Intestacy

Question 1

UPC 2-102 Share of spouse

Answer 1

Determines the hierarch of distribution

Question 2

Surviving spouse, no kids, no parents

Answer 2

All to SS

Question 3

(UPC 2-102) Surviving spouse, yes did, all belong to both SS and decedent

Answer 3

All to SS

Question 4

(UPC 2-102) Surviving spouse, yes kids, and SS has other kids

Answer 4

First $225K to SS, plus 1/2 of the remainder to kids, and 1/2 of the remainder to SS

Question 5

(UPC 2-102) Surviving spouse, yes kids, kids are not SS

Answer 5

First $150K to SS, plus 1/2 of the remainder to SS, 1/2 of the remainder to kids

Question 6

(UPC 2-102) Surviving spouse, no kids, yes parents

Answer 6

First $300K to SS, 3/4 to SS, 1/4 to parents

Question 7

If no surviving spouse…

Answer 7

then to kids

Question 8

Laughing Hiers

Answer 8

a) Are relatives who are so remotely related to the decedent that they didn’t even know decedent

Question 9

UPC’s position on laughing heirs

Answer 9

Laughing heirs are those which do not fit into the category of:

(a) Grandparents, OR
(b) Descendants of grandparents

Question 10

If there are no heirs

Answer 10

Property will escheat to the state (UPC 2-105)

Question 11

Simultaneous Death (Common law rule)

Answer 11

An heir had only survive his benefactor by one instant in time to qualify as a taker

Question 12

Simultaneous Death (120 hour/5 day rule)

Answer 12

a) In order to inherit, an heir would have to survive the benefactor by 120 hours (or 5 days) – (the uniform simultaneous death act was amended and become this)
b) 120-Hour addresses contemporaneous death even if they do not arise from a common disaster

Applicable standard: clear and convincing evidence

Failure to meet the rule = predeceased the benefactor

Question 13

Adopted children

Answer 13

Take from adoptive parents only

i. Once a child is adopted, the rights of both the natural parents and relatives are terminated.

UPC

i. Adoptive children take from their adopted parents only UNLESS that child has been adopted by the spouse of a natural parent
(a) The child may inherit from both natural parents and from adoptive paretns

Question 14

Adult adoption

Answer 14

Rules vary from state to state

Adult children are not entitled to inherit from a 3 party who is a “stranger to the adoption”

Question 15

Who is a “stranger to the adoption?”

Answer 15

UUGA

Unaware parties — those who are unaware they have an adult heir

U — uncles

G — grandparents

A — aunts

Question 16

Why adopt can adult?

Answer 16

a) To protect a same-sex couple
b) Step-children whose natural parent wouldn’t give consent to adopt them when they were minors
i. Most intestacy statutes do not make a distinction between the adoption of a minor and the adoption of an adult
ii. If family members want to challenge the will, they must first gain standing by overturning the adoption
iii. Adopted child has no right to a trust that was created by parent of adoptive parent

Question 17

Non-marital children

Answer 17

The child is presumptively the child of the father, IF:

i. The father holds out the child as his own
ii. The father marries the mother either during the pregnancy or after the child is born

b) Common law → child born out of wedlock was considered “illegitimate” and could not inherit from either mother or father
c) Modern trend → a child born out of wedlock can automatically inherit from the mother.

Question 18

Posthumous chid

Answer 18

a) Any child born within 280 days of the father’s death is considered presumptively the child of that father
b) A child born after 280 days of father’s death bears the burden of proof

Question 19

Advancements (common law rule)

Answer 19

Any lifetime transfer from parent to child is presumptively considered an advancement on that child’s intestate share

The burden on proving that it was simply a gift falls on that child
(a) If child can’t prove the transfer was a gift, then it’s assumed to be an advancement

b) The transfer has to be a significant amount (i.e. it can’t be $50 or something like that)
c) The transfer has to be money or something that represents money (e.g. house, car)

Question 20

Rationale for advancements

Answer 20

The parents would want equal distribution of assets among children

Question 21

Advancements (UPC)

Answer 21

Any lifetime gift from parent to child is presumptively a gift and will not be included in the discussion of the child’s intestate share – UNLESS there is a contemporaneous writing to the contrary, signed by giver or recipient indicating otherwise

Question 22

Hotchpot

Answer 22

a) Common law rule
i. If a gift is treated as an advancement, it’s accounted for in distributing the decedent’s estate by bringing it into the hotchpot

Question 23

Calculating hotchpot

Answer 23

Step 1: Add the amount of the advancement to the total estate
(a) $10,000 + $100,000 = $110,000

Step 2: Divide the estate by the number of takers
(a) $110,000/4 = $27,500 per child

Step 3: Subtract the amount of the advancement

(a) $27,500 - $10,000 = $17,500 that A is left with
(b) If you end up with a positive number, the child should make a claim. If a claim is made, the child has to pay the money back
(c) If you end up with a negative number, the child is better off not making a claim and should take what they received in life. If a claim is not made, the child doesn’t have to pay the money back

e) If the number is negative = child should take what he received during life
f) If the number is positive = making a claim

Question 24

What is the slayer rule

Answer 24

i. Slayer rule prohibits a slayer from inheriting from their victim (i.e. husband who kills wife is prohibited from inheriting wife’s estate)
ii. Slayer statute treats the slayer as having predeceased the benefactor – IF the killing is “voluntary and felonious”

Question 25

Remedies to the slayer rule

Answer 25

i. Constructive trust — The estate is given to the slayer but only to allow the slayer to transfer the estate to someone else

Question 26

UPC’s position on the slayer rule

Answer 26

i. Bars the killer from non-probate property as well as probate property

Question 27

PA’s position on the slayer rule

Answer 27

i. Any abandoning spouse is barred from receiving under intestacy

Question 28

What does it mean to disclaim an intestate share?

Answer 28

i. When an heir or devisee refuses to take the property
ii. If you disclaim an inheritance, you’re treated as if you predeceased the decedent so the inheritance goes to your descendants

Question 29

Who is barred from disclaiming

Answer 29

Individuals who receive gov’t subsidy (like Medicaid)

Individuals who have state or federal tax lien