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Wills & Thrills > Intestacy > Flashcards

Intestacy Flashcards

1
Q

intestate succession

ESTATES

A

Property may pass by intestate succession where
1. The decedent dies without have made a will OR
2. The decedent’s will is denied OR
3. The decedent’s will does not dispose of all his property
Either because
a. Gift has failed OR
b. Will contains no residuary clause
= results in partial intestacy

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2
Q

definition

INTESTATE SUCCESSION

A

= statutory method of distributing assets that are not disposed of by will

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3
Q

decedent’s will is denied

INTESTATE SUCCESSION

A

Example = due to improper execution or successful will contest

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4
Q

what property passes by intestacy?

INTESTATE ESTATE

A

All property owned by the decedent at death
EXCEPT
1. Property passing by valid will
2. Property passing by will substitute (= non-probate property)

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5
Q

tn bar on wrongful death proceeds

INTESTATE ESTATE

A

Proceeds from a wrongful death action cannot pass under the will of the deceased
= proceeds pass under intestacy

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6
Q

intestacy policy considerations

INTESTATE ESTATE

A
  1. Decedent’s presumed intent (AKA estate planning by default)
  2. Support of decedent’s dependents
  3. “Trickle-Down” of estate
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7
Q

types of intestacy

INTESTATE ESTATE

A
  1. full intestacy

2. partial intestacy

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8
Q

full intestacy

INTESTATE ESTATE

A

= no valid will

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9
Q

partial intestacy

INTESTATE ESTATE

A

= valid will that fails to dispose of all probate property

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10
Q

who represents the decedent after death?

INTESTATE ESTATE

A

TN law

= to the spouse who applies, otherwise to next-of-kin who applies, otherwise to a creditor
(if more than one apply, probate court may decide who is entitled)

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11
Q

key inquiry

DISTRIBUTION

A

Who inherits the intestate estate?

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12
Q

intestate inheritance terminology

DISTRIBUTION

A
  • Heirs TAKE
  • Property DESCENDS
  • Heir must survive the decedent to inherit EXPECTANCY
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13
Q

order of priority

DISTRIBUTION

A

FIRST, spouse and/or descendants (AKA issue)
SECOND, parents
THIRD, siblings (and their descendants)
FOURTH, other relatives

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14
Q

survival

DISTRIBUTION

A

= simultaneous death and time-of-survival clauses

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15
Q

tn view

SURVIVAL

A

120-hour rule

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16
Q

uniform simultaneous death act

SURVIVAL

A

AKA usda

= property passes as though owner survived

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17
Q

operation of usda

SURVIVAL

A
  1. When title to property or its devolution depends on priority of death AND
  2. There is no sufficient evidence that the persons have died otherwise than simultaneously
    = the property of each person is disposed of as if he had survived

AKA property passes as though beneficiary or heir predeceased the other decedent

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18
Q

purpose of usda

SURVIVAL

A

to prevent the property of one person from passing to a second person
(and then to the second person’s beneficiaries)
- Resulting in double administration
- And possibly double taxation
of the same assets in quick succession
- even though the second person did not survive long enough to enjoy ownership of the property

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19
Q

application of usda

SURVIVAL

A
  • Applies only if there is no sufficient evidence of survival
  • Applies to all types of transfers
    = applies to distributions of property BY ANY MEANS,
    like
    1. Joint tenancy with right of survivorship
    2. Life insurance contract
    3. Etc.
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20
Q

120-hour rule

SURVIVAL

A

Failure to survive D by 120 hours = deemed to have predeceased

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21
Q

tn spousal share

DISTRIBUTION

A
  • No surviving issue of D = entire estate
  • Surviving issue of D = either 1/3 or child’s share, whichever is greater
    = 1 issue of D = ½ of estate
    = 2+ issue of D = 1/3 OR child’s share, whichever is greater
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22
Q

no surviving issue of descendent

TN INTESTACY SPOUSAL SHARE

A

= entire estate

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23
Q

surviving issue of descendent

TN INTESTACY SPOUSAL SHARE

A

= either 1/3 or child’s share, whichever is greater

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24
Q

one issue of descendent

TN INTESTACY SPOUSAL SHARE

A

= ½ of estate

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25
Q

one or more issue of descendent

TN INTESTACY SPOUSAL SHARE

A

= 1/3 OR child’s share, whichever is great

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26
Q

general rule

SHARE OF DESCENDANTS/OTHER HEIRS

A

= Parents and collateral kin never inherit if the decedent is survived by children or more remote descendants

