Intestate Flashcards
Laws of intestate succession definition
Default plan for distribution of a decedent’s property upon their death if they fail to make a will or the will is invalid
Intestate Estate/Probate Estate defintion
Only property owned by decedent at death (excluding property that passes to successor by non probate mechanisms)
Typically heirachy of intestate
Spouse, children, parents, siblings, then collateral relatives
In CP states the prop will generally pass to S.S.
Heirs defintion
Person entitled to an intestate share of decedent’s estate determined at their death only
Until the person dies they are presumed heirs
Representation defintion
Permits a person who are of a more remote degree of kinship to an intestate share to take even though there are others who are of closer kinship because they stand in the place of someone else closely related to decedent
Spousal Share of Intestacy
- Minimal share most states follow is 50% but it depends on state
- UPC has a scheme that depends on whether decedent has kids with S.S. or with someone else, if S.S. has kids, etc. The range is 100% to first 150K + 50%
3 schemes for determining percentages each decedent will take under intestacy
1) Classic Per Stirpes
2) Per capita by generation
3) Per capita with representation
Classic per stirpes
Divides estate at each generation in which there are living members or deceased members with living issue
EX: Decedent has four children (A, B, C, D) but A, B, C die before decedent - D will take 1/4 share then A, B, and C’s descendants will divide their 1/4 share
a. IF one of the children that died had no descendants then the shares would become 1/3
Per capita by generation
Takers at each generation are treated equally & no division is done at a generational level where there are no survivors
Decedents who take by representation take equal portions if they are of the same generation
Ex: Decedent has four children (A,B,C,D) but A,B,C die before decedent - D will take 1/4 share then estate will be combined again so 3/4 shares will be divided among all the living grandchildren
Per capita with representation
- Hybrid of per stirpes & per capita
- Initial division is done at first generation with living issue then you follow per stirpes for the successor generations
2 principal schemes for descent of property to collateral relatives
I. Parentelic - refers up to certain ancestors and then down to their descendants
II. Degree of Relationship - closest degree of relationship
collateral relatives
Those who descend from ancestors
Advancement definition and rules
- Decedent makes a very large lifetime gift to potential heir
Traditional rule = assumption it was an advancement of inheritance and heir had duty to prove it wasn’t
Modern = lifetime gifts are not assumed to be advancement of inheritance
Hotchpot rule & application
- Process for calculating an intestate share when advancements are to be included
I. Step 1: add together net probate estate + all life time gifts determined to be advancements
II. Step 2: Divide total value by number of heirs & their percentages
III. Final Step: That number will determine total value of each person’s inheritance
- Any heir who received less than that amount will be entitled a portion of net probate estate to make up diff
- Any heir who received more than that amount will be removed and a new calculation minus that person will be done
How to write out a problem for intestacy
- Define intestate succession
- Define property that passes by this
+ Identify typical scheme
- Define C.R
+Two schemes: parentelic & degree of rel.
+ UPC breakdown
+ Discuss C.P breakdown - Escheat
- Identify three calculation schemes
- Define advancements
+Hotchpot - Define representation
