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Trusts & Estates > Intestacy > Flashcards

Intestacy Flashcards

1
Q

what are the two focuses of intestacy law?

A

(1) family protection and (2) carry out the probable intent of the decedent

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2
Q

what is impartial intestacy?

A

when the will is poorly drafted so that it only disposes of part of a probate estate

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3
Q

what is total intestacy?

A

when the will is totally invalidated

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4
Q

when are heirs determined?

A

at the moment of death

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5
Q

Under UPC 2-102, when does SS get the entire estate as his/her intestate share?

A

When all D’s descendants are also SS’s descendants, SS had no other descendants, and D has no surviving parents. SS takes entire estate to exclusion of D’s descendant’s.

note: not the majority rule

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6
Q

what is the majority rule on the SS’s intestate share?

A

SS receives at least 1/2 share of D’s estate

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7
Q

under the UPC, does a SS take D’s entire estate as an intestate share if D had a child from another relationship?

A

no b/c we can’t assume SS will take care of the spouts child with someone else (will not trickle down)

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8
Q

what is the general rule on simultaneous death?

A

a person succeeds to D’s property only if the person survives D for an instant of time

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9
Q

Under the UPC, how much longer must a person survive in order to be considered “survived” for the purpose of succeeding to an intestate share?

A

120 hours (5 days) unless drafted otherwise in will

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10
Q

what is the separate martial property system?

A
  • where spouses own separately all the earnings and acquisitions during the marriage unless they agree to a joint form of ownership
  • based on “earner is owner”
  • has the ES to protect the non-earner from taking nothing and being provided for
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11
Q

what is the community martial property system?

A
  • marriage is seen as a partnership
  • anything bought during the marriage with the earning of either spouse is deemed to be owned in equal, undivided shares
  • applies in only 9 states
  • no elective share b/c SS automatically takes 50% share
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12
Q

what is a homestead right?

A

a right of a surviving spouse and minor children to secure the family home free from creditor’s claims

  • usually too small
  • UPC recommends $22,500
  • limited period of time
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13
Q

what is personal property set aside?

A

a right of a SS as to certain of D’s tangible personal property up to a certain value which is exempt from creditor’s claims

  • regardless of what the will says
  • ES usually on top of this
  • not all states have
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14
Q

what choice must SS make concerning the ES?

A

whether to (1) take under D’s will OR (2) renounce the will and take a fractional share of D’s estate

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15
Q

Under the UPC & Majority view, must SS take a life estate interest?

A

-No, can renounce and the value of the LE will be subtracted from the value of the ES

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16
Q

Under UPC and majority view, when must the right of election be exercised by SS to get the ES?

A

-during SS’s life

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17
Q

under UPC, if SS is incompetent to take the ES, what happens?

A

it is put into a custodial trust for the SS

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18
Q

does the ES only include probate property?

A

no, can also include non-probate property, especially if the decedent retained the power to revoke during life

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19
Q

does the SS’s intestate share or ES usually yield a higher amount?

A

ES

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20
Q

when is the ES available?

A

always, even when there is a will

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21
Q

if you see a post martial will, is the omitted spouse share an option?

A

no, the committed spouse share is only available to SS if there is a pre-marital will

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22
Q

definition of issue

A

a person’s lineal descendants consisting of children, grandchildren, and so forth

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23
Q

definition of ancestors

A

a person’s parents, grandparents, and so forth up through prior generations (lineal ascendants)

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24
Q

definition of collateral relatives

A

a person’s blood relations (aka consanguinity) other than issue or ancestors

  • first line = brothers, sisters, nephews, nieces
  • second line = aunts, uncles, cousins
25
Q

definition of representation

A

If D has a predeceased child, states provided that the child’s descendants shall represent the child (per stripes) and divide the child’s share amongst themselves

26
Q

what are the 2 general rules on per stripes?

A
  1. children take nothing if their parent is living

2. spouses or in-laws do not take

27
Q

for English per stirpes, where do you make the first division of the decedent’s property?

A

at the first generation of descendants REGARDLESS of whether there are any live takers or not

28
Q

For modern per stripes, where do you make the first division of property?

A

At the first generation where there is a live taker

29
Q

modern per stirpes

A

Make the first division of the decedent’s property at the first generation where there is a live taker, and then the shares drop by bloodline

30
Q

per capita approach at each generation approach to representation

A

always make the first division of the decedent’s property at the first generation where there is a live taker, and the dropping of shares drop by pooling

31
Q

which approach to representation does the UPC follow?

