Intestacy - Jan. 21 - 30 Flashcards
To what does the law of intestacy apply? (Q)
The law of intestacy applies to any portion of a decedent’s (i.e., deceased person’s) estate that has not been disposed of by a will. This may occur, for example, if the decedent dies without a will, the will is invalid, or the will does not dispose of all of the property in the estate.
A decedent’s intestate estate is distributed to his or her surviving heirs (i.e., relatives who are entitled to inherit property after the owner’s death) via intestate succession.
What is an heir? (Q)
An heir is a person who stands to inherit from the estate of an intestate decedent, i.e., a decedent who has no will and whose estate passes under the intestacy laws. Heirs are identified after the decedent’s death.
What is an intestacy statute? (Q)
An intestacy statute is a state statute that defines how a decedent’s estate will be distributed to his or her surviving heirs (i.e., relatives who are entitled to inherit property after the owner’s death) via intestate succession. An intestacy statute applies only to portions of the decedent’s estate not otherwise disposed of by a will.
Is it possible to know who a person’s heirs are before that person dies? (Q)
No. It is not possible to know who a person’s heirs are before that person dies. Because a person’s heirs cannot be ascertained until death, a living person has no heirs.
The UPC requires any heirs to survive the decedent by 120 hours (5 days), and to prove survival by clear and convincing evidence. If a potential heir was in gestation at the time of the decedent’s death, the heir must survive for 120 hours (5 days) after birth, again shown by clear and convincing evidence.
If a decedent dies leaving no heirs, how do intestacy statutes following the UPC dispose of the estate? (Q)
If a decedent dies leaving no heirs, the intestate estate passes to the state. This is known as the doctrine of escheat.
How does the UPC define a descendant? (Q)
Under the UPC, a descendant of an individual must be traceable to the individual through a series of parent-child relationships. Descendants include children, grandchildren, great-grandchildren, etc. Adopted children and children born to unmarried parents also count as descendants. A descendant can be located in any generation of the decedent’s descendants.
However, if the decedent has relinquished his or her parental rights, for example, by placing a biological child for adoption, then the child may not inherit a share of the intestate estate because the child is not a descendant.
How does the UPC define a surviving spouse?
Under the UPC, a surviving spouse is married to the decedent at the time of death. The UPC defines marriage as any marital status other than divorce or annulment. Informal and formal separations, short of divorce, are generally considered insufficient to disinherit a surviving spouse.
Some states also include common-law marriages, civil unions, and domestic partnerships within the definition of marriage in their intestacy statutes.
Under what circumstances does a surviving spouse take the decedent’s entire intestate estate under the UPC? (Q)
Under the UPC, a surviving spouse takes the decedent’s entire intestate estate if:
no descendant or parent survives the decedent; or
all of the decedent’s surviving descendants are also descendants of the surviving spouse, and the surviving spouse has no descendants that also survive the decedent.
A decedent died intestate. The decedent was survived by his spouse and a child by the surviving spouse. The surviving spouse did not have any children by anyone else.
Under the UPC, what is the surviving spouse’s intestate share? (Q)
The surviving spouse’s intestate share is the entire intestate estate. Under the UPC, the surviving spouse takes the entire intestate estate if: (1) the decedent has surviving descendants, (2) those descendants are all by the surviving spouse, and (3) the surviving spouse does not have descendants by anyone else who survived the decedent. That is, the surviving spouse inherits the entire intestate estate if the decedent and the surviving spouse have the same surviving descendants.
Here, the decedent has one surviving descendant, the child by the surviving spouse. The surviving spouse does not have descendants by anyone else. Thus, the surviving spouse takes the entire intestate estate.
Under the UPC, would a surviving spouse take the entire intestate estate if the decedent’s only other surviving relative is a parent? (Q)
No. Under the UPC, if an intestate decedent has no surviving descendants, but is survived by one or both parents, the surviving spouse takes the first $300,000, plus three-fourths of the remaining balance.
