Intestacy

Question 1

What is intestacy?

Answer 1

If a decedent dies without a will, they die intestate. Intestate succession is a default estate plan developed by the legislature for distributing the property.

Question 2

Does the decedent’s intent matter?

Answer 2

No - the decedent’s actual intent is irrelevant.

Question 3

To take from a decedent, the individual must __________.

Answer 3

Survive the decedent.

Question 4

Special Case: what happens in a ‘Simultaneous Death?’

Answer 4

The Uniform Simultaneous Death Act governs the the situation where the decedent and heir die at the same time.

• Insufficient Evidence: if there’s insufficient evidence to determined who survived whom, the property will pass though each had predeceased the other.
• Burden of Proof: under the USDA, an heir must be proven by clear and convincing evidence to have survived the decedent by 120 hours.

Question 5

Calculate the surviving spouses shares.

[Spouse + shared descendants]

Answer 5

Situation: D is survived by descendants who are also descendants of surviving spouse, and surviving spouse has no other descendants.

Surviving Spouse: takes entire estate.

Question 6

Calculate the surviving spouses shares.

[Spouse + parent]

Answer 6

Situation: D is survived by a parent but no descendant.

Surviving Spouse: $300,000 + 75% of remainder of estate

Question 7

Calculate the surviving spouses shares.

[Spouse + shared descendants + spouse’s kids]

Answer 7

Situation: D is survived by descendants who are also descendants of the surviving spouse, and the spouse has other issue.

Surviving Spouse: $225,000 + ½ of the remaining property.

Question 8

Calculate the surviving spouses shares.

[Spouse + non-spousal kids]

Answer 8

Situation: D is survived by by issue not related to surviving spouse.

Surviving Spouse: $150,000 + ½ of the remaining property.

Question 9

Calculate the surviving spouses shares.

[just spouse]

Answer 9

Situation: D is not survived by descendants or parents.

Surviving Spouse: takes the entire estate.

Question 10

Calculating Issue’s Share – Per Stirpes

Answer 10

1. Divide shares equally according to decedent’s lineal line.
2. Divide shares into the total number of children who survive or leave issue who survive, then divide by representation.

Question 11

Calculating Issue’s Share – Per Capita with Representation

Answer 11

1. Divide the property equally at the first generation where a member survived the decedent.
2. If there are deceased members at that first generation, their shares drop down to their surviving issue at the next generation.
3. If a deceased member of a generation is not survived by living issue, then that member does not take a share.

Question 12

Calculating Issue’s Share – Per Capita at each Generation (UPC Approach)

Answer 12

1. Divide the property into equal shares at the first generation where there is a surviving member.
2. Instead of passing a deceased member’s share by representation, however, this method pools the remaining shares after each generation.
3. Pooled shares are then divided equally at the next generation.