Intestacy & Bars to Succession

Question 1

2-101 Intestate Estate

Answer 1

(a) Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in this [code], except as modified by the decedent’s will.
(b) A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent’s intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his [or her] intestate share.

Question 2

2-102 Intestate Share of Spouse

Answer 2

a. No issue or parents → 100%
b. All decedent’s issue are also issue of surviving spouse AND surviving spouse has no other issue (NUCLEAR FAMILY) → 100%
c. No issue BUT surviving parent → $300,000 + 75%
d. All decedent’s issue are also issue of surviving spouse AND surviving spouse has other issue (prior relationship) → $225,000 + 50%
e. Decedent has one or more issue from someone other than surviving spouse → $150,000 + 50%
f. Note: If the estate is less than $150k, surviving spouse gets everything no matter what

Question 3

2-103 Intestate Share of Parents

Answer 3

After deducting spouse’s share, goes to parents.

Parents take equally, or all to survivor

Question 4

2-103 Intestate Share of Other ANCESTORS and REMOTE COLLATERALS

Answer 4

a. If there is no surviving spouse or issue, the property flows “up”
b. GRANDPARENTS/ISSUE OF GRANDPARENTS 2-103
i. 50% to paternal grandparents or survivor; otherwise to their issue equally
ii. 50% to maternal grandparents or survivor; otherwise to their issue equally
iii. If one side has no grandparents or issue, all to other side

Question 5

2-105 No Taker

Answer 5

NO TAKERS- intestate estate escheats to the state

Question 6

2-106(b) Calculating Representation

Answer 6

Per Capita at each generation

i. Any property not passing to surviving spouse falls to the first tier where there is a live taker.
ii. Shares of deceased persons on that level are treated as one pot and are dropped down and divided equally among the representatives in the next generation.

Question 7

2-119(b) Stepchild adopted by stepparent

Answer 7

Parent-child relationship exists between individual who is adopted by the spouse of either genetic parent and:

i. The genetic parent whose spouse adopted the individual, and
ii. The other genetic parents, but only for purpose of the right of the adoptee or a descendant of the adoptee to inherit from or through the other genetic parent

Question 8

2-119(c) Adoption by relative of a parent

Answer 8

Parent-child relationship exists between both genetic parents and an individual who is adopted by a relative of a genetic parent, or by the spouse or surviving spouse of a relative of a genetic parent, but only for purpose of the right of the adoptee or a descendant of the adoptee to inherit from or through either genetic parent

Question 9

2-119(d) Adoption after death of both genetic parents

Answer 9

Parent-child relationship exists between both genetic parents and an individual who is adopted after the death of both genetic parents, but only for the purpose of the right of the adoptee or a descendant of the adoptee to inherit from or through the either genetic parent
Although the rational is based in equity, the doctrinal requirements are based in contract

Question 10

2-120 Posthumously conceived child

Answer 10

A posthumously conceived child inherits from the deceased parent if:

a. While the parent was alive he or she authorized the posthumous use of such consent; and
b. The child is in utero within 36 months of, or born within 45 months

Question 11

2-121 Surrogacy

Answer 11

Surrogate mother has no rights in the child (absent a court order to the contrary) unless the surrogate mother is the genetic mother and no one else has a parent-child relationship with the child.

Question 12

Equitable Adoption

Answer 12

a. An agreement between the natural parents and the adoptive parents to adopt the child
i. Oral agreement inferred if parents take child into their home and raise the child as their child
b. That the natural parents fully perform by giving up custody of the child
c. And that the child fully performs by moving in and living with the adoptive parents
d. That the adoptive parents partially perform by taking the child in and raising the child as their own, and
e. That the adoptive parents die intestate

Question 13

2-803 Slayer Statute

Answer 13

a. Killer shall not take from his or her victim.
b. Treat the killer as if he or she disclaimed the property which arguably allows the killer’s issue to take the killer’s share under the anti-lapse statutes if they qualify.
c. Applies to all types of property: nonprobate, probate testate, probabte intestate.
d. Burden of proof: criminal conviction has res judicata effect on the civil issue 2-803(g), but an aquittal is not the final word.
e. If victim and killer held the property in joint tenancy, by operation of law the joint tenancy is converted into tenancy in common. Killer keeps interest and victim’s interest is distributed as if the killer predeceased the victim.
f. General rule is must be an intentional and felonious killing

Question 14

2-1105, 2-1106 Disclaimer

Answer 14

a. Heir or devisee can decline to take the property to allow for post-mortem estate planning
b. In writing, signed and notarized
c. Filed within 9 months of death
d. Treated as though disclaimant died immediately before the victim
e. Only disclaimed interest passes to the descendants of the disclaimant
f. Can partially disclaim
g. Cannot direct how disclaimed portion should be distributed
h. Can be disclaimed by agent
i. Can disclaim even if spendthrift