Under the UPC, would the surviving spouse take the entire intestate estate if the decedent’s only other surviving relative is a sibling? (Q)
Yes. Under the UPC, the surviving spouse takes the entire intestate estate if the decedent has no surviving descendants or parents. A decedent’s sibling is not a descendant; descendants under the UPC must be traceable to the decedent through a series of parent-child relationships.
Under the UPC, what share of the decedent’s estate is due to the surviving spouse if all of the decedent’s surviving descendants are shared with the surviving spouse, but the surviving spouse also has descendants who are not shared with the decedent?
Under the UPC, the surviving spouse takes the first $225,000 plus one-half of any balance of the intestate estate if:
all of the decedent’s surviving descendants are also descendants of the surviving spouse, and
the surviving spouse also has descendants who are not descendants of the decedent (e.g., children from a marriage prior or subsequent to the surviving spouse’s marriage to the decedent).
Because the surviving spouse has other descendants that are not shared with the decedent, the decedent’s descendants are not likely to be the exclusive beneficiaries of any will or intestate succession following the surviving spouse’s death.
This UPC provision thus ensures that, if the estate exceeds $225,000, the decedent’s descendants that are not shared with the surviving spouse inherit some portion of the decedent’s estate.
Under the UPC, if one or more of the decedent’s surviving descendants is not also a descendant of the surviving spouse, what share of the decedent’s intestate estate does the surviving spouse take? (Q)
Under the UPC, if one or more of the decedent’s surviving descendants is not also a descendant of the surviving spouse (for example, if the decedent has children with a spouse other than the surviving spouse), the surviving spouse takes the first $150,000, plus one-half of any balance of the intestate estate.
The decedent’s descendants that are not shared with the surviving spouse are not likely to be beneficiaries of any gift or inheritors of any portion of the surviving spouse’s estate upon the surviving spouse’s death. This UPC provision ensures that the unshared descendants inherit a portion of the decedent’s estate when it exceeds $150,000.
Does the UPC use different rules for what portion of the decedent’s intestate estate is due to a surviving spouse in community-property states and in non-community-property states? (Q)
No. The UPC sets out identical rules for what portion of the intestate estate is due to a surviving spouse in a community-property state (i.e., a state in which property acquired during the marriage is deemed community property) and in a non-community-property state.
In a community-property state, community property (i.e., property acquired during a marriage) generally passes to the surviving spouse automatically, and does not form a portion of the decedent’s intestate estate. The intestate estate in a community-property state is therefore comprised of separate, not community, property. The UPC’s rules regarding a surviving spouse’s share therefore address what portion of the decedent’s separate property is due to the surviving spouse.
What is a deserting spouse statute? (Q)
A deserting spouse statute bars intestate succession by a surviving spouse who is in abandonment of the decedent at the time of death. In states with these statutes, a surviving spouse who has deserted the decedent does not inherit any portion of the intestate estate.
Under the UPC, if the decedent leaves no surviving spouse, what portion of the decedent’s intestate estate goes to her surviving descendants? (Q)
If the decedent leaves no surviving spouse, her entire intestate estate passes to her descendants. In general, any portion of the intestate estate not passing to the surviving spouse passes first to any of the decedent’s surviving descendants.
Under the UPC, in what order do children and other survivors of the decedent take any portion of the intestate estate not inherited by the surviving spouse? (Q)
Any portion of a decedent’s intestate estate not passing to a decedent’s surviving spouse (or the entire estate if there is no surviving spouse) passes to the decedent’s survivors in the following order:
the decedent’s descendants;
the decedent’s parents, if there are no surviving decedent descendants;
the descendants of the decedent’s parents, if there are no surviving decedent descendants or parents;
the decedent’s grandparents, if there are no surviving decedent descendants, parents, or descendants of parents.
What default method of representation does the UPC use to distribute an intestate estate amongst a decedent’s surviving descendants and the descendants of any children that predeceased the decedent? (Q)
The default method of representation under the UPC is per capita at each generation. Under this distribution scheme, the first generation with surviving descendants of the decedent takes the intestate share. The surviving descendants and deceased descendants with surviving descendants each inherit an equal portion.
The portions distributed to any deceased descendants are recombined and divided equally among those in the next generation in the same manner, repeating per capita at each generation until the intestate share is fully distributed.
