Intestacy

Question 1

What is Intestacy

Answer 1

When the decedent leaves no will.

Question 2

What is Partial Intestacy

Answer 2

Decedent leaves a will (or Trust) that disposes of only part of the probate estate; the part of the estate not disposed of by the will passes by intestacy.

Question 3

What law governs property during intestacy

Answer 3

Real Property: Where property is located.

Personal Property: Where decedent is domiciled at death

Question 4

Testacy

Answer 4

Decedent leaves a will that provides for the disposition of her property at death.

Question 5

What is the goal of the Intestacy rules

Answer 5

Intestate Succession rules are meant to carry out the probable intent of the typical intestate decedent

Question 6

What happens when property is not devised by will

Answer 6

Default Rule: Probate Code § 6400
Any part of the estate of a decedent not effectively disposed of by will passes to the decedent’s heirs

Question 7

What is the surviving spouse’s intestate share of the decedent’s CP?

Answer 7

CP/ Quasi-CP: Half of the community property/ quasi CP that belongs to the decedent (essentially ALL of the CP)

Question 8

What is the surviving spouse’s intestate share of decedent’s SP?

Answer 8

The entire intestate estate, if the decedent did not leave any surviving issue (parent, brother, sister, or issue of a deceased brother or sister)

One-half of the intestate estate if the decedent leaves only one child (or their issue) OR if the decedent leaves no issue, but leaves a parent or parents (or their issue)

One-third of the intestate estate in the following cases:
(A) Where the decedent leaves more than one child.
(B) Where the decedent leaves one child and the issue of
one or more deceased children.
(C) Where the decedent leaves issue of two or more deceased children.

Question 9

120 Hour Survival Rule

Answer 9

A person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for the purpose of intestate succession, and the heirs are determined accordingly.

Must be established by clear and convincing evidence

This rule DOES NOT APPLY if the application of the 120-hour survival requirement would result in the escheat of property to the state.

Question 10

Simultaneous Death of Spouses and their CP

Answer 10

Probate Code § 103:
If two spouses die simultaneously, each estate receives ½ of the community property and quasi-community property (still subject to the 120-hour rule)

Question 11

Simultaneous Death: Beneficiary right to succeed
interest conditional upon survival

Answer 11

If a beneficiary’s gift is conditioned upon them surviving another person, AND it cannot be established by C&C evidence that they did: The beneficiary is deemed not to have survived that person (i.e., died simultaneously)

If the beneficiary must survive multiple beneficiaries, AND it cannot be established by C&C evidence that they did: divide the property equally among the named beneficiaries (with each beneficiary’s estate receiving a portion).

Question 12

What happens to property in JT if Simultaneous Death of Joint Tenants

Answer 12

If property is held by multiple joint tenants who die simultaneously (or it can’t be proven using C&C
evidence who died first)
- JT property will be divided into as many portions as there are joint tenants
- Each joint tenant’s share is administered as if that joint tenant had survived the others.

Question 13

Simultaneous Death of Insured and Beneficiary (e.g., under a life insurance policy)

Answer 13

the policy proceeds shall be distributed as if beneficiary had predeceased the insured.

EXCEPT IF the policy is CP or quasi-CP of the insured & and her spouse, and no alternative beneficiary is otherwise named on the policy (then look at the CP rule for simultaneous death)

Question 14

What happen to all property not passing to the surviving spouse under intestacy law?

Answer 14

Overview of Analysis:
a. Surviving children (or issue?)
b. Surviving parent(s)?
c. Surviving issue of parents?
d. Surviving grandparents (or issue)?
e. Step-children from a predeceased spouse?
f. Kin surviving them from the last 2 columns?
g. Surviving in-laws or issue of in-laws?
h. IF NO the estate escheats to the state

Question 15

Classic/Strict Per Stirpes

Answer 15

Most common in CA:

Start at 1st generational line below the decedent.

Assign an equal share to those members who are alive, or deceased leaving issue. NO DECEASED w/ NO ISSUE

If any of the members on that line are deceased, go to their generational line & assign their share equally to their issue

Question 16

Modern Per Stirpes

Answer 16

Default in CA if not contrary intention

Go to the first generational level below the decedent with at least one person alive.

Assign everyone on that line (alive or dead) an equal share of the estate, then to their issue(s) if dead.

Question 17

Per Capita Per Capita at Each Generation

Answer 17

Goes to the first generational level below the decedent with at least one person alive (SAME AS MODERN PER STIRPES)

BUT subsequent takers are treated equally (e.g., if 1/2 of estate still undevised after first generation level, remaining half shared equally among other level)

Question 18

A Parent/Child Relationship Exist (for the purposes of Intestate Sucession) Between:

Answer 18

(a) A person and the person’s natural parents, regardless of the parent’s marital status

(b) An adopted person and the person’s adopting parent or parents.

Question 19

Adoption and the Relationship Between Child and their NATURAL parent

Answer 19

(a) An adoption severs the parent/child relationship between an adopted person and their NATURAL parent

UNLESS both of the following requirements are satisfied:

(1) The natural parent and the adopted person lived together at any time as parent and child, OR the natural parent was married to or cohabiting with the other natural parent at the time the person was conceived and died before the person’s birth.

