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MEE - Wills and Decedent's Estates - Bar > Intestacy > Flashcards

Intestacy Flashcards

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1
Q

What is intestacy?

A

It is the default statutory distribution scheme that applies when an individual dies without have effectively disposed of all of his property through non probate instruments OR a valid will.

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2
Q

Who does intestacy favor?

A

Decedent’s surviving spouse.

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3
Q

Who are heirs?

A

The individuals who are entitled to the property of a decedent who dies intestate.

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4
Q

Under the Uniform Probate Code, how much does the surviving spouse get through intestacy when
-> all of the decedent’s (D) descendants are also descendants of SS, and SS has no other descendants
OR
-> decedent has SS, but no descendants or parents?

A

SS gets
-> the entire estate of the decedent

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5
Q

Under the Uniform Probate Code, how much does the surviving spouse get through intestacy when
-> no descendant of D survive, but D has a surviving parent?

A

SS takes
-> $300,000 and 75% of the remainder of the estate

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6
Q

Under the Uniform Probate Code, how much does the surviving spouse get through intestacy when
-> all of D’s issue are also issue of SS, and SS has other issue

A

SS gets
-> $225,000 and 50% of the remainder of the estate

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7
Q

Under the Uniform Probate Code, how much does the surviving spouse get through intestacy when
-> D has issue not related to SS

A

SS gets
-> $150,000 and 50% of the remainder of the estate

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8
Q

What does the Uniform Probate Code assume the jurisdiction doesn’t recognize?

A

Community Property

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9
Q

What is community property?

A

All property acquired during he marriage is jointly owned by both spouses UNLESS it is gift, inheritance, or devise given to only one spouse.

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10
Q

How is community property divided? What does this mean for SS?

A

It’s equally dividid, meaning that SS gets 50% of the CP outright

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11
Q

How does community property work (CP) if D dies intestate?

A

If D dies intestate, THEN
-> D’s 50% of CP is given to SS (meaning SS gets all the CP)
AND
-> D’s separate property (SP) is then distributed pursuant to the general intestacy scheme

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12
Q

How does the marriage requirement for a person to be an SS?

A

SS must have been legally married to D.

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13
Q

What happens if the marriage was actually invalid, how does it impact an SS?

A

SS can qualify as a probative spouse if the spouse BELIEVES in GOOD FAITH in the validity of the invalid marriage

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14
Q

When is an SS no longer considered married to a D?

A

Spouses are still married until the issuance of a FINAL DISSOLUTION decree.

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15
Q

What is required of the SS and/or other heirs to inherit D’s estate?

A

They must survive D.

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16
Q

How long must a person survive D in order to inherit from D’s estate?
-> CL
-> Uniform Simultaneous Death Act (USDA)

A

CL
-> must have survived D for any length of time

Uniform Simultaneous Death Act
-> must have survived D by 120 hours

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17
Q

What happens under the USDA if there is insufficient evidence of order of the death?

A

The property of each individual passes AS THOUGH the other individual predeceased him.

Aka -> you assume that other party’s died before you so they don’t get it.

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18
Q

How do you determine death under CL and what is the modern trend?

A

CL
-> irreversible cessation of circulatory and respiratory functions

Modern trend
-> brain death (for which there are no established criteria)

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19
Q

What is the burden of proof to show survivorship under the CL and USDA, and who has the burden of proof?

A

Burden of proof lies on the party whose claim depends on survivorship.

Burdens of proof:
CL
-> preponderance of the evidence
USDA
-> clear and convincing evidence

20
Q

What is a person’s “issue”?

A

A D’s issue includes all lineal descendants such as:
-> children
-> grandchildren
-> great-grandchildren

21
Q

Under married parents , what is presumed of the child?

A

It is presumed that the child is the natural child of the parties to the marriage.

22
Q

What is a posthumously-born child?

What is presumed of such a child?

A

A child conceived prior to the deceased husband’s death but born AFTER the deceased husband’s death.