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27
Q

order of distribution

TN INTESTACY SHARE

A

FIRST TO issue

SECOND TO D’s parents

THIRD TO siblings

FOURTH TO sibling’s issue by representation

FIFTH TO grandparents or ‘s issue

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28
Q

amount of intestacy descendant share

TN INTESTACY SHARE

A
  • Surviving spouse = get remainder of estate

- No surviving spouse = get entire estate

29
Q

2 ways to divide share of issue

TN INTESTACY SHARE

A
  1. In equal shares IF of same degree of kinship to D

2. By representation IF of varying degrees of kinship

30
Q

2 ways to divide share of grandparent(s)

TN INTESTACY SHARE

A
  1. Both sides survive = equally divided

2. One side survives = entire estate

31
Q

2 ways to divide share of issue of grandparent(s)

TN INTESTACY SHARE

A
  1. Issue same degree of kinship = take equally

2. Issue of unequal degree of kinship = by representation

32
Q

if no spouse, who takes next?

TN ORDER OF DISTRIBUTION

A

= issue

SECOND PRIORITY

33
Q

if no issue, who takes next?

TN ORDER OF DISTRIBUTION

A

= D’s parents

THIRD PRIORITY

34
Q

if no issue or parent, who takes next?

TN ORDER OF DISTRIBUTION

A

= siblings

FOURTH PRIORITY

35
Q

if no issue, parent, or siblings, who takes next?

TN ORDER OF DISTRIBUTION

A

= sibling’s issue by representation

FIFTH PRIORITY

36
Q

if no issue, parent, siblings, or siblings’s issue, who takes next?
TN ORDER OF DISTRIBUTION

A

= grandparents or ‘s issue

SIXTH PRIORITY

37
Q

amount of intestacy descendant share

TN INTESTACY SHARE

A
  • Surviving spouse = remainder of estate

- No surviving spouse = entire estate

38
Q

surviving spouse

TN AMOUNT OF INTESTACY HEIR SHARE

A

= get remainder of estate

39
Q

no surviving spouse

TN AMOUNT OF INTESTACY HEIR SHARE

A

= get entire estate

40
Q

if no spouse, who takes next?

TN ORDER OF DISTRIBUTION

A

= D’s issue by representation

SECOND PRIORITY

41
Q

if no spouse or issue, who takes next?

TN ORDER OF DISTRIBUTION

A

= D’s parents (both equally or only surviving one entirely)

THIRD PRIORITY

42
Q

if no spouse, issue, or parent, who takes next?

TN ORDER OF DISTRIBUTION

A

= D’s parents by representation or D’s parent’s issue (siblings)
FOURTH PRIORITY

43
Q

if no spouse, issue, parent, siblings, who takes next?

TN ORDER OF DISTRIBUTION

A

= both paternal AND maternal grandparents/grandparent’s issue by representation (half to paternal, half to maternal)
FIFTH PRIORITY

44
Q

if no issue, parent, parent’s issue, both sides of grandparent/’s issue, who takes next?
TN ORDER OF DISTRIBUTION

A

= 1+ grandparents or grandparent’s issue on one side by representation
SIXTH PRIORITY

45
Q

if no issue, parent, parent’s issue, any grandparents/’s issue, who takes next?
TN ORDER OF DISTRIBUTION

A

= deceased S’s issue by representation (equal shares to multiple spouses)
SEVENTH PRIORITY

46
Q

modern per stirpes

DISTRIBUTION

A

TN view
(majority view)

= divide at first level where there is a survivor

(share of deceased passes by representation)

