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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
one or more issue of descendent | TN INTESTACY SPOUSAL SHARE
= 1/3 OR child’s share, whichever is great
26
general rule | SHARE OF DESCENDANTS/OTHER HEIRS
= Parents and collateral kin never inherit if the decedent is survived by children or more remote descendants
27
order of distribution | TN INTESTACY SHARE
FIRST TO issue SECOND TO D’s parents THIRD TO siblings FOURTH TO sibling’s issue by representation FIFTH TO grandparents or ‘s issue
28
amount of intestacy descendant share | TN INTESTACY SHARE
- Surviving spouse = get remainder of estate | - No surviving spouse = get entire estate
29
2 ways to divide share of issue | TN INTESTACY SHARE
1. In equal shares IF of same degree of kinship to D | 2. By representation IF of varying degrees of kinship
30
2 ways to divide share of grandparent(s) | TN INTESTACY SHARE
1. Both sides survive = equally divided | 2. One side survives = entire estate
31
2 ways to divide share of issue of grandparent(s) | TN INTESTACY SHARE
1. Issue same degree of kinship = take equally | 2. Issue of unequal degree of kinship = by representation
32
if no spouse, who takes next? | TN ORDER OF DISTRIBUTION
= issue | SECOND PRIORITY
33
if no issue, who takes next? | TN ORDER OF DISTRIBUTION
= D’s parents | THIRD PRIORITY
34
if no issue or parent, who takes next? | TN ORDER OF DISTRIBUTION
= siblings | FOURTH PRIORITY
35
if no issue, parent, or siblings, who takes next? | TN ORDER OF DISTRIBUTION
= sibling’s issue by representation | FIFTH PRIORITY
36
if no issue, parent, siblings, or siblings's issue, who takes next? TN ORDER OF DISTRIBUTION
= grandparents or ‘s issue | SIXTH PRIORITY
37
amount of intestacy descendant share | TN INTESTACY SHARE
- Surviving spouse = remainder of estate | - No surviving spouse = entire estate
38
surviving spouse | TN AMOUNT OF INTESTACY HEIR SHARE
= get remainder of estate
39
no surviving spouse | TN AMOUNT OF INTESTACY HEIR SHARE
= get entire estate
40
if no spouse, who takes next? | TN ORDER OF DISTRIBUTION
= D’s issue by representation | SECOND PRIORITY
41
if no spouse or issue, who takes next? | TN ORDER OF DISTRIBUTION
= D’s parents (both equally or only surviving one entirely) | THIRD PRIORITY
42
if no spouse, issue, or parent, who takes next? | TN ORDER OF DISTRIBUTION
= D’s parents by representation or D’s parent’s issue (siblings) FOURTH PRIORITY
43
if no spouse, issue, parent, siblings, who takes next? | TN ORDER OF DISTRIBUTION
= both paternal AND maternal grandparents/grandparent’s issue by representation (half to paternal, half to maternal) FIFTH PRIORITY
44
if no issue, parent, parent's issue, both sides of grandparent/'s issue, who takes next? TN ORDER OF DISTRIBUTION
= 1+ grandparents or grandparent’s issue on one side by representation SIXTH PRIORITY
45
if no issue, parent, parent's issue, any grandparents/’s issue, who takes next? TN ORDER OF DISTRIBUTION
= deceased S’s issue by representation (equal shares to multiple spouses) SEVENTH PRIORITY
46
modern per stirpes | DISTRIBUTION
TN view (majority view) = divide at first level where there is a survivor (share of deceased passes by representation)
47
tn view | NO HEIRS OF DECEDENT
escheats to TN
48
5 special categories of children | ESTATES
1. adopted children 2. posthumous children 3. nonmarital children 4. half bloods
49
as to adopting family | TREATMENT OF ADOPTED CHILDREN
= 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
adopted after execution of a will | TREATMENT OF ADOPTED CHILDREN
considered to be pretermitted child
51
anti-lapse | TREATMENT OF ADOPTED CHILDREN
considered to be a lineal descendant
52
as to natural parents | TREATMENT OF ADOPTED CHILDREN
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
general exception for adopted by spouse of natural parent | ADOPTION EFFECTS AS TO NATURAL PARENTS
- 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
exception for death of natural parent | ADOPTION EFFECTS AS TO NATURAL PARENTS
- 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
definition | POSTHUMOUS CHILDREN
= child in gestation at decedent’s death
56
general rule | POSTHUMOUS CHILDREN
= one cannot claim as an heir of another person | UNLESS he was alive at the other person’s death
57
uniform parentage act exception | POSTHUMOUS CHILDREN
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
tn rule | POSTHUMOUS CHILDREN
Relatives of D conceived before D’s death but born after inherit as if they had been born in D’s lifetime
59
tn presumption | POSTHUMOUS CHILDREN
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
@ common law | NONMARITAL CHILDREN
= nonmarital child could not inherit from either parents | ONLY from his own descendants
61
majority | NONMARITAL CHILDREN
all states permit inheritance from the mother
62
tn father-child relationship | NONMARITAL CHILDREN
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
definition | HALF-BLOODS
= brothers and sisters who have only one common parent
64
rule | HALF-BLOODS
no distinction between half bloods and whole bloods
65
majority/upc | HALF-BLOODS
abolished all distinctions between siblings of the half blood and those of whole blood = half bloods and whole bloods inherit equally
66
applicable law | EXAM INSTRUCTIONS
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
dividing a fraction by a whole number | HOW TO MATH
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
distinction btwn usda and 120-hour rule | SURVIVAL
120-hour rule = applies to wills and intestacy uniform simultaneous death act = applies to everything else

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