Intestate Succession

Question 1

Define intestate succession

Answer 1

Any property not passing by a valid will or by operation of law; a state’s applicable intestacy statute will govern

Question 2

What happens if the decedent leaves only a surviving spouse and no issue?

Answer 2

Most states: surviving spouse will receive entire estate

Some UPC states: a certain portion will be given to decedent’s parents and their issue

Question 3

What happens if a decedent leaves a surviving spouse AND issue (children/grandchildren)?

Answer 3

Most states: surviving spouse will receive a certain portion of the estate (either certain percentage or certain amount plus percentage) and the issue will take a certain percentage.

UPC: surviving spouse receives entire estate if all issue are issue of surviving spouse

Question 4

What happens if the decedent does not leave a surviving spouse?

Answer 4

The estate passes to the decedent’s issue

Question 5

What happens if the decedent does not leave a spouse or issue?

Answer 5

The estate passes to the decedent’s surviving parents equally or to one parent (if only one survives).

If no parents, then estate passes to the issue of decedent’s parents.

Question 6

What type of intestate distribution is used in the majority of states?

Answer 6

Per capita with representation

Question 7

Describe per capita with representation

Answer 7

Majority rule; property is divided into equal shares at first generational level at which there are living takers. Each living person at that level takes a share, and the share of each deceased person at that level passes to their issue.

Question 8

Describe classic/strict per stirpes distribution

Answer 8

Used by small minority;

One share is created for each child and one share for each deceased child that has at least one surviving descendant; divides shares at child generation even if no child survives the intestate

Question 9

Describe per capita at each generational level distribution

Answer 9

Modern trend and UPC;

Make the initial division at the first generational level where there are living takers, but shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level. (Persons at same level of kinship always take equal shares)