Intestacy

Question 1

What is intestacy?

Answer 1

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.

Question 2

Who does intestacy favor?

Answer 2

Decedent’s surviving spouse.

Question 3

Who are heirs?

Answer 3

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

Question 4

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?

Answer 4

SS gets
-> the entire estate of the decedent

Question 5

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?

Answer 5

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

Question 6

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

Answer 6

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

Question 7

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

Answer 7

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

Question 8

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

Answer 8

Community Property

Question 9

What is community property?

Answer 9

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

Question 10

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

Answer 10

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

Question 11

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

Answer 11

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

Question 12

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

Answer 12

SS must have been legally married to D.

Question 13

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

Answer 13

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

Question 14

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

Answer 14

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

Question 15

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

Answer 15

They must survive D.

Question 16

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

Answer 16

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

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

Question 17

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

Answer 17

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.

Question 18

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

Answer 18

CL
-> irreversible cessation of circulatory and respiratory functions

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

Question 19

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

Answer 19

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

Question 20

What is a person’s “issue”?

Answer 20

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

Question 21

Under married parents , what is presumed of the child?

Answer 21

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

Question 22

What is a posthumously-born child?

What is presumed of such a child?

Answer 22

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.

Question 23

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

How is an adopted child treated for inheritance purposes?

Answer 23

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

Treated like a biological child for inheritance purposes.

Question 24

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

Is there an exception to this?

Answer 24

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

Question 25

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

Answer 25

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

Question 26

What is an equitable adoption?

Answer 26

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

Question 27

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

Answer 27

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.

Question 28

What is the effects of an equitable adoption?

Answer 28

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

Question 29

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

Answer 29

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

Question 30

What is a half-blood? How are half-bloods treated?

Answer 30

A person who only shared one common parent. Same as whole-bloods.

Question 31

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

Answer 31

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

Question 32

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?

Answer 32

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.

Question 33

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?

Answer 33

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.

Question 34

What are the three ways of calculating shares?

Answer 34

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

Question 35

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

Answer 35

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

Question 36

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

Answer 36

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

Question 37

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

Answer 37

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.

Question 38

What is a negative inheritance?

Answer 38

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.

Question 39

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

Answer 39

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.

Question 40

When do we look at ancestors and remote collaterals?

Answer 40

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

Question 41

Who can be an ancestor of a decedent?

Answer 41

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

Question 42

Who can be a remote collateral relative of decedent?

Answer 42

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

Question 43

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?

Answer 43

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

Question 44

Which body of law adopted the Parentelic Approach? What does the parentelic approach follow?

Answer 44

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.

Question 45

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

Answer 45

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

Question 46

How does the degree-of-relationship approach work?

Answer 46

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.

Question 47

How does the combined approach work?

Answer 47

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