How is the descendants’ intestate share distributed under a per stirpes method of representation? (Q)
Under a per stirpes method of representation, the decedent’s children—living and dead—each inherit an equal portion of the intestate share. The portion distributed to any predeceased child is divided equally among that child’s surviving descendants, repeating per stirpes until the intestate share is fully allocated.
Under the UPC, is an adopted child considered a child of the adoptive parents (i.e., among the adoptive parents’ descendants) for purposes of intestate succession? (Q)
Yes, under the UPC, an adopted child is treated just like a blood relative in the adopted child’s adoptive family for purposes of intestacy. An adopted child is therefore a descendant of her adoptive parents.
An adopted child is not usually considered a descendant of her genetic or biological parents. The UPC generally treats an adopted child as carved out of the adopted child’s biological family, meaning the adopted child cannot typically inherit from the genetic family and vice versa.
Under the UPC, what are the three circumstances in which an adopted child can inherit from the adopted child’s genetic family under the law of intestacy? (Q)
Under the UPC, the three circumstances in which an adopted child can inherit from the adopted child’s genetic family under the law of intestacy are:
adoption by a stepparent,
adoption by a genetic relative or the surviving spouse of a genetic relative, or
adoption after the death of both genetic parents.
These are exceptions to the general rule. The UPC generally treats an adopted child as carved out of the adopted child’s biological family, meaning the adopted child cannot typically inherit from the genetic family. If an exception applies, however, the adopted child is treated as a child of both genetic parents for purposes of intestate succession from or through the genetic parents.
A child was adopted by his genetic mother’s husband, i.e., his stepfather. The child reached adulthood and accumulated assets but died intestate, survived by only his genetic parents and adoptive stepfather.
Can the child’s genetic father inherit from the child under the UPC? (Q)
No. The child’s genetic father cannot inherit from the child. Under the UPC, a parent whose child has been adopted out from that parent is not treated as the child’s parent for purposes of intestacy. True, a child adopted by a stepparent is still treated as a descendant of the child’s biological parent who is not married to the stepparent. Even so, that biological parent is not treated as a parent.
Here, the child’s genetic father is not treated as the child’s parent for purposes of intestacy, because the child was adopted by her stepfather. Thus, the child’s genetic father does not take any share of the intestate estate.
Assuming parentage has been adjudicated, acknowledged, or otherwise legally established, can a child born to unmarried parents (i.e., a non-marital child) inherit from the child’s genetic father under the law of intestacy? (Q)
Yes. A child born to unmarried parents (i.e., a non-marital child) may inherit from the child’s genetic father under the law of intestacy. The U.S. Supreme Court has held that states may not bar children born to unmarried parents from inheriting on the basis of illegitimacy.
In the past, children born to unmarried parents were not permitted to inherit from their fathers in many states. This is no longer the case.
Under the Uniform Parentage Act (UPA), if an unmarried man has lived with a child from the child’s birth through adulthood and claimed the child as the man’s own, is the child treated as the man’s child for purposes of intestacy law? (Q)
Yes. The child would be treated as the man’s own for purposes of intestacy law. The UPA presumes paternity if a man resides in the same household as a child for the first two years of the child’s life and holds out the child as his own. The presumption is rebuttable, but no adjudication of paternity is necessary for the child to inherit.
Does the UPA presume paternity if a child was born within 300 days of the termination of any marriage by death, divorce, or annulment? (Q)
Yes. Under the UPA, a presumption of paternity is triggered if:
a man and the mother of a child were married to each other, and
the child was born within 300 days of the termination of the marriage by death, divorce, or annulment.
The presumption is rebuttable, but no adjudication of paternity is necessary for the child to inherit.
A man died, and his surviving spouse bore a child three months later. Two years after the child’s birth, the man’s father died intestate, unmarried, and survived by no apparent relatives.
