Intestacy Flashcards
What is the difference between testate and intestate?
Testate = dies with will
Intestate = dies without will
What is a codicil?
A supplement that either amends or revokes a decedent’s will in whole or party.
Who are heirs, issue/decedents, and collaterals?
Heirs: Individuals entitled to property by intestate secession.
Issue: Lineal (ancestors = parental)
Collaterals: relatives through an ancestor.
What happens when there is a simultaneous death?
Under the UPC, if insufficient evidence of who died first, the property will pass as if each had predeceased the other . Heir must be proven by clear and convincing evidence to have survived decedent by 120 hours.
Who qualifies as a spouse?
A legally married partner, not unmarried co-habitants.
What are the 5 cases for surviving spouse shares?
Case 1
-Decedent is survived by descendants who are also descendants of surviving spouse, and surviving spouse has no other descendants. [spouse and shared descendants] = surviving spouse takes entire estate.
- Ex. A (dies) - B
C
- B gets entire estate.
Case 2 - Decedent is survived by a parent but no descendent [spouse and parent]. Surviving spouse gets 300K and 75% of remainder estate. E. X A (dies)- B - X gets 25% and B gets 75% and 300K
Case 3
- Decedent is survived by descendants who are also descendants of the surviving spouse and the spouse has other issue. [Spouse and shared descendants and spouse's kids]. Surviving spouse gets 225K and one half the remaining property.
Ex. A (dies) - B - ?
C. D
-B gets 225K and 50%
Case 4
- Decedent is survived by issue not related to the surviving spouse [Spouse and non-spousal kids]. Surviving spouse gets 150K and half the remaining property.
Ex. ? - A (dies) - B
D
- B gets 150K and 50%
Case 5
- Decedent is not survived b descendants or parents [just spouse]. Spouse gets entire estate
- Ex. A (dies) - B
- B gets 100%
What happens when a decedent dies without heirs?
Property will escheat to the state.
Who qualifies as issue?
Decedent’s lineal line. Must be a parent-child relationship.
Adoptive children can inherit, severs ties with natural parents.
Stepparent adoptions
- Creates a parent/child relationship between the child and stepparent for the purposes of inheritance.
- Adoption will not prevent adoptee form inheriting from other genetic parent.
Posthumously Born Children
- Child is conceived before, but born after the death of mother’s husband.
- If child is born within 280 days of the husband’s death, there is a rebuttable presumption that the child is the husband’s and the child will inherit from husband as if child was born before the husband died.
Note; if child born after 280 days, child has to prove parentage.
Note: UPA increases it to 300 days.
What is Per Stripes?
Divides shares equally according to decedent’s lineal line.
Divide shares into the total number of children who survive, or leave issue who survive and then divide by representation.
Ex. see pg 4. of lecture handout
What is Per Capita with Representation?
Divide the property equally at first generation where a member survives the decedent.
If there are deceased members at that first generation, their shares drop down to their surviving issue at the next generation.
If deceased member of a generation is not survived by living issue, then that member does not take a share.
ex. see page 6 of lecture handout.
What is Per Capita at Each Generation?
UPC
Divide property into equal shares at the first generation where there is a surviving member.
Instead of passing a deceased member’s share by representation, this method pools the remaining shares after each generation.
Pooled shares are divided equally t the next generation.
Ex. See page 7 of lecture handout.
