Intestacy Flashcards

1
Q

What is the applicable law for personal property?

A

The law of the domicile at the deceased’s death

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2
Q

What is the applicable law with respect to real property?

A

The law of situs/location

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3
Q

With regard to a surviving spouse under the COMMON LAW intestacy rules, How is that spouse treated?

A

Spouse = not an heir

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4
Q

Under the common law approach for a surviving spouse (intestacy rules), does the widow get a dower, and if so how much?

A

Dower permitted

Widow gets 1/3 of husband’s property owned during marriage

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5
Q

Under the modern law approach for intestacy rules what does the surviving spouse get?

A

Dower and courtesy are eliminated and the share of the surviving spouse depends on various factors (E.G.children)

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6
Q

Under the MODERN LAW approach for intestacy rules, is the surviving spouse treated as an heir?

A

Yes

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7
Q

What are the names of the three methods of computing shares amongst decedents?

A
  1. Per stirpes
  2. Per capita representation (majority approach)
  3. Per capita at each generation (modern trend)
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8
Q

Under the per stirpes rule, what do surviving children inherit?

A

Divide the shares equally at the first generation of children (even if no survivors). Their share will then pass equally to surviving decedents.

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9
Q

How do you divide shares between children/grandchildren under the per capita with representation model?

A

Divide into shares at the first generation with survivors.

If all children are deceased and all property goes to the grandchildren, each grandchild takes an equal share rather than dividing the share that their parent would have taken had the parents survived.

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10
Q

Under which legal code is the per capita at each generation model adopted?

A

The uniform probate code

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11
Q

For distribution of shares under the per capita at each generation model, how would an estate be divided?

A

Firstly, you divide the intestates property into shares at the first generation were survivors. But then you give each generation below an equal share (so you pool the remaining property thereafter to give to grandchildren)

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12
Q

For a person that dies intestate, if there are no descendants that are still alive, property not passing to the surviving spouse goes to whom?

A

Ancestors in the following order:

  • if both parent are alive they get 1/2
  • if only one parent survives, some states give all to them; some give 1/2 to them and the other 1/2 to first generation collaterals
  • then if no parents survive, to siblings (of their decedents)
  • grandparents
  • more distant relatives
  • State government
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13
Q

Does an adoptive parent take from their adopted child under intestacy rules?

A

Yes

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14
Q

Does the biological parent take from their adopted child under intestacy rules?

A

No

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15
Q

Does an adopted child inherit from their adopted parents?

A

Yes

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16
Q

Does an adopted child inherit from their biological parents?

A

Generally no

17
Q

What is equitable adoption?

A

Conduct of parent/child makes it seem like they were formally adopted, even though it never officially happened.

In this instance, usually child can inherit from adoptive parent, but parent who didn’t formalise adoption cannot inherit from child

18
Q

Are step-children included in intestate distributions?

A

Generally not

19
Q

What are the rules for half blooded heirs inheriting?

A
  • Some states treat them same as full blood siblings
  • some stages provide they get half as much
  • some states say they don’t inherit at all
20
Q

Does a posthumous child inherit?

A

States vary on whether a child born after the parent dies will be able to inherit.

21
Q

What is the effect of a slayer statute?

A

If an heir murders the deceased, they cannot take under intestacy rules.

22
Q

If a pair own priority as joint tenants with rights or survivorship and person A murders the other, will they inherit the property?

A

No, the victim’s 1/2 share will pass under the will or by intestacy as though the killer predeceases her. However, the killer does not forfeit their own interest, but hold it as a tenant in common with the victim’s estate.

23
Q

If a parent fails to support a child, what might they be?

A

An unworthy heir who will not inherit through intestacy

24
Q

If an heir abused the deceased, will they be an unworthy heir?

A

Some states limit their right to inherit under intestacy rules in these circumstances

25
Q

What is an advancement?

A

An irrevocable gift intended by the donor as preparing of inheritance

26
Q

What proof do you need to show an advancement (minority and majority rule)?

A

Majority = writing signed by the donor or donee

Minority = oral proof

27
Q

What is the effect of the deceased making an advancement?

A

The advancee has to account for the gift if they want a share in the estate (known as going into hotchpot)

28
Q

What is the rule of survival under the Uniform Simultaneous Death Act?

A

When any disposition of property (by will, intestate, JT etc.) depends on the order of death AND the order cannot be established, the property is disposed of as if one survived the other.

29
Q

Will the Uniform Simultaneous Death Act apply where there is evidence of a person surviving another (even by a few minutes)?

A

No, where there is evidence, the USDA doesn’t apply

30
Q

What is the rule of survival under the Uniform Probate Code?

A

A person must survive the deceased by 120hrs in order to take any distribution.

31
Q

Can an heir disclaim their property and if so how?

A

Yes, an heir may disclaim by

  • making a writing
  • which they sign
  • file with a notary
  • filed with the court within 9 months from the testa tor’s death.
32
Q

If you accept property under intestacy rules, but then change your mind, can you still disclaim it?

A

No, once accepted property cannot be disclaimed

33
Q

If a beneficiary disclaims property, what is the effect?

A

The property passes as if you predeceased the testator and you cannot chose to whom the property is passed.

34
Q

Is a negative will or an express disinheritence clause effective in most states?

A

Common Law rule = ineffective if the testator dies all or partially intestate. The will just dispose of all property for the clause to be effective. Intent of the T is irrelevant.

UPC = effective (even through intestacy)