Intestacy Flashcards
Intestacy
. occurs when an individual dies without a will or fails to effectively dispose of all of their property through non-probate instruments or a valid will
. Intestacy statutes favor decedent’s surviving spouse and issue, followed by other relations, and direct that property escheat to state if there are no surviving statutory takers
Community Property
> Community property is all property acquired during the course of the marriage, including earnings.
all debts acquired during the marriage are community property
The decedent’s share of community property passes to the surviving spouse or domestic partner in the absence of a will.
Quasi Community Property
> Quasi community property is property that is acquired by the married couple while living outside of CA, but if the couple were living in CA at the time the property was acquired, the property would be considered community
property.
Real property located outside of CA is subject to the intestacy laws of the state in which the property is located.
> 1/2 of quasi-community property passes to the surviving spouse or domestic partner in the absence of a will.
Separate Property
> Any gift or inheritance acquired before the marriage and maintained as separate property.
> A will may change the classification of the property via
transmutation(change in characterization of property) but only when it is signed by the adversely affected spouse and expressly indicates an intention to change the nature of the property.
> Statements in a will are not admissible as evidence of a
transmutation of the property in a proceeding commenced before the death of the person who made the will.
I.(A)(1) Community Property Division Principles
Surviving spouse or registered domestic partner of an intestate decedent is entitled to the decedent’s 1/2 of CP and quasi-community property ( so surviving spouse will get all of the CP and QCP)
I.(A)(2) Separate Property Division
> All of the decedent’s separate property passes to SS if the decedent is not survived by any lineal descendants, parents, or issue of parents.
> 1/2 of SP passes to SS if the decedent is survived by one of the above
1/3 of SP passes to SS if the decedent is survived by more than one lineal descendant
> Remainder of SP( if any) passes to the decedent’s surviving issue, and if none, then to other surviving relatives.
I(B)(1). Surviving Spouse or Domestic Partner : Marriage Requirement
> SS must be legally married to the decedent at the time of death( putative spouses and separated spouses qualify).
> Putative Spouse=Even if a marriage is not valid, as long as one party has a good faith belief in its’ validity, the spouses are putative and qualify as spouses for inheritance purposes under CA fam code.
> Under CA Probate rules, if the couple is same-sex, unmarried, elderly, or an opposite-sex couple who receives social security benefits and registered as domestic partners, then CA law treats them similarly to spouses for inheritance purposes
> Couples who cohabitate or live together, but aren’t married do not qualify.
I(B)(2). Survival Requirements
Uniform Simultaneous Death Act(USDA)
> Heir must survive decedent by 120 hours to take under a will or by intestacy.
> Insufficient evidence of the order of death= the property of each individual will pass as though he survived the other
> CA= 120 hour rule applies only to intestacy
> CA= if spouses or domestic partners die simultaneously, 1/2 of CP is included in the estate of one and the other half is included in the estate of the other.
> CA= death is the irreversible cessation of circulatory and respiratory or brain functions.
Joint Tenancy
> When it can’t be determined which joint tenant survived the other, one half of the joint tenancy goes to the estate of the first joint tenant and the other half will go to the estate of the other joint tenant.
> If there are more than two joint tenants
and all of them have died, then the
property is divided equally among the
estates of the deceased joint tenants.
I(C). Issue
I(C)(1). Qualifications
> CA: For one to be classified as issue, a parent-child relationship must be established.
> Parents may not inherit from or through a child if: parental rights have been terminated, the parent did not acknowledge the child, or the parent abandoned the child during the child’s minority for at least seven consecutive years, until the end of the child’s minority, with the intent to abandon( a parent who does not inherit under the statute is treated as having pre-deceased the child.
> Adopted children and half-bloods are treated like children in a will.
Adoption
> Once a child is adopted, they may no longer inherit anything from their natural parents. Cal Probate Code.
This does not include if a step-parent adopts the child so long as the step-parent is married to the
child’s natural parent or if the adopted parent and child lived together at any time as parent and child. Cal Prob Code.
> Equitable Adoption: Foster parents and step-parents are treated as adoptive parents for purposes of inheritance if:
. the relationship began during the child’s
minority and continued throughout the parents’
and child’s lives
. It is established by clear and convincing
evidence that the foster parent or step-parent
would have adopted the child, but for a legal
barrier. Cal Prob. Code
> A foster child who was never legally adopted may be treated as the child of a foster parent who dies intestate
if the foster parent made an agreement with the natural parents of the child to adopt him and proceeded to treat the child as his own.
Children Born Out of Wedlock
> Children born out of wedlock: UPA( adopted by CA): a presumption of paternity arises if the father acknowledges the child as his own(by holding child out as his own or stating so in writing filed with appropriate court); the child can bring an action to establish paternity for inheritance purposes within three years of reaching the age of majority if there is no presumption, and at any time if paternity is presumed.
> CA: A child born less than 300 days after the termination of a marriage by death or divorce is presumed to be the child of both parties to the marriage.
> CA: A presumption of paternity arises if the father and mother attempted to marry before the child’s birth and the child was born within 300 days of the failed marriage, or if the father and mother attempted to marry after the child’s birth and the father’s name is on the birth certificate, the father promises to pay or is ordered to pay child support, or the father holds the child out as his own.
> Posthumously conceived children: Uniform Status of Children of Assisted Conception Act(USCAC) does not recognize posthumously conceived children as natural children of a parent who dies before conception.
- CA recognizes these types of children only if: the decedent authorized posthumous use of his genetic material in a signed and witnessed writing, notice is given to the decedent’s personal rep within four months of death certificate issuance, and the child was conceived and in utero within 2 years of death certificate issuance
I(C)(2) Calculating Share
> Per Capita( Equal Degree):In CA, if the surviving issue are all of equal degree of kinship, then the property passes per capita.
.Ex: L is survived by three children, A, B, and C. Each child takes 1/3 of L’s estate.
> Per Capita With Representation(Modern Per Stirpes): Divides the property equally among the first generation in which at least one member survives the decedent, with the shares of each member of that generation who does not survive the decedent passing to the then living issue, then the nonliving member does not receive a share
. Ex: D, a widow dies intestate survived by child A, who has a son, W, X and Y grandchildren by deceased child B, and grandchild Z, the daughter of deceased child C.
Bc, A is a living heir at the first level, D’s estate will be divided into three equal shares, with A receiving a 1/3 interest, B’s 1/3 interest will pass to X and Y to be split into a 1/6 interest, and Z will take a 1/3 interest. W receives nothing because parent A is still alive.
If A also died, then the shares would be determined at the second generation, thus each child would take a 1/4 share.
> Per Stirpes:Can be used if will calls for it. A distribution occurs per stirpes when the issue take in equal portions the share that their deceased ancestor would have taken if living.
. Estate is first divided into the total number of children of the ancestor who survive or leave issue who survive.
> Per capita at each generation: divides property into as many equal shares as there are members of the nearest generation of issue who survive the decedent and deceased members of that generation with issue who also survive decedent.
