Intestate Distribution: Scheme, Status, and Alteration

Question 1

**Bar exam questions pertaining to intestate succession generally fall into three categories:

Answer 1

(1) questions of scheme
(2) questions of status
(3) questions of alteration

Question 2

A testacy proceeding refers to a proceeding to establish a will or determine intestacy.

Intestacy is total if the person who dies either:

Intestacy is partial when the testator makes a will, but part of the property in the estate

Answer 2

1. total intestacy- person who dies does not make a will or makes a will that is invalid in its entirety.
2. does not pass under the will.

Question 3

EXAMPLE: A leaves an estate (after expenses, debts, and taxes) of $1,000. His will states only that C, D, and E are each to receive $300, and does not specify what is to be done with any excess property. The $100 not distributed under the will shall

Answer 3

pass by intestacy and be distributed according to the laws of descent and distribution.

Question 4

Statutory Provisions (i.e., Questions of Scheme)
General Rule: A surviving spouse will always take some portion of the decedent’s estate. How much of the estate is taken by the surviving spouse depends on what other relatives of the decedent also survive that decedent.
1. If there is no surviving descendant or parents:
the entire estate goes to:

2. If there is a surviving spouse and all surviving descendants are of both the spouse and decedent, i.e., there are no step-children on either side, again:
   the surviving spouse will take?
3. If there is no surviving descendant of the decedent, but he is survived by a parent or parents: the first $ _____ plus ______ of the balance of the intestate estate goes to the surviving spouse.
4. The remainder of the property: goes to?

Answer 4

1. to the surviving spouse.
2. take the entire estate. (collective descendants)
3. $300K plus three-fourths
4. the surviving parent, or if both parents survive, in equal shares to each.

Question 5

If there are surviving descendants of the decedent, all of whom are issue of the surviving spouse, and the surviving spouse has one or more surviving descendants who are not descendants of the decedent:

(1) the first ______ plus _____ of the balance of the intestate estate goes to the surviving spouse; and
(2) the remaining portion of the estate is divided among the decedent’s descendants.

Answer 5

$225,000 plus one-half of the balance of the intestate estate

Question 6

e. If there are any surviving descendants of the decedent who are not also descendants of the surviving spouse:
(1) the first ______ plus ______of the balance of the intestate estate goes to the surviving spouse; and
(2) the remaining portion of the estate is divided among the decedent’s descendants.

Answer 6

$150,000 plus one-half of the balance of the intestate estate goes to the surviving spouse.

Question 7

T or F Bottom line: The more it looks like the surviving spouse will take care of the relatives of the decedent fairly, the more likely that she will take everything. But add in in-laws and steps, and the amount she will take goes down.

Answer 7

True

Question 8

The shares of the estate, if any, to which the surviving spouse is not entitled, and the entire estate if there is no surviving spouse, pass in the following order:
(1) If the decedent’s spouse is not entitled to a share in the estate, or does not survive him, or if the decedent is unmarried: who takes?

Answer 8

the descendants of the decedent take.

Question 9

Intestate “Representation” is defined differently in different jurisdictions. What are the three approaches?

Answer 9

1) Pure/strict per stirpes
2) Modern/modified per stirpes
3) UPC approach: Per capita by representation at each generation.

Question 10

(d) By representation through the following steps:

Answer 10

1) Go to the first generation under the decedent with at least one surviving member.
2) Count the number of live roots, not live members, in that generation.
3) Allocate a share to each living member in that generation.
4) Combine the remainder, if any, and repeat by distributing a share to any qualified takers at the next generation

Question 11

NOTE: If a descendant predeceases the decedent and does not have any descendants of his own to take his share, the share

Answer 11

fails, and it is treated just as if that child had never been born.

Question 12

Under a pure per stirpes approach, often referred to as “strict” or “classic,” decedent’s estate would be initially divided into shares

Answer 12

at the child level, no matter what.

Question 13

Under modified or modern per stirpes, the roots are instead counted at the

Answer 13

first generation from the decedent with at least one living member.

Question 14

(2) If the decedent is survived by neither spouse nor descendant:

Answer 14

the surviving parents of the decedent take in equal shares.

