Intestate Succession

Question 1

What are probate assets?

Answer 1

Probate assets are assets that pass according to terms of the will.

Question 2

What does it mean for assets to pass according to terms of the will (to be probate assets)?

Answer 2

These are assets in your name with no beneficiary designation otherwise - they are not jointly held. They will not pass by law.

Question 3

What are examples of probate assets?

Answer 3

(1) Tenants in common,
(2) bank account in decedent’s individual name,
(3) bonds,
(4) cars with one owner,
(5) tangible personal property.

Question 4

What are non-probate assets?

Answer 4

Non-probate assets are assets that are going to pass by operation of law, beneficiary designation, or be jointly held.

Question 5

What are some types of non-probate assets?

Answer 5

(1) Property jointly owned - like tenancy by the entirety, joint tenancy, etc.
(2) POD Bank Accounts
(3) ITF - In Trust for Accounts
(4) Trusts
(5) Assets w/ beneficiary designation (other than the testator himself) - IRA, 401k, life insurance proceeds, annuities
(6) Homestead

Question 6

What does intestate mean?

Answer 6

Intestate means to die without a will.

Question 7

What is a beneficiary?

Answer 7

In an intestate estate, a beneficiary is an heir at law. In a testate estate, a beneficiary is a devisee.

Question 8

What is an heir?

Answer 8

Heirs are persons, including the surviving spouse, who are entitled under statutes of intestate succession to the decedent’s property.

Question 9

Who is a child?

Answer 9

A child is a person entitled to take as a child under the Florida code by intestate from a parent whose relationship is involved. This excludes stepchildren, foster children, grandchildren, or more remote descendants.

Question 10

Who is a descendant?

Answer 10

A descendant is a person in any generational level down an applicable individual’s descending line. This includes children, grandchildren, and more remote descendants. A descendant is also known as a lineal descendant or “issue.”

Question 11

Who is a collateral heir?

Answer 11

A collateral heir has TWO characteristics:
(1) NOT decedent’s ascendant (parents) or descendant
(2) They and decedent have common ancestor

Question 12

Who is a parent?

Answer 12

A parent excludes any person who is only a stepparent, foster parent, or grandparent.

Question 13

What is intestate succession?

Answer 13

Intestate succession is the passing of property when a person dies without a will, revoked will, a missing will, or partial intestacy. The state will tell us how the property passes.

Question 14

Under Florida’s intestate distribution pattern, who takes first?

Answer 14

The surviving spouse takes first in Florida’s intestate distribution pattern.

Question 15

If there is no surviving descendant of the decedent, what does the spouse get under Florida’s intestate distribution pattern?

Answer 15

The surviving spouse will get the entire estate.

Question 16

If there is 1 or more descendants, all of whom are also the SS’s descendants, & SS has no other descendant?

Answer 16

The surviving spouse will get the entire estate.

Question 17

If there is 1 or more descendants, not lineal descendants of the SS, what does the SS get?

Answer 17

The surviving spouse will get half of the estate.

Question 18

If there is 1 or more descendants, all of whom are also the SS’s descendants, & SS has 1 more descendants who are NOT descendants of the decedent?

Answer 18

The surviving spouse will get half of the estate.

Question 19

Who gets the part of the intestate estate that is not passed to the surviving spouse?

(explain the order of distribution) (D.A.BS.GP.DSK.ES)

Answer 19

This is the other heirs’ share.

First, all descendants of the decedent would inherit including those from other marriages.

Next, if there are no descendants, then the decedent’s parents equally - remember this does not include step or foster parents unless they adopted the decedent.

Third, if no parents are alive then to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.

Fourth, if there are no living parents or siblings then 1/2 to decedant’s paternal & 1/2 to decedent’s maternal (in the following order) grandparents equally (or survivor of them), if grandparents dead then to uncles & aunts and descendants of deceased aunts and uncles, or if dead - other kinred who survive. Kindred are the decedent’s grandparents’ descendants.

Fifth, if none of the above are living, the other share goes to the kindred of the last deceased spouse of the decedent.

Finally, if none of the above exist the other share is escheated to the state.

Question 20

What are the three main distribution schemes and what are their differences?

Answer 20

(1) Florida’s Pure Per Stirpes scheme - method of dividing estate where the group of distributees takes the share their deceased ancestor would have been entitled to, thus taking by right of representation. An intestate estate is divided into equal shares of (i) surviving members in the generation nearest decedent (even if no one from that generation survived) OR (ii) deceased members in the generation nearest decedent who left surviving descendants. If the deceased member left no surviving descendants –> the member doesn’t receive a share.
(2) Per Capita with Representation - method of dividing estate where equal share is given to each of a number of persons, all of whom stand in equal degree to decedent without reference to their right of representation. This is very similar to Pure Per Stirpes except start at the first level with living members.
(3) Per Capita at each Generation (UPC) - estate divided into shares at 1st generation with survivors and share created on behalf of deceased members of that generation are combined & distributed per capita among younger generation heirs.

Question 21

What happens in special circumstances such as half blood heirs?

Answer 21

Half bloods get 1/2 of whole bloods, but if all are half bloods they share in equal parts. In a problem, identify the # of parents shared by each sibling with the deceased.

Ex. A = shares 2 parents, B = shares 2 parents, C shares 1 parent; total 5 shares (240k divided by 5 = 48k).

Question 22

What is the effect of adoption on inheritance?

Answer 22

Adoption terminates the legal rights of the biological parent.
The adopting parent assumes parental rights.
The adopted person becomes a lineal descendant of adopted parent & natural kindred of all members of adopting parents’ family, AND the adopted person is not a lineal descendant of his natural parents, or kindred of any member of natural parents’ family.

Question 23

What are the three exceptions to when an adopted child can still inherit from a natural parent?

Answer 23

(1) Birth parent marries & spouse adopts the child
(2) Birth parent is deceased & child later adopted by spouse of natural parent
(3) adopted by a close family member

Question 24

What is the purpose of virtual adoption?

Answer 24

The purpose of virtual adoption is to allow a “supposed-to-have-been adopted” child to take an intestate share and to prevent unfair results.

Question 25

What are the elements of virtual adoption?

Answer 25

(a) agreement between natural and adoptive parents
(b) performance by natural parents in giving up custody
(c) child lives in home of adoptive parents
(d) partial performance by foster parents in taking in child & treating as own
(e) intestacy of adoptive parents

Question 26

What are the effects of virtual adoption?

Answer 26

(1) Does NOT terminate right to natural parents’ intestate estate
(2) virtually adopted child CAN be considered an heir

Question 27

How are out of wedlock births treated in Florida?

Answer 27

For the purposes of intestate succession, a person born out of wedlock is a (1) lineal descendant of his or her mother and is one of the natural kindred of the mother’s family. (Therefore, he or she inherits from mom’s side.)

The person is also a (2) lineal descendant of father’s family and inherits IF either:
(a) birth parents participated in marriage ceremony (before or after birth)
(b) paternity of the father is established by adjudication before or after dad’s death
(c) paternity is acknowledged by dad in writing

Question 28

How are after-born heirs treated in Florida?

Answer 28

Heirs of decedent CONCEIVED before his death inherit as if they had been born in decedent’s lifetime - includes grandkids, etc.

Question 29

How are assisted reproductive methods treated?

Answer 29

Child conceived from eggs/sperm of persons who died BEFORE transfer of eggs/sperm - NOT be eligible UNLESS expressly provided for by decedent’s will