Assuming the Uniform Parentage Act (UPA) applies, could the man’s child inherit from the man’s father as a grandchild without an adjudication of the man’s paternity? (Q)
Yes. The child could inherit from the man’s father as a grandchild without an adjudication of the man’s paternity. Under the UPA, a presumption of paternity is triggered if (1) a man and the mother of a child were married to each other, and (2) the child was born within 300 days of the termination of the marriage by death, divorce, or annulment. The presumption is rebuttable, but no adjudication is necessary for the child to inherit.
In this case, because the man was married to the child’s mother, and the child was born within 300 days of the termination of the marriage by the man’s death, the man’s paternity is presumed. The child is therefore presumed to be a grandchild of the man’s father and can take an intestate share of the man’s father’s estate.
Under what circumstances will the UPA presume paternity of an individual who asserts parentage for a child born before a marriage? (Q)
If an individual marries a woman after she gives birth, and later asserts parentage of the child, the UPA presumes parentage if the individual either agrees to be listed as a parent on the birth certificate or otherwise files a record including an assertion of parentage with the state office maintaining birth records.
The UPA’s presumption of parentage is rebuttable, but parentage need not be adjudicated in order for a child to inherit via intestacy from an individual whose parentage is presumed.
Under what four circumstances does the UPA presume parentage? (Q)
The UPA presumes parentage or paternity:
if the individual is married to the woman who gave birth to the child at the time of the birth, regardless of whether the marriage is invalid;
if the the child was born not more than 300 days after the marriage dissolved due to death, divorce, annulment, or other declaration of invalidity;
if the individual married the woman after the birth of the child, the individual asserted parentage, and the individual either agreed to be named on the birth certificate or asserted parentage on a record filed with a state agency maintaining birth records; or,
if the individual resided in the same household as the child for the first two years of the child’s life, and held the child out as the individual’s own.
The UPA’s presumption of parentage is rebuttable, but parentage need not be adjudicated in order for a child to inherit via intestacy from an individual whose parentage is presumed.
Under the UPC and the law of intestacy in the majority of states, would a half-blood sibling receive a reduced intestate share as compared to a whole-blood sibling? (Q)
No. The half-blood sibling would not receive a reduced intestate share as compared to a whole-blood sibling. Under the UPC and the law of intestacy in the majority of states, half-blood relatives inherit the same share as whole-blood relatives.
What is the minority rule governing intestate succession by half-blood relatives? (Q)
In a minority of states, a half-blood relative takes a half share as compared to a whole-blood relative.
This is in contrast to the UPC and the law of intestacy in the majority of states, under which half-blood relatives inherit the same share as whole-blood relatives.
A man and a woman had two children together, a boy and a girl. The man and the woman divorced, and the woman subsequently remarried and had a baby. Following the death of the man and the woman, the boy died intestate. The boy was survived by only the girl and the baby. The state follows the minority rule governing the intestate share of half-blood relatives.
Assuming the girl and the baby together would take the boy’s whole intestate estate, what is the girl’s share of the boy’s estate? (Q)
The girl’s share of the boy’s estate is two-thirds. In a minority of states, a half-blood relative takes a half share as compared to a whole-blood relative.
Here, the baby is the boy’s half-blood sibling, and the girl is the boy’s whole-blood sibling. The girl would therefore take twice the baby’s share. The baby’s share is one-third of the boy’s intestate estate, meaning the girl would inherit two-thirds of the estate.
Under the UPC, if the decedent leaves no surviving spouse or descendants, to whom does the intestate estate pass? (Q)
If the decedent leaves no surviving spouse or descendants, the entire intestate estate passes to the decedent’s surviving parents in equal shares. If only one parent survives the decedent, then that sole surviving parent takes the entire intestate estate.
What is a deserting parent statute? (Q)
Some states have a deserting parent statute that bars succession by an heir who is in violation of his duty as a parent to the decedent. Typically, to bar succession as a deserting parent, the heir’s parental rights must have:
been terminable immediately before the child’s death based on clear and convincing evidence of abuse, neglect, lack of support, or abandonment; or
actually been terminated before the child’s death.
