Intestacy Flashcards
UPC 2-102 Share of spouse
Determines the hierarch of distribution
Surviving spouse, no kids, no parents
All to SS
(UPC 2-102) Surviving spouse, yes did, all belong to both SS and decedent
All to SS
(UPC 2-102) Surviving spouse, yes kids, and SS has other kids
First $225K to SS, plus 1/2 of the remainder to kids, and 1/2 of the remainder to SS
(UPC 2-102) Surviving spouse, yes kids, kids are not SS
First $150K to SS, plus 1/2 of the remainder to SS, 1/2 of the remainder to kids
(UPC 2-102) Surviving spouse, no kids, yes parents
First $300K to SS, 3/4 to SS, 1/4 to parents
If no surviving spouse…
then to kids
Laughing Hiers
a) Are relatives who are so remotely related to the decedent that they didn’t even know decedent
UPC’s position on laughing heirs
Laughing heirs are those which do not fit into the category of:
(a) Grandparents, OR
(b) Descendants of grandparents
If there are no heirs
Property will escheat to the state (UPC 2-105)
Simultaneous Death (Common law rule)
An heir had only survive his benefactor by one instant in time to qualify as a taker
Simultaneous Death (120 hour/5 day rule)
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
Adopted children
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
Adult adoption
Rules vary from state to state
Adult children are not entitled to inherit from a 3 party who is a “stranger to the adoption”
Who is a “stranger to the adoption?”
UUGA
Unaware parties — those who are unaware they have an adult heir
U — uncles
G — grandparents
A — aunts
Why adopt can adult?
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
Non-marital children
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.
Posthumous chid
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
Advancements (common law rule)
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)
Rationale for advancements
The parents would want equal distribution of assets among children
Advancements (UPC)
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
Hotchpot
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
Calculating hotchpot
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
What is the slayer rule
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”
