Intestacy Flashcards
Dies intestacy
Person dies without a valid will
UPC Intestacy - all decedents of descendents are descendants of surviving spouse
Surviving spouse gets 100%
UPC Intestate - No descendant is alive at time of death, but surviing parent of decedent and surviving spouse
Surviving spouse gets $300,000 + 75% of remainder
UPC Intestate - remainder of decedents issue are same as surviving spouse and surviving spouse has other issue
Surviving Spouse gets $225,000 + 50% of remainder
UPC Intestate - Decedent has issue not related to surviving spouse
Surviving spouse gets $150,000 + 50% of remainder
Community Property Rules
At death, surviving spouse is entitled to:
* This own 1/2 of CP; and
* Decedent’s 1/2 of CP
Therefore, surviving spouse takes 100% of CP
Do no apply unless specifically told to
Surviving spouse - general requirements
Generally must have been legally married to decedent
Putative Spouse Rights
As long as one party believes in goods faith in its validity, spouses are putative and qualify as spouses for inheritance purposes
UPC Surviving Spouse Reqs
- Must be legally married at time of death and
- Clear and convincing evidence that he/she outlived decedent by more than 120 hours to take by intestacy
Issue - Definition
- Children
- Grandchildren/Greatgrandchildren
Includes adopted (same as natural)
Non-Marital Children - Common Law
If born out of wedlock, she could not inherit from natural father
Non-marital children - Modern Approach
Out of wedlock child cannot inherit from natural father unless:
1. Father subsequently married her natural mother
2. Father held child as own and either received in his home or provided support
3. Paternity was proven by clear and convincing evidence after father’s death; OR
4. Paternity was adjudicated during lifetime of father by preponderance of the evidence
Calculating Shares - methods
- Per capita at Each Generation (UPC)
- Per capita with Representation
- Per Stirpes
Per Capita with Representation
Divide the Property equally at the first generation where a member surivives the decedent
Per Stirpes
Issue Take in Equal Shares regardless if anyone in that generation surives
Per Capita at each Generation
- Divide the property into equal shares at the first generation where there is a surviving member
- This is all about who has issue
- Go to first surviving generation, divide equally between SURVIVORS and THOSE WITH ISSUE (even if dead)
- Divide between those, then distributed per share to issue of each individual’s share
No Suriving Spouse or Descendents - UPC Approach
- To decedent’s parents or surviving parent
- Descendent of decedents parents
- Maternal and paternal grandparents (1/2 to each) or descendent of grandparents if both deceased
- Nearest maternal/paternal relative
- Estate excheats to the estate
