Intestacy

Question 1

Intestacy

Answer 1

Next step in analysis after removing property. Is there a will? If no, evaluate intestacy.

Question 2

2 ways intestacy occurs

Answer 2

a. as to the person
i. decedent died without valid will. Total intestacy
b. as to property
i. Decedent has will but doesn’t account for all property. Partial intestacy.
ii. usually wills have residual clauses. or there’s unusual fact situation that will drafter couldn’t anticipate.
iii. way to combine intestacy and wills in one question

Question 3

Theory behind inestacy

Answer 3

a. Govt decides this, so property goes to ppl society views as “proper.” Very jdxn dependant.
b. Cant be altered to fit decedent’s intent. No matter the evidence.

Question 4

Which state’s law of intestacy applies

Answer 4

Depends on type of property

i. Personal property—intestate’s domicile at death. This can be a point of location, where was intestate domiciled at death.
ii. Real property—depends on law of the situs.
iii. Marital rights
1. common law—what you earn is your own
2. Partnership—stuff is owned 50/50
3. Law of domicile acquired at time property acquired is what applies

Question 5

Foreign wills

Answer 5

admissible if executed in accordance with the law of

i. that jdxn,
ii. the state where the will was executed
iii. the T’s domicile at time of execution
iv. or the T’s domicile at death.

Question 6

Typical intestate succession order

Answer 6

a. First, passes to spouse and/or descendants
b. if none, to parents
c. if none, to descendants of parents (siblings or their kids, i.e. nieces and nephews)
d. If none, Grandparents or their descendents (split eually between paternal and maternal side)
e. If none to nearest kin (split equally between maternal and paternal side)
f. If none to the state

Question 7

Share of surviving spouse

Answer 7

iii. share of surviving spouse depends on factors like number of children and whether surviving spouse is the other parent of the DC’s children.

1. Most states, if decedent leaves heirs as well spouse, spouse takes 1/3 or ½ the estate. Rest to kids.
   UPC gives entire estate to spouse if the decedent is survived by descendants, all of whom are also descedants of the surviving spouse.
2. Most states, if no descendants, spouse takes entire estate.
   a. UPC—spouse takes whole estate only if no descendants AND no parents.

Can depend on factors like

iv. Length of marriage
v. Dollar amount
vi. Dollar amount + fraction

Question 8

Share of descendants

Answer 8

next step after spouse.

a. Generally, descendants are related to decedent in descending lineal line, e.g. children and grandkids
b. they receive all of intestate’s property that doesn’t pass to surviving spouse
i. If all children are still alive after intestate dies, or all of the dead children have no descendants who survive- each kid gets equal share.
1. grandchild cannot share if older generation still alive

Question 9

Share of descendants if at least one child died and is survived by a grandchild - MAJORITY VIEW

Answer 9

b. Per capita with representation (modern per stirpes) Majority rule
i. Divides into shares at first generation with survivors.
ii. If all children are deceased and all property going to grandkids, each grandkid takes an equal share rather than dividing the share that the parent would have taken had the parent survived.
iii. still leads to inequality amongst people of same generation

Question 10

Share of descendants if at least one child died and is survived by a grandchild - PER STRIPES

Answer 10

(by right of representation)
i. One share for each bloodline/ branch of family tree. Divide into shares at first generation below decedent even if no child surviving. One share for each surviving child and one share for each deceased child who gave decedent grandkids.

Question 11

Share of descendants if at least one child died and is survived by a grandchild - PER CAPITA AT EACH GEN (MODERN VIEW)

Answer 11

c. Per capita at each generation (most modern) – divide into shares at first gen with survivors but then gives all equally related person the same share. Thus each child takes an equal share but remaining property is pooled and each grandkid will receive equal share

Question 12

Anscestors and Collaterals

Answer 12

IF THERE ARE NO DESCENDANTS

a. Anscestors (parents, grandparents) and collaterals (all other related) can take

b. Parents and first-line collaterals (i.e. descendants of parents)
i. If both parents survive—each parent receives half
ii. if one parent died and there are other collaterals (siblings, e.g.)
1. some states give entire estate to surviving parent
2. some states give ½ to surviving parent and one-half to the first-line collaterals
iii. if no parent and at least one sibling or descendant of sibling survive
1. all property divided among first-line collaterals

c. Grandparents, second line collaterals and more distant relative–> passes according to state law

Some states cut off inheritance at a predetermined level (e.g., descendants of grandparents) while other states look to more distant relatives to locate heirs.

d. Some states look for heirs forever.
i. some states give escheat to state government. cut off inheritance.

