Intestacy

Question 1

What is intestacy?

Answer 1

Default rules for estate disposition set by state statutes.

Question 2

When does intestacy apply?

Answer 2

Because intestacy is the default, it applies UNLESS the decedent overrides them with specific instructions. So, intestacy applies if the decedent dies without a will, the will is invalid, or the will is incomplete and doesn’t cover all of the decedent’s property.

Question 3

What is an “heir”?

Answer 3

A person who would take under the intestacy statute

Question 4

What are “ancestors”?

Answer 4

People up the line (parents, grandparents, etc.)

Question 5

What are “descendants” or “issue”?

Answer 5

People down the line (children, grandchildren, etc.)

Note: “issue” focuses more on bloodline than “descendants”

Question 6

What does “my children” mean?

Answer 6

A single generation of issue below the decedent.

Question 7

What are “collaterals”?

Answer 7

People out of the lines of ascent and descent (aunts, uncles, cousins, siblings, etc.)

Question 8

When does a person survive another?

Answer 8

120 hour (5 days) after the first person died

Question 9

What is the choice of law for real property?

Answer 9

The location (situs) of the property

Question 10

What is the choice of law for personal property?

Answer 10

The law of the decedent’s domicile

Question 11

Name three protective provisions that protect family members’ interest in an estate from creditors.

Answer 11

Homestead exemption; exempt property; support/family allowance

Question 12

Name four basic aspects of intestacy statutes.

Answer 12

1. Blood relatives are favored.
2. Focus on parentage/family lines (look down, look up)
3. Stop when you find survivors
4. Degree of relationship (closeness) matters

Question 13

How do marital and nonmarital children differ under an intestacy statute?

Answer 13

There must be a parent-child relationship, but statutes can no longer discriminate against nonmarital children. For marital children, parentage is presumed. For nonmarital children, parentage must be proved, and a parent-child relationship exists between a child and their genetic parents regardless of marital status.

Question 14

How do intestacy statutes generally treat adopted children?

Answer 14

Generally, adopted children can inherit from their adoptive parents and from their genetic parents. It’s less clear if the adoptive parents can inherit from the adopted child. Also, sometimes “equitably” adopted children are treated the same as formally adopted children.

Question 15

What are “protective provisions”?

Answer 15

The right to take assets “off the top” before creditors and other distributions.

Protective provisions are a recognition that families might need something while assets are “frozen” in probate.

Question 16

How are shares allocated under strict per stirpes?

Answer 16

Shares are divided equally at the generation closest to the decedent (even if no one in that generation is still living). Then, shares pass to any of that generation’s descendants proportionally.

Question 17

How are shares allocated per capita?

Answer 17

Shares are divided equally among all surviving descendants, regardless of generation.

Question 18

How are shares allocated per stirpes: per capita with representation?

Answer 18

Skip “empty” generations and divide equally at the generation closest to the decedent that has survivors. If anyone in that generation has died, their share is passed per stirpes.

Question 19

How are shares allocated per capita at each generation?

Answer 19

Divide equally at the first generation with surviving members, then pool remaining shares and divide equally among the next generations. This is the UPC approach, and Prof. Duvivier thinks it’s the most fair because there is equal treatment at each generation.