Intestacy

Question 1

Who inherits: Subsequent childless spouse survives and one parent of decedent survives?

Answer 1

Spouse takes 25% of R/E and 75% of personal property; parent vested with title to R/E (75%) and 25% of personal property.

Question 2

Who inherits: Decedent survived by spouse and two parents.

Answer 2

Spouse takes 75% and parents take 25% (12.5% each).

Question 3

Who inherits: Decedent survived by spouse and by four children?

Answer 3

Spouse takes 50% and kids split 50%.

Question 4

Who inherits: Decedent survived by two parents and five siblings?

Answer 4

Each parent takes 25% (total of 50%) and siblings split 50%.

Question 5

Who inherits: Spouse is living in adultery with another person?

Answer 5

Spouse forfeits his share.

Question 6

Who inherits: Spouse has unjustly abandoned decedent

Answer 6

Spouse forfeits his share.

Question 7

Who inherits: Decedent dies without a surviving spouse but survived by parents and children of the decedent.

Answer 7

Children receive all of estate.

Question 8

Who inherits: Decedent NOT survived by children, spouse, parents or siblings but IS survived by grandparent, aunts/uncles and cousins.

Answer 8

Grandparent inherits.

Question 9

Who inherits: Decedent NOT survived by children, spouse, parents or siblings but IS survived by aunts/uncles and cousins.

Answer 9

Aunts and uncles; deceased aunt’s and uncle’s children (decedent’s cousins) by representation.

Question 10

How does IN law presume spouses hold assets?

Answer 10

R/E - Tenants by the entireties; IC 29-1-2-1

Personal property - tenants in common; IC 29-1-2-1(7).

Question 11

How are half-siblings treated under IN intestacy law?

Answer 11

The same as full siblings. IC 29-1-2-5

Question 12

How are step-siblings/children treated under IN intestacy law?

Answer 12

They do NOT inherit unless they were adopted.

Question 13

What about a child born or conceived after parent’s death?

Answer 13

Updated in 2016 - “Child” includes “an adopted child or a child that is in gestation before the death of a deceased parent and born within forty-three (43) weeks
after the death of that parent.” DOES NOT include grandchild or more remote relations. Does include an embryo that has not been implanted. IC § 29-1-1-3. and IC §30-4-1-2(7)

Question 14

When does an estate escheat to the State of Indiana?

Answer 14

When there is no spouse, issue, parents, grandparents, brothers/sisters or their issue, aunts/uncles or their issue.

Question 15

Child born out of wedlock: Maternal

Answer 15

A child is deemed to be the child of his/her
mother such that the child will inherit from mother’s kindred, both descendants and collaterals, and they may inherit from the child. IC 29-1-2-7(a).

Question 16

Child born out of wedlock: Paternal - child at least 20 years old at father’s death.

Answer 16

For purposes of inheritance, the child shall be
treated as if the child’s father and the child’s mother were married at the time of the child’s birth if:
1. Paternity is established by law in a cause of action filed when the father was alive
IC 29-1-2-7(b).

Question 17

Child born out of wedlock: Paternal - child under 20 years old at father’s death.

Answer 17

Paternity for a child less than 20 years of age when the father died is established by law in a cause of action that is filed:

i. during the father’s lifetime; OR
ii. within 5 months after the father died.

Question 18

Child born out of wedlock: Paternal - child any age

Answer 18

Father married mother and acknowledged paternity; OR
The father executes a paternity affidavit as set forth in
IC 16-37-2-2.1.

Question 19

Child born out of wedlock: Paternal - child born after father’s death.

Answer 19

Is established by law in a cause of action filed within 11 months after the father’s death.

Question 20

What evidence establishes paternity after death (for under age 20)?

Answer 20

The testimony of mother may be received into evidence to establish paternity. However, no judgment shall be entered on the evidence of the mother alone. IC 29-1-2-7(c).

Question 21

Does adopted child inherit from natural parent?

Answer 21

Once adopted, does not inherit from natural parent unless that natural parent was married to the adopting parent (ie, natural mom marries stepdad who adopted)

Question 22

What if the child was adopted by a family member within the 6th degree?

Answer 22

The child can inherit THROUGH either the natural parent or the adoptive parents, whichever will yield the better inheritance, BUT not FROM the natural parent as a child.

Question 23

When do pretermitted children NOT inherit?

Answer 23

Pretermitted children receive an intestate share unless: 1) the will intentionally omitted the child; or 2) the testator had other children living at the time will prepared and left majority of estate to spouse.

Question 24

What if testator wrongly believed child was dead at time will was drafted?

Answer 24

The not-deceased child will receive an intestate share unless it can be established from terms of will that the testator would not have provided for that child had he known he was alive.

Question 25

What if the beneficiary killed decedent?

Answer 25

A person who is found guilty or guilty but mentally ill, of murder, causing suicide or voluntary manslaughter of the Intestate will not inherit because of the individual’s death, whether by intestacy, will or property in trust. IC 29-1-2-12.1.

Question 26

What happens to the slayer’s share?

Answer 26

The person found guilty is a constructive trustee of the property they would have received. The constructive trust may only be used to benefit those persons (other than the constructive trustee) legally entitled to the property determined as if the constructive trustee had predeceased the decedent.
IC 29-1-2-12.1(c).

Question 27

What if slayer kills decedent and then themselves?

Answer 27

If a H-W situation, the murdered person’s share passes to the other’s estate but is held in constructive trust for the murdered persons’ heirs.

Question 28

What requirements are necessary to prove an advancement on inheritance?

Answer 28

If a person dies intestate, property which he gave away during his lifetime is presumed NOT to be an advancement unless (1) the decedent
declared in writing or the heir acknowledge in a writing the gift was an advancement, OR (2) the decedent’s writing or the heir’s acknowledgment otherwise indicates the gift is to be taken into account in computing the division of the intestate estate. IC 29-1-2-10(a).

Question 29

What if the person who received the advancement dies?

Answer 29

If the person receiving the advancement predeceases the intestate person and his lineal descendants will take from the intestate person, the advancement is binding upon the lineal descendants. IC 29-1-2-10(c).

Question 30

How is joint property divided if the owners die simultaneously?

Answer 30

The property is distributed 1/2 as if
one survived and 1/2 as if the other had survived (assumes two owners). If there are multiple joint tenancy owners, use an equal division among the joint owners, e.g., three joint owners - 1/3 each. IC
29-2-14-3.

Question 31

What about life insurance if the insured and primary beneficiary die at the same time?

Answer 31

Where the insured and the beneficiary die and there
is not sufficient evidence of the order of death, the proceeds of the policy are distributed as if the insured survived the beneficiary. IC 29-2-14-4