Intestacy

Question 1

Any property that does NOT pass by will upon the decedent’s death…

Answer 1

will be distributed
according to the state’s applicable intestacy statutes.

Question 2

In most states, if the decedent is survived by ONLY a spouse (no descendants), the surviving spouse will inherit

Answer 2

the entire estate.

However, some states provide that a certain portion of the estate will be given to the decedent’s parents and the parents’ issues.

Question 3

In most states, if the decedent is survived by a spouse AND descendants, the surviving spouse will inherit

Answer 3

one-half or one-third of the decedent’s estate with the surviving descendants inheriting the rest.

Under the Uniform Probate Code (UPC), the surviving spouse will inherit the entire estate IF ALL of the descendants are descendants of the surviving spouse.

Question 4

In most states, if the decedent is NOT survived by a spouse,

Answer 4

the decedent’s surviving
descendants will inherit the entire estate equally.

Question 5

In most states, if the decedent is NOT survived by a spouse OR descendants,

Answer 5

the decedent’s surviving parents will inherit the entire estate equally.

If there are NO surviving parents, the descendants of the decedent’s parents will inherit the estate (i.e., the decedent’s brothers/sisters, nieces/nephews, and their descendants down the line).

Question 6

when a child predeceases a parent who later dies intestate, Three rules address how to distribute an intestate estate under these circumstances:

Answer 6

1. Strict per stirpes.
2. Modern Per Stirpes.
3. Per Capita at Each generation.

Question 7

when a child predeceases a parent who later dies intestate, what is strict per stirpes?

Answer 7

Strict Per Stirpes. Under the common law strict per stirpes approach, the estate is divided by the number of members in the first generation of children who are either alive or survived by descendants.

Each member who is alive takes their share, and the shares of the deceased members drop to the next generation. This process is repeated for the next generations until every share is taken.

Question 8

when a child predeceases a parent who later dies intestate, what is modern per stirpes?

Answer 8

Modern Per Stirpes. The modern per stirpes approach works exactly like the strict per stirpes approach, except that the estate is divided equally among the living and deceased at the first generation that has a living taker.

Question 9

when a child predeceases a parent who later dies intestate, what is per capita at each generation?

Answer 9

Per Capita at Each Generation. Under the UPC per capita at each generation approach, the estate is divided at the closest generation to the decedent in which one or more of the descendants are alive (similar to modern per stirpes).

However, shares of the deceased descendants on each level are added together and divided equally among all representatives of the deceased descendants in the next generation level (shares are dropped by “pooling” method).

Question 10

adopted children are entitled to

Answer 10

receive the same share, under intestacy laws, as biological children. (though at common law, only blood relatives were).

Question 11

What is equitable adoption?

Answer 11

In some states, a child may be informally adopted through adoption by estoppel when a person takes a child in and assumes parental responsibilities. If such a surviving child can establish an adoption by estoppel, equity holds that she can inherit from the decedent as if she were a legally adopted child. Courts consider several factors when determining whether a relationship constitutes an adoption by estoppel:

The parent’s bestowal of love and affection on the child;

The parent’s performance of parental duties toward the child;

The child’s obedience and companionship toward the parent;

The child’s reliance on the relationship; AND

The parent’s holding out the child as their own.

Question 12

Generally, adoption in fact or by estoppel terminates

Answer 12

the adopted child’s right to inherit from her biological parents.

However, a child adopted by her stepparent may usually inherit from her biological parents as well.

Question 13

Inheritance rights of Children Born Out-Of-Wedlock.

Answer 13

At common law, a child born out-of-wedlock was prohibited from inheriting from an intestate decedent.

Today, non-marital children may inherit from either parent so long as the facts establish a legal parent-child relationship (non-marital children inheriting from a father must first establish paternity).

Question 14

Inheritance rights of half-blood children

Answer 14

At common law, ONLY full-blood children were entitled to inherit from an intestate decedent.

Today, in almost every state, half-blood children (i.e., two people who share one parent, but not the other) are treated equally as whole-blood children.

In a minority of jurisdictions, they are treated less favorably and sometimes excluded if whole-blood kin exist.

Question 15

At common law, gifts to heirs during a testator’s lifetime were considered

Answer 15

advancements on the heir’s intestate share of the estate, and were automatically deducted from the heir’s share of the estate.

Question 16

Today, gifts to heirs during a testator’s lifetime are

Answer 16

…NOT considered advancements on
the heir’s intestate share of the estate UNLESS:

The decedent declared his intent to make the gift an advancement in a contemporaneous writing;

OR

The heir acknowledged the gift to be an advancement in writing.

Question 17

Under the initial version of the Uniform Simultaneous Death Act (USDA), where title to property depends upon priority of death – evidence of survivorship, no matter how brief in duration, is

Answer 17

sufficient to establish a sequence of death.

Under the UPC and Revised Uniform Simultaneous Death Act (RUSDA), a beneficiary is only treated as having survived the testator if there is clear and convincing evidence that the beneficiary survived the testator by 120 hours (5 days).