Under the UPC, under what circumstances would a decedent’s surviving grandparents inherit a portion of her intestate estate? (Q)
A decedent’s surviving grandparents would inherit a portion of her intestate estate under the UPC if the decedent was not survived by any descendant, parent, or descendant of a parent. In that case, the decedent’s intestate estate is divided equally between the paternal and maternal sides of the decedent’s family. Half the intestate estate goes to the paternal grandparents, in equal shares if both grandparents survive, or to the sole surviving paternal grandparent if only one survives, or to the paternal grandparents’ descendants if both are deceased. The other half of the intestate estate passes in the same way on the maternal side.
If one side of the family lacks any surviving grandparent or descendant of a grandparent, then the entire intestate estate goes to the side of the family with a surviving grandparent or descendant of a grandparent, in the manner described above.
A man died intestate, survived by relatives on both the maternal and paternal sides. On the maternal side, the survivors were a grandfather and the grandfather’s daughter, i.e., the decedent’s aunt. On the paternal side, the survivors were both grandparents.
Under the UPC intestacy provisions, to whom and in what shares will the man’s estate be distributed? (Q)
The maternal grandfather takes a 50 percent share, and the paternal grandparents jointly take a 50 percent share. Under the UPC, if a decedent has no surviving descendants, parents, or descendants of a parent, but is survived by grandparents, the paternal grandparents inherit half, and the maternal ones inherit half, of the intestate estate. If only one grandparent survives on either side, that grandparent takes the full 50 percent share; the predeceased grandparent’s share is not distributed to that grandparent’s descendants.
Here, both paternal grandparents survived the decedent and therefore together inherit half of the decedent’s estate. The remaining half of the estate is distributed to the decedent’s maternal grandfather. The decedent’s aunt does not inherit the predeceased maternal grandmother’s share and therefore does not inherit at all.
Under the UPC, could a great-grandparent be an heir in intestacy? (Q)
No. A great-grandparent could not be an heir in intestacy under the UPC. The UPC does not provide for intestate inheritance by ancestors more remote than a decedent’s grandparents. Thus, although a great-grandparent is an ancestor, great-grandparents are not among the designated classes of heirs under the UPC intestacy scheme.
How does the UPC define a collateral relative? (Q)
A collateral relative is a relative who is not married to, an ancestor of, or a descendant of the decedent. A sibling is one example of a collateral relative. For a collateral relative to inherit a share of the intestate estate, the decedent must not be survived by a spouse, any parents, or any descendants.
In what order does the UPC distribute an intestate estate to a decedent’s ancestors and collateral relatives? (Q)
If a decedent leaves no descendants, then any portion of the intestate estate not allocated to the surviving spouse (or the entire intestate estate if there is no surviving spouse) is distributed to:
the decedent’s parents;
the descendants of the decedent’s parents (e.g., the decedent’s siblings), if there are no surviving parents;
the decedent’s grandparents, if there are no surviving parents or descendants of parents;
the descendants of the decedent’s grandparents (e.g., the decedent’s aunts and uncles), if there are no surviving parents, descendants of parents, or grandparents.
Source
Under what circumstances would a decedent’s surviving siblings inherit a portion of her intestate estate under the UPC? (Q)
A decedent’s surviving siblings would inherit a portion of her intestate estate under the UPC if the decedent was not survived by any descendant or parent. If the decedent leaves no surviving descendants or parents, then the intestate estate passes to the descendants of the decedent’s parents, which would include the decedent’s siblings as well as their descendants (i.e., the decedent’s nieces, nephews, grand-nieces, grand-nephews, etc.).
How does the decedent’s intestate estate pass under the UPC if the decedent leaves no surviving spouse, descendant, parent, or descendants of parents? (Q)
If a decedent leaves no surviving spouse, descendant, parent, or descendants of parents, then the intestate estate passes to the surviving grandparents. The intestate estate is divided into equal portions for the paternal and maternal sides of the family. Each side’s share is divided equally between two surviving grandparents.
If only one grandparent survives, the other grandparent takes that entire side’s share. If neither grandparent survives, that side’s share is distributed among the grandparents’ surviving descendants.