A

the per capita at each generation approach

-goal = all descendents at a generation will take equally

32
Q

under the UPC, how is a specifically disinherited heir treated?

A

as being predeceased

33
Q

Under the UPC, can D intentionally disinherit his/her children?

A

Yes

34
Q

general rule on who the adopted child can inherit from

A

adopted child inherits only from adoptive parents and their relatives

35
Q

UPC’s rule on adopted children intestate inheritance

A
  • inheritence rights if parent child relationship
  • parent child relationship exists b/t adoptive child and adoptive parents
  • no relationship b/t adopted child and child’s genetic parents subject to exceptions

Exception: adopted kids can still inherit through the relatives of other genetic parents but not vice versa

36
Q

what is the majority rule on whether adults can be adopted?

A

adults can be adopted (no distinction from child)

-Exceptions: if spouse or lover, may be disallowed

37
Q

definition of posthumous child

A

child conceived before but born after, D’s death

38
Q

can a posthumous child inherit from D even though D died before birth?

A

Yes, assuming D is the father

-UPA: if born within 300 days of D’s death, rebuttable presumption that D is the father

39
Q

does UPC use martial presumption in terms of non marital children?

A

no, UPC states that a parent child relationship automatically exists b/t a child and its genetic parents regardless of the parent’s marital status

40
Q

in most states, how long is the SOL to get a paternity test done after the death of D?

A

one year

41
Q

under UPC, does a parent-child relationship exist b/t the child’s gestational carrier and child?

A

No unless gestational is designated as parent in a court order or a parent-child relationship does not exist under this section with an individual other than the gestational carrier (UPC 2-121)

note: not the majority rule

42
Q

what the the general rule and exception regarding posthumously conceived children and their intestate rights? UPC

A

Post humously conceived children do not get the intestate share unless SS can show by written consent or clear and convincing evidence that D consenting to such reproduction

43
Q

under common law, is a lifetime gift presumed to be an advancement?

A

yes

44
Q

under the UPC, is a lifetime gift considered to be an advancement?

A

no unless it is stated in writing

45
Q

guardianship of a minor child

A
  • represents the child’s interest and makes decisions on their behalf
  • usually ends when child is 18
  • can name guardian will - court will take into consideration
  • has no authority of a minor’s property unless they are designated as such
  • guardianship of property has authority over the minor’s property (expensive b/c of judicial oversight)
46
Q

conservatorship

A

a guardian of property with investment power similar to those of trustees, more flexible than guardianship

47
Q

custodianship

A

a person who is given property to hold for the benefit of a minor under the UTMA or UGMA (is a certain way to tile property)

48
Q

what is the majority view on the omitted child’s share?

A

if the presumption that the failure to provide for the new child was not intentional is not rebutted, the typical omitted child statue gives the omitted child his or her intestate share of the testator’s probate estate

49
Q

UPC view of omitted child’s share

A

protects only after born or after adopted; no EE if it appears intentional or the child was provided for through non probate. Exception: EE admitted to show T intended non probate transfer to preclude pretermitted share

50
Q

Under UPC, if D dies intestate w/ no SS, surviving descendants, or surviving parents what happens?

A

D’s estate passes to descendants of D’s parents and the issue of such descendants and then distribute property per capita. If no parents, can go up to grandparents and their descendants but no higher.

51
Q

Under UPC and 1/3 of states, when do step children take (intestacy)

A

when there are no surviving grandparents, descendants of grandparents or close kin

52
Q

How does the UPC (and majority) treat half bloods?

A

the same as a relative of whole blood

53
Q

how is the killer treated under the slayer statutes (majority rule)

A

as having predeceased the victim

54
Q

how is the killer treated under the slayer statutes (UPC)

A

Killer is treated as having disclaimed the intestate share.

55
Q

Under UPC, is a conviction required for the slayer statutes to apply?

A

No, although a criminal conviction is conclusive, in absence of conviction, preponderance of the evidence that the individual is criminal accountable for the killing

56
Q

if you disclaim your share, how are you treated?

A

as having predeceased

57
Q

under the UPC, what to what event does disclaim relate back to?

A

D’s death

58
Q

Under the UPC, can you put a specific disclaimer scheme in place in a will or trust?

A

Yes and it will override the statuary disclaimer scheme

Trusts & Estates (2 decks)

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