Intestate Succession Flashcards
How many Americans die without a will?
1/2
Who gets the property if there is no will?
- No one
- Escheat to the state
- List of recipients handed out by the state
- Hearings to determine the intent of the dead
Determinative Order
- Spouse (2-102)
- Issue (2-103(C))
- Parent (2-103(d))
- Issue of Parent (2-103(e/f))
- Grandparents (2-103(g))
- Step-descendants (2-103(j))
- State (2-105)
Why pass to family first?
Want relatives to succeed the decedent’s assets, they are the natural object to the decedent’s bounty
Why does giving the choice of who succeeds important?
If we write the rules to guess what the decedent wants, they will waste less time writing wills and
giving to the closest relative will make law seem fair
might reduce theft
Community Property States
LA, TX, NM, AZ, CA, NV, ID, WA, WI
Community property definition
Earnings from labor during the marriage + earnings from community property, can include other income during the marriage
How is the property communal
Both of the spouses, even if just one name is on the title
When spouse dies in CPS
(1) alive spouse’s half of the community property and the surviving spouse’s separate property are kept by the surviving spouse
(2) decedent’s half passes under the will
(3) NO WILL?
(a) Passes to surviving spouse (CA) - COMMUNITY PROPERTY
(b) Surivivng spouse + others (TX) in a way similar that happens in NCPS - SEPARATE PROPERTY
Noncommunity property states
If the decedent is intestate, the surviving spouse takes a share of the decedent’s estate
Dower
Common law idea, LE in 1/3 of the lands which the decedent was seized during the marriage of an inheritable estate (few today)
Traditional Statutory Rule in NCPS
1/3 or 1/2 of the probate estate to the spouse
If D leaves issue, and if D + S have all the same issue, OR if D leaves no parent or issue
S takes all
If D leaves no issue but leaves a parent, the parent takes:
1/4 of the amount above $300K
If D is survived by spouse and siblings,
Sibling takes NONE
If one or more of the decendent’s surviving descendants are not descendants of the surviving spouse -
Spouse gets $150K plus 1/2 of the rest, giving the smallest portion to the spouse
O has a child, A, by mate X. When A is two years old, O and S marry. They have children, B and C. When A is 11, O dies leaving an intestate estate of $426,000 (after allowances and
creditors)
Spouse: 150K + 1/2 of $276K = $288K
Kids: $46K each
protect the stepkids**
If all of the decedent’s surviving descendants are also
descendants of the surviving spouse and the surviving
spouse has one or more surviving descendants who are not descendants of the decedent
Spouse gets $225K plus 1/2 of the rest
UPC 2-102(4) assumes
the survivor might be like Cinderella’s mom, and the law should help the decedent reduce that favoritism
What happens to the portion of the decedent’s estate that does not pass to the spouse under UPC 2-102?
The next in line are the issue (2-103(c))
If one descendant in a generation of takers is predeceased, leaving an issue?
The issue takes place of the predeceased descendant
If 2 of D’s issue in the same generation predecease D and leave issue, the result varies by state (4 options)
- Strict per stirpes
- Modern per stirpes
- 1969 UPC
- 1990 UPC
Classic (Strict) Per Stirpes
Starting with the decedent’s children, divide by the stocks (counting living and dead with living descendants); do the same at each generation
Modern (Modified) Per Stirpes
Starting at the oldest generation in which a descendent of the decedent is alive, distribute per stirpes (a court might read “per stirpes” this way)
1969 UPC
Per capita with per capita representation: skip any generation without living descendants, then distribute to living roots and from any deceased roots by representation as if each root were a decedent
1990 UPC
Per capita at each generation (redefining representation), skip any generation without living descendants, distribute to living roots, at every generation collect the shares of deceased roots (those died before the decedent) and drop the bundle to all of their issue
If no issue, parent, or spouse
Pass by representative to issue of parents
No issue, spouse, parent, descendants of parents
pass to the grandparents and the issue of grandparents in the same manner as to parents and their issue
No spouse, grandparents/descendants
pass by representative to issue of deceased spouses of decedent (i.e. step kids - but many stakes do not allow)
Disclaimants share in the per stirpes web
Dropped down as if they were dead to their issue, cannot be manipulated others (can in some states)
Laughing heir
Heirs who take but do not know the decedent
Who is a child under the UPC?
