Intestacy

Question 1

Why do around 70% of people not make wills?

Answer 1

• Don’t like thinking about death.
• Need a lawyer (mostly).
• Want to remain private.
• “I don’t have anything to leave anyway, so why should I?”

Question 2

Reasons to make a will:

Answer 2

• Choose where stuff goes.
• Choose guardians of children.
• Get to name executor.
• Tax savings w/ good planning.
• Healthcare Decision making (durable PoA/healthcare PoA, and living wills [what you want to have happen to you])
• No will means your stuff falls to intestacy (government writes your will).

Question 3

How is intestacy determined?

Answer 3

Most states try to carry out the desires of the average person.
- UPC also does this.
- MIN: take care of the elderly first, OR government takes everything period.

Question 4

What happens when a will is present?

Answer 4

Probate is initiated in county where legal residence of dead person is AND somebody action on behalf of the decedent must come forward with the death certificate.

Question 5

In what order do ASSETS fall to?

Answer 5

1) Non-probate assets.
2) Statutory Exemptions (homestead and dower)
3) Creditors
4) Taxes
5) Will Bénéficiaires
6) Intestate Succession

Question 6

Intestacy: Spouses: Who gets first crack?

Answer 6

Spouses get first crack at estates.

Question 7

Intestacy: Spouses: UPC generally.

Answer 7

UPC is generous to spouses because that is probably what most people would want.

Question 8

Intestacy: Spouses: UPC (when no parents/kids left alive)

Answer 8

• Spouse gets the farm
• If the dead person has a common child with the spouse who is still alive, spouse still gets everything.

Question 9

Intestacy: Spouses: UPC (1 parent alive)

Answer 9

Spouse gets first $300k + 3/4 of the rest of the $.
(If $400k left, spouse gets $300k +3/4 of $100k, so total gets $375k).

Question 10

Intestacy: Spouses: UPC (common kids and spouse has one extra kid)

Answer 10

Spouse gets first $225k+1/2 the rest of the $.
(If $325k left, spouse gets $225k+1/2 $100k, so total gets $275k and kid gets $50k).

Question 11

Intestacy: Spouses: UPC (kids alive but not born from spouse)

Answer 11

Spouse gets first $150k+1/2 the rest of the $.
(If $350k left, spouse gets $150k+1/2 $200km so total gets $250k if only 1 kid)

Question 12

Intestacy: Spouses: UPC Issues

Answer 12

Kids can get cut out.

Question 13

Are cohabitators treated the same as spouses?

Answer 13

No.

Question 14

Definition of Death:

Answer 14

Stopping of heart or brain, death certificate, evidence of death.

Question 15

Uniform Simultaneous Death Act

Answer 15

-The instant transfer of money between spouses does not happen if they die within 5 days of each other.
- There needs to be CLEAR AND CONVINCING evidence of simultaneous death.
- In a common accident, husband’s stuff to his family and wife’s stuff to hers.

Question 16

Do wills make changes to simultaneous death?

Answer 16

Yes, wills change the simultaneous death clause to make 5 days a much longer period of time.

Question 17

Intestacy: Children: Generally

Answer 17

If you die with no spouse your kids split your estate evenly. (Grandchildren don’t get an immediate cut due to administrative issues).

Question 18

Intestacy: Children: If the child dies before decedent: English Per Stirpes

Answer 18

(EPS)
- Every branch of the family gets the same amount of $.
- (Branch=living child or dead child who has descendants)

Question 19

Intestacy: Children: If the child dies before decedent: Modern Per Stirpes

Answer 19

(MPS) (what AR has)
-If all kids are dead, it is divided evenly between grandchildren.
-( OR the first generation where someone is alive)

Question 20

Intestacy: Children: If the child dies before decedent: Differences in each Per Stirpes

Answer 20

Main difference is WHERE THE BRANCHES BEGIN.

Question 21

Intestacy: Children: If the child dies before decedent: UPC

Answer 21

-Everyone in a like generation gets a like amount.
- Combination of EPS and MPS.

Question 22

Intestacy: No Spouse or Children:

Answer 22

• Parents split the estate.

Question 23

Intestacy: No Spouse or Children or parents:

Answer 23

Siblings get the estate.

Question 24

Intestacy: No Spouse or Children or parents our siblings:

Answer 24

Nieces and nephews move into the shoes of their parents for the estate.

Question 25

Intestacy: UPC: how to do it

Answer 25

If you can’t find grandparents or descendants of grandparents, your stuff will go the state. (Parantelic system)

Question 26

Intestacy: Adopted Children: General Rule

Answer 26

Adopted children can inherit from and through adopted family (but not from former family).

Question 27

Intestacy: Adopted Children: UPC

Answer 27

• usually can not inherit from biological parents.

Question 28

Intestacy: Adopted Children: UPC 3 Exceptions

Answer 28

1) Upon adoption of child by spouse of bio parent.
2) Adoption by genetic relative of parent.
3) Adoption after death of natural parent. (Usually where both parents die).

Question 29

Intestacy: Adopted Children: Inheritance Rule Generally (UPC)

Answer 29

Don’t look whether there was a formal adoption, rather, was there a “parent-child relationship.”

Question 30

Intestacy: Adult Adoption: UPC

Answer 30

UPC does not allow for adult adoptees to get in on an established inheritance.
(Called “an act of subterfuge” or one that cheats rightful heirs).

Question 31

Intestacy: Child of No One: Inheritance Rule

Answer 31

Supreme Court: Can’t cut off inheritance rights of a non-marital child.
(Some states restrict through cutting off inheritance rights from the father without a paternity test present).

Question 32

Intestacy: Posthumous Children

Answer 32

• Conceived, parents die before birth.
• Posthumous may still inherit.
• Born w/in 10 months = consent to use genetic material & automatic inheritance.

Question 33

Intestacy: Posthumous Children: What to think about:

Answer 33

1) Best interest of the children.
2) State’s interest in administrative efficiency
- Who is taking what, and how long should we wait to distribute?
3) Reproductive autonomy of the decedent.
- Did the dead person want kids after they died?

Question 34

Intestacy: Posthumous Children: 3d Restatement:

Answer 34

Child born within a reasonable time after death and in circumstance decedent would approve child’s right to inherit.

Question 35

Intestacy: Posthumous Children: UPa:

Answer 35

Decedent must consent in a record.

Question 36

Intestacy: Posthumous Children: California Rule: Needs:

Answer 36

• Clear and convincing evidence decedent consented in writing.
• Notice to estate within 4 months of death that posthumous reproduction is viable.
• Child needs to be in utero within 2 years of death.

Question 37

Intestacy: What is an Advancement?

Answer 37

Prepayment on Heirs estate (gift that is not an absolute gift).

Question 38

Intestacy: Rule on Advancement (how to do the math)

Answer 38

• Child trying to prove this was an absolute gift.
  1) Calculate net estate by adding value of any advancements to the assets the testator held at death.
  2) Divide net estate to appropriate share as determined by intestacy laws.
  3) Subtract the advancement from the share the person who received advancement.

Question 39

Intestacy: Advancement: What to do if the gift is more money than what is left over?

Answer 39

Do the best you can with what is left (and maybe the gift receiver gets nothing).

Question 40

Intestacy: Advancement: UPC

Answer 40

Gifts are NOT advancements unless something in writing says they are.

Question 41

Child of No one: Latin

Answer 41

Fililus Nullious