Intestacy

Question 1

Intestacy

Uniform Probate Code Approach

Answer 1

• The surviving spouse gets 100% of the estate if all of the descendants are also descendants of the surviving spouse, and the surviving spouse has no other descendants.
• The surviving spouse gets $300,000 and 75% of the remainder of the estate if no descendant is alive at the time of the decedent’s death, but there is a surviving parent of the decedent.
• The surviving spouse receives $225,000 and 50% of the remainder of the estate if all of the decedent’s issue are also issue of the surviving spouse, and the surviving spouse has other issue.
• If the decedent has issue not related to the surviving spouse, then the surviving spouse receives $150,000 and 50% of the remainder of the estate.
• If the decedent has a spouse but no descendants or parents, then the surviving spouse takes the entire estate.

Question 2

Surviving Spouse

Uniform Probate Code

Answer 2

The surviving spouse must be legally married to the decedent at the time of death, and there must be clear and convincing evidence that he/she outlived the decedent by 120 hours to take by intestacy.

Question 3

Issue

Adoption

Answer 3

• Adoption generally curtails all inheritance rights between the natural parents and the child.
• Adopted children take the same as a natural child.

Question 4

Issue

Non-Marital Children

Answer 4

The modern trend is that an out-of-wedlock child cannot inherit from her father unless:
* The father subsequently married the natural mother;
* The father held the child out as his own;
* Paternity was proven after the father’s death; or
* Paternity was adjudicated during the lifetime of the father

Question 5

Calculating Share

Per Capita at Each Generation (UPC Approach)

Answer 5

Property is divided 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 survive the decedent.

Question 6

Calculating Share

Per Capita with Representation

Answer 6

• If the surviving issue are not of equal kinship, the property is divided at the first generation in which at least one member survives the decedent.
• The shares that would go to the member that predeceased the decedent would go to his issue.

Question 7

Calculating Share

Per Stirpes

Answer 7

• The surviving issue take in equal portions the share that their deceased ancestor would have taken, if living.
• The estate is first divided into the total number of children of the ancestor who survive or leave issue who survive.