure if advancement is found

Answer 20

1. Add amount of advancement back into the estate
2. Compute the statutory distribution
3. Deduct the amount of the advancement from the donee’s share

Question 21

satisfaction of legacy

Answer 21

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.

Question 22

satisfaction of legacy - UPC

Answer 22

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