UPC does not allow for stepkids to be considered
Hall v. Hall
Termination of parental rights means that the child cannot inherit
Child not defined by WV legislation
UPC 2-114
Bars bad parents from taking from their children (parent rights were terminated, child died before 18, parental rights could have been terminated non-support, abuse, neglect, other actions/inactions)
UPC 2-119
Parent-child relationship does NOT exist between adoptee + the individual who was adoptee’s parent before adoption UNLESS
1. Otherwise provided by court order or law
2. Adoption was: by spouse of parent before adoption, was by a relative or spouse or surviving spouse of relative of parent before adoption
There is a parental-child relationship when:
the child and the person’s de facto parent have been adjudicated (any age child)
Hall v. Vallandingham
An adopted person does not have the right to inherit from the estate of a natural parent who dies intestate, nor the right to inherit through that natural parent by way of representation
In re Gallegos
A parent-child relationship exists between both genetic parents and an individual who is adopted by a relative of a genetic parent… but only for the purpose of the right of the adoptee or a descendent of the adoptee to inherit from or through either genetic parent”
O’Neal v. Wilkes
Georgia 1994 - No legal contract because the parties to the contract had no authority to execute the contract regarding the adoption of Hattie
Hattie performed, but it did not matter because there was no legal authority to the contract
Equitable or Virtual Adoption
recognized by many states
allows courts to find adoption where the adoption formalities were not completed
Child can be an heir, devisee of class gift to children, heir of the family
Parent cannot inherit from them
Dehart v. Dehart
No contract required: only intent and consistent action showing intent is enough in equitable adoption
Born out Wedlock
Common Law: no one
UPC 2-117: parent-child relationship extends equally to every child + parent REGARDLESS of marital status of parents
What some states require of fathers
Father acknowledges the child
Father married the mother
Child proved paternity during father’s life; or
Child proved paternity by clear and convincing evidence after father’s death
Astrue v. Capato
Twins born 18 months after the decedent passed
Florida 1994 – children were NOT children of the decedent under the law
The semen was NOT yet transferred to the mother
Potential title transfer conflict
UPA 708: Parental Status of Deceased Individuals
if an individual INTENDS TO BE A PARENT of a child convinced by assisted reproduction DIES during the PERIOD BETWEEN THE TRANSFER OF THE GAMETE AND BIRTH, the individual’s death does not preclude the establishment of parentage if the individual would parent the child
REQUIRES: Tranfer, then death, then birth of child
Consent in record that includes what would happen if the parent died in before the death and the intent was clear by C+C evidence
UPA 708 Length of Time/UPC 2-104(b)(3)
Embryo must be used no longer than 36 months after death or no later than 45 months born after death to inherit
Astrue v. Capato
In FL, twins cannot inherit from dad because they were born 18 months after the father passed away
UPC 2008 - YES
UPC 2019 - maybe
Why limit a time for birth?
1) interest in finality
2) Intent of decedent could be different for those born sooner than later
Social Security is
a system of social insurance, not a savings account
Problems with Nearly Simultaneous Deaths
1) Issue with who takes next
2) Determining key facts can be costly
Janus v. Tarasewicz
Both husband and wife died from poisoning
Under the Uniform Simultaneous Death Act, the party whose claim to the decedent’s assets or insurance must prove this by a C+C evidence there was outlasting by 120 hours
The evidentiary standard for nearly simultaneous deaths
Clear and convincing
Negative wills
Common law: no effect, pass through normal intestacy
UPC 2-101: act like disclaim, accept the negative will
Advancement
gift by the decedent during life that reduces an heir’s intestate share at death
According to UPC 2-109, who can be charged with an advancement?
Heirs (including next of kin) —– those who can take in intestate succession
States have more narrow rules
Does advancement with partial intestacy work?
Common law: No
UPC: yes
What is the rebuttable presumption regarding that the decedent’s intent as to whether a gift is or is NOT an advancement?
Common law: gift, during life, to those who qualify is an advancement (only in total intestacy)
UPC 2-109: presume no advancement, unless there is evidence there is (writing)
Hotchpot
Common law method of determining the distribution where there is an advancement
How does hotchpot work?
advancements are added to the probate estate to make up the hotchpot estate, then it is divided according to the rules of intestate succession
O dies intestate, leaving $50,000, and is survived by 3 children, A, B, and C. With writings to show O’s intent, A had been given $34,000 as an advancement and B had been given $6,000 as an advancement. If B chooses hotchpot, what do A, B, and C end up with?
$56K in hotchpot, divided between B + C at 28K each. If A is included there would be $90K in hotchpot, and then it would be divided as 30K each
Possible bias in the advancement
1) Deviation by birth order
2) Deviation based on sex