If only one parent survives:that parent takes all.

Question 15

If the decedent is survived by neither spouse, descendant, nor parents:

Answer 15

the descendants of the decedent’s parents or either of them by representation take.

Question 16

If there are no descendants, parents, or descendants of parents, go to the ___________; or if none, to their descendants (e.g., aunts, uncles, cousins). If there is no one there either, the estate will either pass to the next closest relative, or will escheat to the state.

Answer 16

grandparents

Bottom line: Picture the family tree as a series of expanding pyramids. Intestacy laws try to protect those in the closest pyramid to the decedent, based on the notion that those “close in blood” are presumably also “close in heart.” The farther away the relative, the less likely that relative will inherit.

Question 17

Uniform Simultaneous Death Act. Applies to intestate succession as well. Heir must survive decedent by ______ hours. (established by clear and convincing evidence)

Answer 17

120 hours

Question 18

The UPC follows a transplantation theory with regard to adopted children. Explain

Answer 18

The theory holds that an adopted child generally loses any relationship with his natural parents and is generally treated as the natural-born child of the adoptive parents, so that such child can inherit from and through his adoptive parents and their kindred, and the latter can inherit from and through the adopted child.

Question 19

However, if a natural parent dies, and the child is later adopted: within the decedent’s family; or by the surviving parent’s new spouse the child will still have inheritance rights through the?

Answer 19

will still have inheritance rights through the deceased natural parent’s family estate. (still has that connection)

Question 20

In addition, if the natural parent remarries and consents to the adoption of his child by his new spouse: The right of the adopted child to inherit from both of his natural parents is

Answer 20

not affected.

Question 21

T or F A parent-child relationship exists between an individual who is adopted by the spouse of either natural parent.

Answer 21

True

Question 22

EXAMPLE: Following her divorce, Mother M gets custody of Child A and then remarries. If the stepfather, with M’s consent, now adopts the child will A be cut off from his natural mother? can he inherit from M, as well as his natural father?

Answer 22

A will not be cut off from his natural mother and can inherit from M, as well as inherit from his natural father.

Question 23

Stepchildren have no inheritance rights unless they are adopted, or unless

Answer 23

they can prove adoption by estoppel (which is essentially an unperformed contract to adopt).

Question 24

Half-blood relatives are siblings of the decedent by only one of his parents: their representatives take

Answer 24

equally with relatives of the whole blood and their representatives.

EXAMPLE: If the decedent is survived by a brother who shares the same mother and father, and by a half brother who only shares the same mother, both brothers are on an equal footing for inheritance purposes.

Question 25

A child born out of wedlock is considered the child of his mother and her kindred for purposes of intestate inheritance. For purposes of descent, a child born out of wedlock is also considered to be the child of his father if paternity is sufficiently established: (hint: relationship)

Answer 25

(1) the parents marry each other;

(2) during the life child, the father openly holds that child out as his own and receives the child into his home

Question 26

Persons conceived before the decedent’s death but born alive thereafter, take as if they were born in his (decedent’s) lifetime. If the child does not survive 120 hours after its birth:

Answer 26

it is not deemed to have survived the parent.

Question 27

EXAMPLE: While A was pregnant with B’s child, B dies. B’s will provides that each of B’s children will get $25,000 from his estate. X, the unborn child, was born three months after B’s death. Will X get the $25K from B’s estate?

Answer 27

Yes As long as X survives 120 hours after his birth, he will get $25,000 from B’s estate.

Question 28

Similar to ademption by satisfaction. If a person dies intestate as to all or any part of his estate, property that he gave to an heir in his lifetime is treated as an advancement against the estate only if:

what is the effect of an advancement?

Answer 28

it is specifically or generally declared in a contemporaneous writing by the decedent; or
b. acknowledged in ANY writing by the heir as an advancement.

If property given is an advancement, it will reduce the amount of the person’s intestate share by the value of the advancement.

Question 29

If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the division and distribution of the decedent’s intestate estate, unless

Answer 29

the decedent’s contemporaneous writing provides otherwise.