How does the decedent’s intestate estate pass under the UPC if the decedent leaves no surviving spouse, descendant, parent, grandparent, or descendants of parents or grandparents? (Q)
If a decedent leaves no surviving spouse, descendant, parent, grandparent, or descendants of parents or grandparents, then her intestate estate passes to the surviving descendants of any deceased spouse. If the decedent was married more than once, then an equal share of the intestate estate is passed to each set of descendants for each deceased spouse.
What is an advancement? (Q)
Under the doctrine of advancement, an heir’s intestate share may be reduced by property that was transferred by the decedent to the heir before death. The reduced share may be calculated by adding the value of any advancements to the intestate estate before distribution.
What is the hotchpot method? (Q)
The hotchpot method developed at common law as a way to calculate an heir’s reduced share of a decedent’s estate following an advancement. The hotchpot method adds the value of any advancements to the intestate estate before distribution. When the estate is distributed, the share of any heir that received an advancement is reduced by the value of that advancement.
Was a writing traditionally required at common law to find that a lifetime gift was an advancement on the donee’s intestate share? (Q)
No. At common law, lifetime gifts were traditionally presumed to be advancements on a donee’s intestate share, even without being identified that way by a contemporaneous writing. This presumption has been reversed in most states and under the Uniform Probate Code.
Under the UPC, in what four circumstances is a lifetime gift treated as an advancement on the donee’s intestate share? (Q)
The UPC recognizes the following four circumstances in which a lifetime gift is treated as an advancement, all of which require a writing:
the decedent declared in a contemporaneous writing that the gift was an advancement,
the heir acknowledged in writing that the gift was an advancement,
the decedent’s contemporaneous writing otherwise indicates that the gift is to be taken into account in computing the distribution of the estate, or
the heir’s written acknowledgment otherwise indicates that the gift is to be taken into account in computing the distribution of the estate.
A man gave his daughter a car valued at $30,000 for the daughter’s sixteenth birthday. The circumstances of the gift satisfied the requirements for treating the gift as an advancement. A few years later, the man died intestate. The man’s estate consisted of $150,000 in a bank account.
If the decedent’s only heirs are the daughter and a son, each of whom takes half of the intestate estate, how much money would each receive out of the bank account using the hotchpot method? (Q)
The son would receive $90,000, and the daughter would receive $60,000. The hotchpot method calculates the distribution of an estate by first adding back into the estate the value of any advancements. When the estate is distributed, the share of any heir that received an advancement is reduced by the value of that advancement.
In this case, the gift of the car to the decedent’s daughter was a $30,000 advancement. Thus, $30,000 is added to the $150,000 in the decedent’s bank account to determine the value of the estate to be distributed, yielding a hotchpot of $180,000. Half of the hotchpot is $90,000. The brother takes his full $90,000 share because he did not receive any advancements. Because the daughter received a $30,000 advancement, she will receive only $60,000 from the bank account to complete her $90,000 share.
What requirement must an heir satisfy to be treated as a survivor of a decedent under the UPC? (Q)
The survivorship requirement under the UPC requires clear and convincing evidence that the heir survived the decedent by 120 hours or, in the case of a child in gestation at the time of the decedent’s death, that the child lived for 120 hours after birth. Otherwise, the heir is deemed to have predeceased the decedent.
What requirement must an heir satisfy to be treated as a survivor of a decedent at common law? (Q)
The common law requires proof by a preponderance of the evidence that an heir survived the decedent by any length of time, even if only an instant.
A husband and wife died intestate together in a car accident. There was overwhelming evidence that the wife lived for half an hour longer than the husband. The only living relatives of the husband and wife, and thus, the only heirs, were their respective parents.
Under the UPC, who takes the estate of the husband? (Q)
Under the UPC, the husband’s parents take the estate. The UPC requires clear and convincing evidence that an heir survived a decedent by 120 hours for that heir to inherit; otherwise, the heir is deemed to have predeceased the decedent.
Here, because there is overwhelming evidence that the wife survived the husband by only half an hour, the wife cannot satisfy the requirement of clear and convincing evidence of survival by 120 hours. Consequently, the wife is treated as having died before the husband for purposes of distributing the husband’s intestate estate. The husband’s only heirs are his parents. The husband’s parents therefore inherit the husband’s entire intestate estate.
