Intestacy: Children and Advancements

Question 1

Why do people die intestate?

Answer 1

Some people don’t make a will because they’re scared of death, lawyers, don’t think they have enough stuff.

Question 2

Why should you make a will?

Answer 2

State doesn’t touch your stuff

Who will care for your kids

Name a trustworthy executor

If you have a lot of stuff, with planning, you can achieve tax savings (potentially)

Adjacent: Healthcare/POA

Question 3

What’s a living will?

Answer 3

Specifies your wishes if a number of terrible things happen.

Question 4

What do intestacy laws do?

Answer 4

The gov’t drafts a will for you if you don’t have one. Intestacy laws will also catch anything that you forgot to add. Writing intestacy laws are hard and complicated. It’s hard to make everyone happy.

Question 5

How should we decide intestacy laws?

Answer 5

Shape policy goal (ex: old people are taken care of)

Carry out based on what the average person would want.

Almost every state does some kind of research to figure out what people want, or look at wills and see what most people do.

Question 6

Under UPC, what are the scenarios where the spouse gets everything?

Answer 6

1. Person that dies has no kids/parents
2. Surviving spouse has a kid w/ decedent (common children)

We assume spouse will use money to share/take care of common children.

UPC is incredibly generous to spouses.

Probate process is initiated in the county of decedent’s legal residence. Somebody acting on behalf of decedent must come forward with death certificate and will. Ancillary can happen too.

Question 7

What about unmarried cohabitating partners?

Answer 7

No UPC rule on this. Possible suggestions are “Facts and circumstances” test or formal registry or accrual-type share.

Question 8

What is the problem of simultaneous death?

Answer 8

USDA: Uniform Simultaneous Death Act (1953) provided that if “there is no sufficient evidence” of the order of the deaths, each two simultaneously dying persons was deemed to have predeceased the other, so neither inherited from the other. States can vary on these, Arkansas Simultaneous Death Act is 120 hours survivorship by clear and convincing evidence.

Question 9

How does intestacy handle distribution to descendants?

Answer 9

Distribution to kids that are all alive get the assets split evenly. States vary if the decedent has outlived one or more kids.

Question 10

What is a branch in relation to children and family trees?

Answer 10

A branch is a living descendant or dead descendant who has kids.

Question 11

What is English Per Stirpes and Modern Per Stirpes?

Answer 11

Two ways for property to be divided.

English Per Stirpes: Treats each line of descent equally. The property is divided into as many shares as there are living children of the designated person and deceased children who have descendants living (thus the decedent’s children are the root generation). The children of each deceased descendant represent their deceased parent and are moved into their parent’s position beginning at the first generation below the designated person. (about 1/3 of states)

Modern Per Stirpes: Nearly ½ of states follow this. Under this, one looks first to see whether any children survived the decedent. If so, the distribution is identical to English per stirpes. If not, then the estate is divided equally (per capita) at the first generation in which there are living takers, which is usually the generation of decedent’s grandchildren. In other words, the root generation at which the decedent’s estate is divided into shares is the one nearest to the decedent in which one or more descendants of the decedent are alive.

Question 12

What is the table of consanguinity?

Answer 12

It is a chart of blood relationships that can be used to determine who the heirs are in an estate and whether there are any heirs to the fifth degree of consanguinity.

Question 13

What is the Parentelic System?

Answer 13

The parentelic system is a system used by some states to determine who is an heir of a deceased person who has died intestate. The assets are first passed to the spouse, descendants and parents of the decedent, then to siblings, nieces and nephews of the decedent.

Question 14

How are stepchildren treated in intestacy?

Answer 14

A little more than a quarter of states recognize stepchildren as potential heirs.

Question 15

How are adopted children treated in inheritance?

Answer 15

Adopted children are treated as natural children and become common children. Adopted children can inherit through and from adoptive family, not bio family because in adoption, you’re reborn in to a new family. (according to state law)

Adoption is VERY formal in the US. Do not inherit from foster parents.

Question 16

What is the UPC rule on adoption?

Answer 16

Adopted kids can’t inherit from bio family, but there are exceptions:

Adoption was by spouse of a parent before the adoption

Adoption was by a relative or the spouse or surviving spouse of a relative of a parent before the adoption

Adoption occurred after the death of a parent before the adoption (death of both parents)

UPC Default Rule on Adoption and Inheritance: Shouldn’t look at whether there was a formal adoption and who parents were, but instead who had a “parent-child” relationship (many factors to this, this isn’t a popular reform)

Question 17

What is the UPC rule on adult adoption?

Answer 17

You shouldn’t be able to adopt people for the purpose of them becoming an heir or manipulative adoption.

Question 18

Is unadoption valid?

Answer 18

Doris Duke Case shows that it is very difficult to undo an adoption. This is a risk of using the adoption to bring someone into an inheritance as an aggressive estate planning strategy.

Question 19

What about nonmarital children?

Answer 19

Now, states cannot cut off non-marital inheritance, but can request paternity

Question 20

What about posthumous children?

Answer 20

Posthumous descendants of the intestate conceived before his or her death but born thereafter shall inherit in the same manner as if born in the lifetime of the intestate.

Posthumously Conceived Children:

Woodward v. Commissioner

3rd Restatement: Born within a reasonable time after decedent’s death and in a circumstance decedent would have approved of child’s right to inherit

UPA: Decedent must consent to posthumous reproduction in a record

Good law is still being made on this

Question 21

What are advancements?

Answer 21

Common law assumed that any gift to a child during life was an advancement or pre-payment of inheritance. (OLD)

Advancement: A gift made by a person which is taken into account when the donor later dies intestate. Or heir’s inheritance prepayment.

Question 22

Do advancements apply if there’s a will?

Answer 22

ADVANCEMENTS DON’T APPLY IF THERE’S A WILL. But a good T&E lawyer will always ask if advancements were present.

Question 23

If there is an advancements, what are the steps?

Answer 23

Calculate net estate by adding the value of any advancements

Add advancement in

Look at intestacy laws that govern on how to divide and if there’s a will or no will

If there’s not enough money to split bc of a prior advancement, person who already got advancement splits their new “share” between siblings who didn’t get an advancement. Can lead to contentious fights between siblings.

Question 24

According to the UPC, what about gifts?

Answer 24

Gifts are not advancements unless its stated in writing.

Question 25

What is hotchpot?

Answer 25

the reunion and blending together of properties for securing equal division. If a gift is treated as an advancement, it is accounted for in distributing the decedent’s estate by bringing it into hotchpot.