Intestacy

Question 1

Under the Uniform Probate Code (UPC) does a surviving spouse take the entire estate?

Answer 1

Yes, if all decedent’s descendants are also descendants of the surviving spouse.

Question 2

If all decedent’s descendants are not also descendants of the surviving spouse, how is the decedent’s estate allocated?

Answer 2

Only a Surviving parent of Decedent: Surviving spouse (SS) takes 300,000 and 75% of the remainder estate

All of Decedent’s issues are SS’s issues and SS has no other issues: SS takes 225,000 and 50% of remainder estate

Decedent has issue not related to SS: SS takes 150,000 and 50% of the remainder of the estate

Question 3

What is community property (CP)?

Answer 3

All property acquired during the marriage that is not gifted, inherited, or devised to only one spouse.

Question 4

T/F Community property is jointly owned by both spouses?

Answer 4

True

Question 5

How is Community Property divided intestate?

Answer 5

divided equally (50/50). So intestate, SS owns 50% of community property outright, then 50% of Decedent’s CP is given to SS, and D’s separate property is then distributed pursuant to the general intestacy scheme.

Question 6

What is the marriage requirement for a surviving spouse (SS)?

Answer 6

The spouses needed to be legally married

Question 7

Define Putative Spouse

Answer 7

qualifies as marriage requirement if the spouse believes in good faith in the validity of an invalid marriage

Question 8

When are spouses separated?

Answer 8

Spouses are separated at the issuance of a final dissolution decree

Question 9

What is the survival requirement?

Answer 9

A SS or other heir must survive the Decedent to inherit or take under a will

Question 10

Define Common Law Survival Requirement?

Answer 10

Must have survived D for any length of time

Question 11

Define the Uniform Simultaneous Death Act (USDA) Survival Requirement

Answer 11

120-hour rule: must have survived D by 120 hours

Note: If there is insufficient evidence of order of death - the property of each individual passes as though the other individual predeceased him

Question 12

How do you determine death under the Common Law versus the Modern Standard

Answer 12

Common law - irreversible cessation of circulatory and respiratory functions

Modern Standard - Brain death (No established criteria)

Question 13

Who has the burden of proof in for survival requirements? and what is the Common law vs USDA burdens?

Answer 13

The party whose claim depends on survivorship has the burden of proof

Common Law - preponderance of the evidence

USDA - clear and convincing evidence

Question 14

Define Issue(s) for Intestate succession?

Answer 14

all lineal descendants, including children, grandchildren, great-grandchildren, etc.

Question 15

Is there a presumption that a child of married parents is the child of those parents?

Answer 15

Yes, presumed to be the natural child of the parties to the marriage.

Question 16

A child born after the death of the father (posthumously-born) has what kind of presumption?

Answer 16

Rebuttable presumption, if the child was born within 280 days of the Father’s death

Question 17

When a will references to “child”, does that include adopted children?

Answer 17

Yes, treated like biological child for inheritance purposes

Exception for stepparents

Question 18

What is the step parent exception to the Adopted-child rule?

Answer 18

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 if 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

**Basically, just because the stepparent adopts the child, does not mean that child can’t inherit from both genetic parents too and the genetic parent married to the stepparent can still inherit under the will of the stepparent

Question 19

Does a child to a foster parents or stepparents generally have inheritance rights?

Answer 19

Nope, unless through equitable adoption

Question 20

What is equitable adoption?

Answer 20

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 21

Can an equitable parent inherit through a child?

Answer 21

NO.

Question 22

Are the inheritance rights between the child and the genetic parents affected by an equitable adoption?

Answer 22

NO.

Question 23

When can a child born our of wedlock inherit from the natural father under the modern trend?

Answer 23

The child cannot inherit from the natural father unless:
- The father subsequently married the natural mother
- The father held the child out as 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 24

When can a child born our of wedlock inherit from the natural father under the Uniform Parentage Act (UPA)?

Answer 24

The UPA requires proof of paternity for a child to inherit:

• When the father holds a child out as his own - presumption of paternity, the child can bring an action to establish paternity at any time
• Otherwise, no presumption and the child must bring an action to establish paternity within 3 years of reaching the age of majority

Question 25

Calculating Shares: Per Capita with Representation - How are interest divided?

Answer 25

Divided equally among the first generation with one surviving member.

the share of a non-living member of that generation passes to the living issue of that member

the non-living member with no living issue has no property allocated

Question 26

Calculating Share: Per Stirpes

Answer 26

issue equally share the portion that the deceased ancestor would have taken if living

the estate is divided into the total number of children of the ancestor who survive or leave issue who survive

Question 27

Calculating Share: Per Capita at each Generation

Answer 27

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

Question 28

Define Negative Inheritance

Answer 28

to disinherit an heir through properly executed will

Question 29

When is the ancestors and remote collateral rule applied?

Answer 29

When there is no SS or descendants

Question 30

What are the three Ancestors or Remote Collateral approaches?

Answer 30

1) Parentelic (UPC)
2) Degree-of-relationship approach
3) Combined approach

Question 31

Define Parentelic (UPC) approach

Answer 31

follows collateral lines until a live taker is found, Decedent’s property is distributed within the taker’s parentelic line as follows:

• D’s parents equally if both survive or all to surviving parent
• Then to Descendants of one of D’s parents (sibling)
• Then to descendants of D’s deceased grandparents (aunt or uncle - niece/nephew)
• Then to nearest maternal/paternal relative
• Finally, D’s estate escheats to state

Question 32

Define Degree-of-Relationship approach?

Answer 32

calculated by counting the number of relatives between the living taker and the D using the closest common ancestor

Question 33

Define the Combined Approach

Answer 33

those in a closer collateral line take to the exclusion of those in a more remote collateral line