Intestacy

Question 1

What is intestate succession

Answer 1

Intestate succession involves the distribution of a decedent’s assets that are not disposed of by will

Question 2

When does intestate succession arise

Answer 2

1) Decedent dies without a will
2) Decedent’s will does not dispose of all of her property
- E.g., a gift in the will fails or the will lacks a residuary clause
3) Decedent’s will is denied probate
- E.g., will is successfully contested or improperly executed

Question 3

“Heir” vs. “beneficiary”

Answer 3

heir is one who takes by intestate succession; beneficiary is one named in a will or trust

Question 4

“Issue” and “descendants”

Answer 4

often used interchangeably to describe heirs or descendants of decedent

Question 5

“Gifts,” “devises,” and “bequests”

Answer 5

used interchangeably to refer to property disposed of via a will, but technically:
- devise = real property
- bequest = personal property
- legacy = money

Question 6

“estate”

Answer 6

roughly refers to property decedent owned upon death

Question 7

what happens if a person dies intestate and is survived by spouse but no descendants

Answer 7

Surviving spouse inherits entire estate

Some states provide a certain portion to decedent’s parents and parent’s issue (i.e., decedent’s siblings)

Question 8

what happens when person dies intestate and is not survived by spouse

Answer 8

decedent’s surviving descendants inherit entire estate

Question 9

what happens if a person dies intestate and is survived by spouse AND descendants

Answer 9

surviving spouse inherits one-half or one-third of decedent’s estate, with remainder to surviving descendants (e.g., children)

Uniform Probate Code (“UPC”) — if decedent’s descendants are also surviving spouse’s descendants, entire estate goes to surviving spouse

Question 10

what happens when person dies intestate and is not survived by spouse or descendants

Answer 10

decedent’s surviving parents inherit entire estate

If no surviving parents — descendants of decedent’s parents (e.g., decedent’s siblings) inherit
- I.e., decedent’s estate would go to siblings, then nieces and nephews, and continue down family line until there is a taker

First it goes up, then sideways, then diagonal

Question 11

when decedent’s estate passes intestate to only their descendant’s bc no suriviving spouse, how is distribution determined

Answer 11

Per Capita w/ Representation (majority of states)
Per capita at each generation (UPC + growing number of states)

Question 12

how does per capita w/ representation work to distribute decedent’s estate to their descendants

Answer 12

• Divided at first generation with living takers — estate divided into equal shares at the first generation at which there are living takers
• Each living person takes a share and each share of a deceased person at that level passes to her descendants

Question 13

how does per capita at each generation work to distribute decedent’s estate to their descendants

Answer 13

Divided at first generation with living takers, but shares of deceased are combined and divided equally among takers at the next level
Avoids situations where takers are penalized for having a bigger family

Question 14

how do adopted children factor into instestate succession

Answer 14

treated the same as a natural child for purposes of intestate succession

Cuts off adoptee’s inheritance rights from his natural parents
- Exception — adoption by spouse of a natural parent
- Does not cut off adoptee’s inheritance rights with respect to the natural parent whose spouse adopted the child

Question 15

how do step/foster children factor into instestate succession

Answer 15

generally have no inheritance rights

Exception — adoption by estoppel
- A stepchild or foster child can inherit from or through a step/foster parent as though they were legally adopted where step/foster parent gains custody under an agreement with natural parents to adopt the child

Question 16

how do non-marital children factor into instestate succession

Answer 16

all states permit inheritance from the mother

Inheritance from father is permitted if paternity is established

Question 17

how do posthumous children factor into instestate succession

Answer 17

a child in gestation at the time of decedent’s death inherits as if they were born during decedent’s lifetime

Question 18

what happens if the heir/beneficiary dies at the same time as the decedent

Answer 18

Two approaches — most states use one of the following two rules:
1) Uniform Simultaneous Death Act (USDA) — property passes as though the beneficiary/heir died before the decedent unless there is sufficient evidence decedent died first
- Applies to distributions of property by any means, including will, joint tenancy, intestate succession, etc.

2) 120-hour rule — beneficiary/heir is only treated as having survived decedent if there is clear evidence that she survived by 120 hours or more (i.e., five days)

Question 19

what happens if the beneficiary/heir caused the decedent’s death

Answer 19

they’re cooked don’t get anything, property passes as if though they predeceased the decedent

Question 20

what happens when a person doesn’t want what would pass to them from the decedent

Answer 20

It’s called a Disclaimer — one may disclaim an interest that otherwise would pass to them from a decedent or decedent’s estate

Requirements — for fed. tax purposes, disclaimer must be in writing, irrevocable, and filed within nine months of decedent’s death
- States may impose additional requirements, although most are satisfied by compliance with fed. requirements

Effect — interest passes as if the disclaiming party predeceased decedent
Note: applies to wills also

Question 21

what is an advancement from the decedent to an heir/beneficiary

Answer 21

Gifts made during testator or decedent’s life with the intent that the gift be applied against any share the heir or beneficiary inherits from decedent/testator’s estate

Common law — gifts were automatically deducted from beneficiary/heir’s remaining interest
Modern requirement — in most states, gifts to beneficiary/heir during testator/decedent’s life are advancements only if either:
- Decedent declared her intent to make the gift an advancement in a contemporaneous writing, or
- Beneficiary/heir acknowledged the gift to be an advancement in writing

Note: applies to wills also