Intestacy Flashcards
Intestate Succession
process by which a decedent’s assets that are not disposed of by will are distributed
Intestate Succession arises when
- dies without will
- will does not dispose of all property (lacks residuary)
- will denied in probate (successfully contested)
Heir
takes by intestate succession
Beneficiary
one named in a will or trust
gifts, devises, bequests
property disposed of in a will
estate
refers roughly to the property owned by decedent at death
If D is survived by spouse and has no descendants
surviving spouse inherits entire estate
If D is survived by spouse and shared descendants
surviving spouse inherits entire estate
If D is survived by spouse and a parent
surviving spouse takes $300k + 75% of remainder
If D is survived by spouse, shared descendants, and surviving spouse’s independent issue
surviving spouse takes $225k + 50% of remainder
If D is survived by spouse and non-spousal children (not spouse’s)
surviving spouse takes $150k + 50% of remainder
If D is survived only by parents
parents take entire estate
If D is survived by no parents (and no one else)
D’s siblings will take
If D is survived by no one
estate will escheat to state
Per Stirpes
divide equally among each surviving child, or child who has surviving issue (3 kids, 1/3 to each lineal line)
Per Capita with Representation (maj.)
estate divided into equal shares at the first generation where there are living takers, then divided/distributed equally to each lineal line
Per Capita at each generation (UPC)
divided at first generation with living takers, but shares then are combined and divided equally among takers at the next level (each living at a generation will take equally)
do adopted children take in intestate succession
yes
do stepchildren take in intestate succession
generally have no inheritance rights
do posthumous children take in intestate succession
yes if in gestation at time of decedent’s death (treated as if alive)
simultaneous death rule
one cannot take as an heir or beneficiary unless they survive decedent
two approaches for the simultaneous death rule
Uniform Simultaneous Death Act
120-hr Rule
Uniform Simultaneous Death Act
property passes as though the beneficiary/heir died before decedent unless there is sufficient evidence decedent died first
120-hr Rule
beneficiary/heir is only treated as surviving decedent if there is clear and convincing evidence they survived by 120 hours or more
Slayer Rule
one who wrongly brings about the death of decedent forfeits an interest in decedent’s estate (killer treated as if predeceased decedent)
disclaimer
one may disclaim an interest that would otherwise pass to them (disclaiming party treated as if predeceased decedent)
disclaimer requirements
writing, irrevocable, and filed within 9 months of decedent’s death
Advancements
gifts made during testator or decedent’s life with the intent that the gift be applied against any share the heir would inherit
Modern Rule re Advancements
only deemed advancement if:
- D declared intent for gift to be an advancement in writing
- Heir acknowledged the gift to be an advancement in writing
Hotchpot Analysis
regarding advancements:
- add value of advancements back into intestate estate
- divide by number of taking children
- deduct advancement from child’s share