47
Q

tn view

NO HEIRS OF DECEDENT

A

escheats to TN

48
Q

5 special categories of children

ESTATES

A
  1. adopted children
  2. posthumous children
  3. nonmarital children
  4. half bloods
49
Q

as to adopting family

TREATMENT OF ADOPTED CHILDREN

A

= adopted person is treated the same as a natural child of his adopting parents

  1. adopted child can inherit from/through adopting parents
  2. adopting parents and kin can inherit from/through adopted child
50
Q

adopted after execution of a will

TREATMENT OF ADOPTED CHILDREN

A

considered to be pretermitted child

51
Q

anti-lapse

TREATMENT OF ADOPTED CHILDREN

A

considered to be a lineal descendant

52
Q

as to natural parents

TREATMENT OF ADOPTED CHILDREN

A

2 RULES

  1. adopted child and his kin have no inheritance rights from/through the natural parents
  2. Natural parents and their kind have no inheritance rights from or through the natural child who has been put up for adoption

2 EXCEPTIONS

  1. Adopted by spouse of natural parent
  2. Death of natural parent
53
Q

general exception for adopted by spouse of natural parent

ADOPTION EFFECTS AS TO NATURAL PARENTS

A
  • Adoption of a child by the spouse of a natural parent = no effect on inheritance rights between the child and that natural parent or his family
  • BUT inheritance rights concerning the other natural parent = severed
54
Q

exception for death of natural parent

ADOPTION EFFECTS AS TO NATURAL PARENTS

A
  • Adoption of a child
  • by the spouse of a natural parent
  • who married the natural parent after the death of the other natural parent OR close relative
    = has no effect on inheritance rights between the child and the family of the deceased natural parent
55
Q

definition

POSTHUMOUS CHILDREN

A

= child in gestation at decedent’s death

56
Q

general rule

POSTHUMOUS CHILDREN

A

= one cannot claim as an heir of another person

UNLESS he was alive at the other person’s death

57
Q

uniform parentage act exception

POSTHUMOUS CHILDREN

A

Creates rebuttable presumption that child born to a woman within 300 days of the death of her husband is a child of that husband

58
Q

tn rule

POSTHUMOUS CHILDREN

A

Relatives of D conceived before D’s death but born after inherit as if they had been born in D’s lifetime

59
Q

tn presumption

POSTHUMOUS CHILDREN

A

man is rebuttably presumed to be father of child if

  1. man and child’s mother
    a. are married OR
    b. have been married AND
  2. child is born
    a. during the marriage OR
    b. within 300 days after marriage is terminated by
    - death
    - annulment
    - declaration of invalidity
    - divorce

= posthumous child of decedent inherits as if born during decedent’s lifetime

60
Q

@ common law

NONMARITAL CHILDREN

A

= nonmarital child could not inherit from either parents

ONLY from his own descendants

61
Q

majority

NONMARITAL CHILDREN

A

all states permit inheritance from the mother

62
Q

tn father-child relationship

NONMARITAL CHILDREN

A

permits inheritance from FATHER IF

  1. Natural parents participated in marriage ceremony before or after birth of children, even if void AND
  2. EITHER
    a. man was adjudicated to be the father in a paternity suit OR
    b. after the man’s death, he is proved in the probated proceedings to have been the father of the child
  3. by clear or convincing evidence
  4. with assertion of paternity made within earlier of 1 year from death or notice of probate
63
Q

definition

HALF-BLOODS

A

= brothers and sisters who have only one common parent

64
Q

rule

HALF-BLOODS

A

no distinction between half bloods and whole bloods

65
Q

majority/upc

HALF-BLOODS

A

abolished all distinctions between siblings of the half blood and those of whole blood
= half bloods and whole bloods inherit equally

66
Q

applicable law

EXAM INSTRUCTIONS

A
  1. wills = tn (compare to UTC)
    intestacy = tn (compare to UTC)
  2. trusts = UTC (or majority if UTC silent)
  3. non-probate transfers = majority
  4. powers of appointment = majority
  5. uniform prudent investment act = adopted by tn
  6. uniform principle and income act = adopted by tn
67
Q

dividing a fraction by a whole number

HOW TO MATH

A
  1. Multiply the denominator by the whole number (to get final denominator)
  2. Use same numerator as final numerator

EXAMPLE 1: ½ ÷ 3 = 1/6
EXAMPLE 2: 2/3 ÷ 3 = 2/9

68
Q

distinction btwn usda and 120-hour rule

SURVIVAL

A

120-hour rule = applies to wills and intestacy

uniform simultaneous death act = applies to everything else

Wills & Thrills (12 decks)

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