INTESTACY

Question 1

Intestacy Succession

Answer 1

The estate of a decedent who dies without a will is distributed through intestate succession

Question 2

Intestate Distribution Order

Answer 2

In intestacy, the estate will be distributed in the following order:

1. Decedent’s issue
2. If no issue, to parent(s)
3. If none of the above, to issue of parent(s)
4. If none of the above, to grandparent(s)
5. If none of the above, to issue of grandparent(s)
6. If none of the above, to issue of predeceased spouse or domestic partner
7. If none of the above, to decedent’s next of kin
8. If none of the above, to parent(s) of predeceased spouse or domestic partner
9. If none of the above, to issue of parent(s) of predeceased spouse or domestic partner
10. If none of the above, the estate escheats to the state

(NO NEED TO WRITE THIS OUT - APPLY TO FACT PATTERN AS NECESSARY)

Question 3

120-Hour Rule

Answer 3

Under the 120-Hour Rule, unless the decedent’s heir can show, by clear and convincing evidence, that she survived the decedent by 120 hours, she is treated as if she predeceased the decedent.
The 120-Hour Rule is inapplicable if it would result in an escheat to the state.

Question 4

Intestate Distribution - Community Property

Answer 4

In addition to already owning half of the community property and quasi-community property, the surviving spouse is entitled to the decedent’s half of the community property and quasi-community property. Thus, the surviving spouse receives 100% of the community property and quasi-community property.

Question 5

Intestate Distribution - Separate Property

Answer 5

The portion of separate property that the surviving spouse receives is contingent on the number of surviving lineal descendants, parents, or issue of parents

Spouse Only - The surviving spouse will receive 100% of the decedent’s separate property if the decedent is not survived by any children, parents, or sibling.

Spouse + 1 - If the decedent is survived by one child, parent, or sibling, then the decedent’s separate property is split 50/50 between the surviving spouse and the other relative.

Spouse +2 - If the decedent is survived by more than one child, parent, or sibling, the surviving spouse is entitled to one-third of the decedent’s separate property.

Question 6

Issue

Answer 6

An issue refers to the decedent’s lineal descendants including children, grandchildren, great-grandchildren, etc.

Question 7

Calculating Share

If Equal Degree of Kinship - Per Capita

Answer 7

Per capita refers to equal distribution of intestate property if the decedent’s surviving issue are of an equal degree of kinship

Question 8

Calculating Shares

If Unequal Degree of Kinship - Per Capita with Representation (Modern Per Stirpes)

Answer 8

Per capita with representation is applied by equally dividing intestate property among the first level of the decedent’s surviving descendants. If there is a deceased member on this level who left issue, the share will be passed down to the issue. If the deceased member has no surviving issue, that member does not take.

Question 9

Advancements - Common Law

Answer 9

Under common law, any inter vivos gift to an heir gives rise to a rebuttable presumption that the gift was an advancement of that heir’s intestate share.
The heir had the burden to prove that the gift was not intended to be deducted from what he would inherit intestate.

Question 10

Advancement - Modern Law

Answer 10

In California, an inter vivos gift will be treated as an advancement only if the decedent states, in a contemporaneous writing, or the heir acknowledges in a writing, that the gift is an advancement

Question 11

Advancements - Hotchpot

Answer 11

If a gift is deemed an advancement, the reduced share(s) is calculated by applying hotchpot

1. Add the value of the advancement back into the intestate estate.
2. Divide the resulting estate by the number of taking heirs.
3. Deduct the heir’s advancement from the heir’s intestate share.

Question 12

Ommitted Spouse

Answer 12

A surviving spouse who is omitted from a will that was executed prior to her marriage to the testator is entitled to an intestate share of the testator’s estate unless

(i) the decedent made apparent in the will that she intended to omit the spouse,
(ii) the decedent provided for the spouse outside of the will, or
(iii) the spouse made a waiver of her right to her intestate share though a valid agreement.

Question 13

Omitted Spouse - Distribution

Answer 13

The omitted spouse is entitled to half of the decedent’s community property and quasi-community property AND a share of the decedent’s separate property equal to what she would have received through intestate distribution

Question 14

Omitted Children

Answer 14

A child who is not mentioned in a will is entitled to an intestate share of the decedent’s estate if the will was created prior to the child’s birth or adoption, or the decedent mistakingly believed the child was dead or did not know the child existed.

Question 15

Omitted Children - Limitation

Answer 15

An omitted child is not entitled to an intestate share if

(i) the decedent’s omission as intentional,
(ii) the child was provided for outside of the will, or
(iii) the testator had other children and left all or a substantial portion of his estate with the omitted child’s parent.

Question 16

Adopted Children

Answer 16

Adopted Children and biological children are treated the same for the purposes of intestate distribution

Question 17

Adopted Children - Exceptions

Answer 17

Adoption severs the relationship between the adopted child and his natural parent, unless the following requirements are satisfied:

(1) either (i) the natural parents and the adopted child lived together at any time as parent and child or (ii) the natural parent was married to or cohabitating with the other natural parent at the time the child was conceived and died before the child’s birth, and
(2) the adoption was by the spouse of either the natural parents or after the death of either the natural parents.