There is a rebuttable presumption that:
-> the child is the child of the deceased husband if the child is born within 280 days of his death.

Note: Most states follow USCAC which states there is no rebuttable presumption to begin with.

23
Q

How do you refer to an adopted child in the will?

How is an adopted child treated for inheritance purposes?

A

References in the will to “child” includes an adopted child.

Treated like a biological child for inheritance purposes.

24
Q

Does the adopted child have inheritance rights between themselves and their genetic parents?

Is there an exception to this?

A

No.

The stepparent exception exists
-> an adoption by a stepparent establishes a parent-child relationship between the stepparent and the child (WITH FULL INHERITANCE RIGHTS)
BUT
-> DOES NOT curtail the parent-child relationship of the genetic parent who is married to the stepparent
NOR
-> the right of the adoptee (or a descendant of the adoptee) to inherit from or through the other genetic parent who is not married to the stepparent

25
Q

What is the general rule with regard to foster parents and stepparents in terms of inheritance rights with a child?

A

Generally, no inheritance rights between a child and a foster parent or stepparent.

26
Q

What is an equitable adoption?

A

An equitable adoption happens when two situations arise in which they treat foster parents and stepparents as adoptive parents for the purpose of inheritance?

27
Q

Under what situation are foster parents and stepparents treated as adoptive parents for the purpose of inheritance?

A

Two situations give rise to this
-> a relationship started during the child’s minority and established by clear and convincing evidence that a legal barrier prevented adoption
OR
-> a foster parent agreed with the genetic parents to adopt the child and the foster parent treated the child as his own.

28
Q

What is the effects of an equitable adoption?

A

Three effects
-> the child can only inherit from (not through) the equitable adoptive parent
-> equitable parents cannot inherit through or from the child (aka it’s a one way street)
-> inheritance rights between the child and the genetic parents ARE NOT affected

29
Q

What does it mean “the child can only inherit from (not through) the equitable adoptive parent”?

A

Child can inherit directly from equitable parent but not equitable parent’s parents.

30
Q

What is a half-blood?

How are half-bloods treated?

A

A person who only shared one common parent.

Same as whole-bloods.

31
Q

When can children born out of wedlock inherit from the natural father?

A

Generally they can’t but the modern trend has made it that they can when
-> the father subsequently married the natural mother
-> the father held the child out has his own and lived with the child or provided support
-> paternity is proven by clear and convincing evidence after the father’s death
OR
-> paternity is adjudicated during the father’s lifetime by a preponderance of the evidence

32
Q

What proof from the child does the Uniform Parentage Act require in order for the child to inherit?

When is paternity presumed?

When can a child bring an action to establish paternity?

What happens to the presumption of paternity when a father doesn’t hold a child out at his own? What must the child do?

A

Proof of paternity.

Paternity is premised when a father holds a child out as his own.

Can bring an action to establish paternity at any time.

There is no presumption of paternity. The child must bring an action within three years of reaching the age of majority.

33
Q

Under the Uniform States of Children of Assisted Conception (USCAC), is a posthumously-conceived child recognized as the child of the deceased parent?

Do most states follow this act?

A

No the child is not recognized as the child of the deceased parent.

Most states follow this act, so don’t follow the rebuttable presumption if born within 280 days of father’s death.

34
Q

What are the three ways of calculating shares?

A

Three ways
-> per capita with representation
-> per stripes
-> per capita at each generation

35
Q

How does calculation of shares works under a per capita with representation system?

A

Property is divided equally among the first generation where there is at least one living member.
-> if there are no living members in this first generation THEN you go to the subsequent generation

The share of a non-living member of that generation PASSES to the living issue of that member
-> meaning that as long as there is one person alive in the generation, then all the dead people will get their share BUT it will go to their living heirs

IF there is a non-living member WITH NO living issue in that generation THEN no property is allocated to the non-living member
-> makes sense because if they’re dead and they have no surviving heirs, then where can the inheritance go

36
Q

How does calculation of shares works under a per stripes system?

