intestacy -- descendants’ intestate share and representation Flashcards
What happens when no SS but surviving descendants? –
Upc – all to descendants (per capital at each generation) – about 20 percent of states follow
Under non upc –
All to descendants under strict per stirpes in about 30 percent of cases
All to descendants under the modern per stirpes in about 50 percent of states
what is the issue of represenation
if a child pre-deceases with surviving children, then those grand children represent in deceased place
We are still looking at dead person’s INTENT – just because a child died before them doesn’t mean 100 percent goes to the other child
what is the fundamental issue of representation
whether the division into shares should begin at the generational level immediately below the decedent or at the closest generational level with a descendant of the decedent still alive
what are the three types of representations
strict per stripes
Modern Per Stripes
Per Capita at Each Generation
what is strict per stirpes
ie the steps
treats each line of descent equally
1. start the division at the child of the decdent’s generation regardless of survival
2. count how many lines are at the starting generation (ie how many og children) and divide accordingly
what are the steps for modern per stirpes
- find the starting gen via divde equally at first gen with a surviving member
- count the lines at the starting gen (ie how many og children and then divide accordingly)
usually applying modern and strict per stripes reaches the same result; when will it reach diff resutls
When you see all OG heirs die
what is the steps for per captia at each generation (ie the upc approach)
- divide equally at first gen with a surviving member (like modern per stirpes)
- add remaining shares after distributing to surviving members and drop down
- divide equally among generation
essentially everyone at each gen is getting the same thing
if a will speaks of per stripes and doesnt specfiy which one, what is the construction
depends on the state;
In some states, courts read per stripes presumptively to call for the same representational system as provided by the state’s intestacy laws
In other states, courts read per stripes presumptively to reference strict per stripes
what is the upc default meaning of ‘by rep’ and ‘per stripes’ in a will
By representation= per captia at each gen
Per stirpes= english/strict per stripes
No Surviving Spouse
No Surviving Descendants
Surviving Parents
All to Surviving Parents
(UPC § 2-103(d))
No Surviving Spouse
No Surviving Descendants
No Surviving Parents
Surviving Siblings or Surviving Descendants of Siblings
All to Surviving Siblings
(Per Capita at Each Generation)
(UPC § 2-103(f))
non upc –Variations in Representation
No Surviving Spouse
No Surviving Descendants
No Surviving Parents
No Surviving Siblings or Descendants of Siblings
Surviving Grandparents or Descendants of Grandparents
50% to Paternal Grandparents and 50% to Maternal Grandparents
(Per Capita at Each Generation)
(UPC § 2-103(g)-(i))
non upc. Variations in Representation
Degree-of-Relationship System
the parental system vs the degree of relationship system
A “parental system” focuses solely on the direct parent-child relationship, meaning it considers only the immediate parents and their children
“degree of relationship system” calculates the closeness of a family relationship by counting the number of generations separating two individuals through a shared ancestor, encompassing a wider range of relatives beyond just parents and children
are step children considered children
no but certain scenarios the UPC thinks stepchildren would take