AND

(2) The adoption was by the spouse of either of the natural parents OR the adoption was after the death of either of the natural parents.

*The adoption must be by the spouse or surviving spouse of that parent

*a prior adoptive parent and child relationship is treated as a natural parent and child relationship

Question 20

Adoption Hypo: Child’s parents were married to each other or lived together as a family. Child lives with both parents. Parent 1 dies. Parent 2 relinquishes child for adoption.

Answer 20

For the purpose of inheritance, the adopted child
remains a member of both the deceased parent’s family and of the relinquishing parent’s family.

The child lived with the natural parents, as parent and child, satisfying Subdivision (a)(1). The adoption was after the death of the Parent 1, satisfying Subdivision (a)(2)

Question 21

Adoption Hypo 2: Child’s parents were married to each other or lived together as a family until father died. Child lives with Parent 1 but not Parent 2 because Parent 2 died prior to child’s birth. Parent 1 relinquishes child for adoption

Answer 21

For the purpose of inheritance, the adopted child remains a member of both the deceased parent’s family and of the relinquishing parent’s family.

Parent 2 died before the birth of the child, satisfying the Subdivision (a)(1) requirement and the adoption was after the death of the Parent 2, satisfying Subdivision (a)(2).

Question 22

Posthumous Children

Answer 22

Relatives of the decedent conceived before the decedent’s death but born thereafter inherit as if they had been born in the lifetime of the decedent.

Question 23

Does the Marital Status of the Parents Matter?

Answer 23

Common Law: A child born out of wedlock had no inheritance rights through the mother or father.

CA Probate Code:
(a) Parent/Child relationship exists between child and NATURAL parents, regardless of their marital status

(b) The relationship of parent and child exists between an ADOPTED person and the person’s adopting PARENT or PARENTS.

Question 24

When Can the Parents be Cut Off from their child for inheritance?

Answer 24

(1) Their parental rights were terminated and the parent-child relationship was not judicially reestablished.

(2) The parent did not acknowledge the child.

(3) Presumptive evidence of intent to abandon: the parent left the child during the child’s minority without an effort to provide for or communicate with them for at least seven consecutive years that continued until the end of the child’s minority, with the intent on the part of the parent to abandon the child.

A parent who does not inherit from the child this way shall be deemed to have predeceased the child for purposes of intestacy

Question 25

How to Establish Parentage After Father’s Death

Answer 25

(1) A court order was entered during the parent’s lifetime declaring parentage; OR

(2) Parentage is established by clear and convincing
evidence that the parent has openly held out the child as their own; OR

(3) It was impossible for the parent to hold out the
child as their own and parentage is established by clear and convincing evidence

Question 26

When is there a Parent/Child Relationship between Foster Children and Step Parents?

Answer 26

BOTH of the following requirements must be satisfied:

(a) The relationship began during the person’s minority and continued throughout the joint lifetimes of the stepchild and foster parent/stepparent.

(b) It is established by clear and convincing evidence that the foster parent/stepparent would have adopted the person but for a legal barrier

Question 27

What are Advancements?

Answer 27

The right to give part of an heir’s inheritance to them before death

Question 28

When is Property Treated as an Advancement for the purposes on intestacy? (I.e., when a person dies intestate having given property during their lifetime)

Answer 28

ONLY IF ONE of the following conditions is satisfied:

(1) The decedent declares in a contemporaneous
writing that the gift is an advancement against the heir’s share of the estate.

(2) The heir acknowledges in writing that the gift is an advancement. DOES NOT NEED TO BE CONTEMPORANEOUS.

Question 29

How to Determine the Value of Advancements

Answer 29

The property advanced is to be valued at the time the heir came into possession of the property OR the the time of death of the decedent, whichever occurs first.

BUT if the value of the property advanced is expressed in a contemporaneous writing of the decedent or in an
acknowledgment of the heir made contemporaneously with the advancement, that value is conclusive.

Question 30

What happens if the recipient of the property advanced fails to survive the decedent?

Answer 30

The property is not taken into account in computing the intestate share to be received by the recipient’s issue unless the declaration or acknowledgment provides otherwise

Question 31

When in Paternity Presumed Under the UPA?

Answer 31

1) The presumed parent and natural mother having been married and the child being born during the marriage or within 300 days after termination of the marriage.

2) The presumed parent & natural mother attempted to marry each other in a lawful manner BEFORE the child’s birth (even if marriage is voidable), AND the child’s birth is during the attempted marriage or within 300 days thereafter.

3) The presumed parent and natural mother attempted to marry each other in a lawful manner AFTER the child’s birth, (even if the marriage is voidable) AND:

a. Presumed parent consents to be named on the child’s birth certificate; or,

b. The presumed parent is obligated to support the child under a written voluntary promise or by court order

4) If presumed parent receives the child
into their home AND openly holds the child out as the
presumed parent’s natural child