A

Issue equally share the portion that the deceased ancestor would have taken IF living.
-> if your deceased ancestor would get X if they were living then you get X
-> if the issue has to split with another issue what the deceased ancestor would get then both issues get a split of the deceased ancestor’s share

The estate is first divided into the total number of children the ancestor who survive OR leave issue who survive.
-> meaning if one of the deceased children of the deceased ancestor have no living issue then they get nothing
-> makes sense because once again where would the estate go

37
Q

How does calculation of shares works under a per capita at each generation?

A

Property is divided into as many equal shares as there are living members of the nearest generation of issue AND deceased members of that generation with living issue.
-> however the living members will take the equal shares, and the remainder shares will be equally divided among the living issues from the deceased members of that generation

E.g. A dies and has two 3 children, B, C, and D. All three are dead so we don’t look at this generation (aka the first generation).
-> In the “second generation” B had one child E. C had one child F. D had three children who are G, H, and I.
—-> In this generation, E, and G are dead, BUT have living issues. F and H are alive. I is dead BUT has NO living issue.
——–> SO we divide A’s estate into 1/4 parts in which F and H both get 1/4. I gets nothing because I has no living issue so he isn’t even considered in the calculation.
————> The remaining unclaimed 1/2 is divided equally amongst the living issues of E and G. Note: We are down in the “third generation” now.

38
Q

What is a negative inheritance?

A

Under CL, the only way for an individual to disinherit an heir was to execute a will disposing of all of his property, because any property not do disposed of could potentially pass to that heir through intestacy.

39
Q

How does the UPC achieve this same goal of a negative inheritance but differently?

A

The UPC allows an individual to disinherit an heir by properly executing a will expressing such intent,
-> EVEN IF not all property is disposed of within the will.

The barred heir is then treated as having predeceased the decedent.

40
Q

When do we look at ancestors and remote collaterals?

A

We look at these two groups when there is no SS or descendant.

41
Q

Who can be an ancestor of a decedent?

A

-> parents
-> grandparents
AND
-> great-grandparents

42
Q

Who can be a remote collateral relative of decedent?

A

Remote relatives related to the decedent through a common ancestor such as
-> siblings
-> cousins
-> aunts
AND
-> uncles

43
Q

What are the three ways to determine which ancestors or remote collateral relatives get D’s estate when D doesn’t have an SS or descendants?

A

Three approaches are:
-> parentelic approach
-> degree-of-relationship approach
-> combined approach

44
Q

Which body of law adopted the Parentelic Approach?

What does the parentelic approach follow?

A

Adopted by the Uniform Probate Code

The parentelic approach follows collateral lines until a live taker is found.
-> at which point the decedent’s property is distributed within that taker’s parentelic line.

45
Q

Under the parentelic approach, what is the order the estate follows if there is no surviving spouse or descendant?

A

START WITH
-> D’s parents equally if both survive D, OR all to the surviving parent if only one survives
THEN
-> to descendants of D’s deceased parents
THEN
-> to D’s living maternal/paternal grandparents
THEN
-> to descendants of D’s deceased grandparents
THEN
-> to D’s nearest maternal/paternal relative
FINALLY
-> D’s estate escheats to the state

46
Q

How does the degree-of-relationship approach work?

A

The degree-of-relationship approach results in those with closer degrees of relationship to the D taking to the exclusion of more remote relatives.

The degree of relationship is calculated by counting the number of relatives between the living taker and the D using the closest common ancestor.

47
Q

How does the combined approach work?

A

The parentelic approach is used as a tiebreaker in the event that the degree-of-relationship approach results in a tie between multiple living takers sharing the same lowest degree of relationship.
-> those in the closer collateral line take to the exclusion of those in the more remote collateral line

MEE - Wills and Decedent's Estates - Bar (10 decks)

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