Question 13

Treatment of Adopted Children

Answer 13

ii. inheritance rights of adopted child vis a vis biological parents
1. some states, once adopted you’re cut out from biological parents. some states you get from all of them.
iv. biological parents do not take from adopted child

iii. Inheritance rights of adoptive parents
1. parents by adoption take from and through adopted child

v. Adoption by estoppel/ equitable adoption – a “parent” makes it look like they adopted a “child” even though no formal adoption. they “become” a child through intestacy.
however if the “child” dies, many states prohibit “parent” from inheriting

vi. No limit bsed on the age of the child at time of adoption
1. some states make a difference based on age

Question 14

Non-Marital Children

Answer 14

i. If a mother—treated the same in all cases
ii. If a father—many states impose additional requirements on a non-marital child to inherit from a father like—determination of paternity or the father acknowledging the child as his own

Question 15

Stepkids

Answer 15

c. Stepkids—not included in almost every state unless they try to be adopted

Question 16

Half-blooded heirs

Answer 16

someone where collateral relatives share only one ancestor in common

i. vary among jdxns. for ex
1. no distinction
2. give them half shares
3. cut them out if whole blooded collaterals of the same degree
ii. Only matters for when going to siblings as collaterals

Question 17

Posthumous heirs

Answer 17

jdxns vary.

i. born after death or through frozen sperm or embryo
ii. depends on the state
1. some say if conceived in utero, some give time limit of 2 years

Question 18

Unworthy heirs

Answer 18

i. Heir killing intestate—cannot take. states vary for why. some states—slayer statute. Some states—use a constructive trust to prevent unjust enrinchment. Courts are divided on how to handle lesser degrees of killing like voluntary manslaughter and negligence.
1. In the absence of a conviction, the court must find by a preponderance of the evidence that the person murdered the T.
2. BUT!! doesn’t matter if you kill someone else, this only applies if you kill the OR.
ii. Parnet failure to support child—then parent may not be able to inherit
iii. Abuse—limit inheritance rights who physically or financially abuse
iv. Adultery

Question 19

Disinheritance

Answer 19

i. Common law in most states: if something is going to intestacy, a will provision expressly disinheriting an heir is ineffective as to any property passing by intestiacy.
ii. UPC allows excluding the right of someone to inherit by intestacy.

Question 20

Advancement

Answer 20

prepayment of inheritance by intestacy
requirements to prove:
1) writing that share is an advancement 2) contemporaneous writing by the donor 3) acknowledgement in writing by heir

ii. Effect- if advancee wants to share, the advancee must account for advancement by going into hotchpot. Compute shares as if advancement were still in estate based either on date of gift or ate of death value.

2. But if it would cause advancee to get less, you don’t have to give anything up. you just might get nothing.
   iii. similar to satisfaction in wills.

Question 21

Survival

Answer 21

most states require intestate to survive the decedent by a set period of time to inherit. Common time period is 120 hours or 5 days.

i. some states—even if you survive by one instant/breath you can inherit.
ii. If there is insufficient evidence that heir survived by the time period, the heir is treated as if the heir died first.

Question 22

Disclaimers

Answer 22

Can disclaim, but not to avoid tax lien

i. Requirements of dislaimers—
1. must be in writing, signed and notarized,
4. must be filed with appropriate court typically within 9 months of date of death. modern rule – no time period, can disclaim for any amount of time if you haven’t already accepted

ii. if you accept, can’t later disclaim.

iii. Effect of disclaimer—
1. treat it as if disclaimint died first—so disclaimer decide where it goes.
2. Irrevocable

Question 23

Negative Wills

Answer 23

some states allow disinheriting a heir without actually writing a will giving the property to someone else.