Intestacy Flashcards
What is the applicable law for personal property?
The law of the domicile at the deceased’s death
What is the applicable law with respect to real property?
The law of situs/location
With regard to a surviving spouse under the COMMON LAW intestacy rules, How is that spouse treated?
Spouse = not an heir
Under the common law approach for a surviving spouse (intestacy rules), does the widow get a dower, and if so how much?
Dower permitted
Widow gets 1/3 of husband’s property owned during marriage
Under the modern law approach for intestacy rules what does the surviving spouse get?
Dower and courtesy are eliminated and the share of the surviving spouse depends on various factors (E.G.children)
Under the MODERN LAW approach for intestacy rules, is the surviving spouse treated as an heir?
Yes
What are the names of the three methods of computing shares amongst decedents?
- Per stirpes
- Per capita representation (majority approach)
- Per capita at each generation (modern trend)
Under the per stirpes rule, what do surviving children inherit?
Divide the shares equally at the first generation of children (even if no survivors). Their share will then pass equally to surviving decedents.
How do you divide shares between children/grandchildren under the per capita with representation model?
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.
Under which legal code is the per capita at each generation model adopted?
The uniform probate code
For distribution of shares under the per capita at each generation model, how would an estate be divided?
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)
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?
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
Does an adoptive parent take from their adopted child under intestacy rules?
Yes
Does the biological parent take from their adopted child under intestacy rules?
No
Does an adopted child inherit from their adopted parents?
Yes