Intestacy

Question 1

Intestate succession

Answer 1

• if the decedent is survived by ONLY a spouse (no descendants), the surviving spouse will inherit the entire estate
• if the decedent is survived by a spouse AND descendants, the serving spouse will inherit one half or nine third of the decent’s estate with the serving descendants inheriting the rest. Under the UPC, the surviving spouse will inherit the entire estate if All of the descendants are descendants of the surviving spouse.
• in the most states, if the decedent is NOT survived by a spouse, the decent’s surviving descendants will inherit the entire estate equally.
• if the decedent is NOT survived by a spouse OR descendants, the decedent’s surviving parents will inherit the entire estate equally. If there are NO surviving parents, the descendants of the decedent’s parents will inherit the estate

Question 2

strict per stripes

Answer 2

under the common law strict per stripes approach, the estate is divided by the number of members in the first generation of children who are either alive or survived by descendants. Each member who is alive takes their share, and the shares of the deceased members drop to the next generation. The process is repeated for the next generations until every share is taken

Question 3

modern per stripes

Answer 3

The modern per stripes approach works exactly like the strict per stripes approach, except that the estate is divided equally among the living and deceased at the first generation that has a living taker.

Question 4

Per Capita at Each Generation

Answer 4

Under the UPC per capita at each generation approach, the estate is divided at the closet generation to the decedent in which one or more of the descendants are alive. However, shares of the deceased descendants on each level are added together and divided equally among all representatives of the deceased descendants in the next generation level. e

Question 5

Children Born Out of Wedlock

Answer 5

At common law, a child born out of wedlock was prohibited from inheriting from an intestate descendant. Today, non marital children may inherit from either parent so long as the facts establish a legal parent child relationship

Question 6

half-blood Children

Answer 6

At common law, ONLY full blood children were entitled to inherit from an intestate decedent. Today, in almost every state, half-blood children are treated equally as whole blood children

Question 7

adoption by estoppel

Answer 7

in some states, a child may be informally adopted through adoption by estoppel when a person takes a child and assumes parental responsibilities. If such a surviving child can establish adoption by estoppel, equity holds that she can inherit from the decent as if she were legally adopted child. Courts consider several factors when determining whether a relationship constitutes an adoption by estoppel:

(a) The parent’s bestowal of love and affection on the child
(b) The parent’s performance of parental duties toward the child
(c) The child’s obedience and companionship toward the parent
(d) The child’s reliance on the relationship; AND
(e) The parent’s holding out the child as their own

Question 8

advancements

Answer 8

At common law, gifts to heirs during testator’s lifetime were considered advancements on the heir’s intestate share of the estate, and were automatically deducted from the heir’s share of the estate

Today, gifts to heirs during a testator’s lifetime are NOT considered advancements on the heir’s intestate share of the estate UNLESS:

(1) The decedent declared his intent to make the gift advancement in a contemporaneous writing; OR
(2) The heir acknowledged the gift to be an advancement in writing.

Question 9

simultaneous death

Answer 9

Under the UPC and Revised Uniform simultaneous Death Act (RUSDA), a beneficiary is only treated as having survived the testator if there is clear and convincing evidence that the beneficiary survived the testator by 120 hours (5 days)