Intestate Succession

Question 1

What are the steps of intestate succession?

Answer 1

First step is to identify the members of the family who are the heirs at law.
Then ask: is there a spouse?
Then ask: are there other issues affecting the distribution of the estate?

Question 2

If no lawful will, the property passes through intestate succession.
No lawful will if:

Answer 2

O never executed a will
The will was executed but is invalid.
The will is never admitted to probate
(Rare) the will calls for intestacy

Question 3

If intestate, there is a practical problem of the family knowing who the heirs are and proving their rightful ownership to a third party. They can:

Answer 3

Do nothing
Submit an affidavit of heirship
Judicial determination of heirship. Attorney ad litem appointed to represent the unknown heirs.

Question 4

Intestacy: Descent and Distribution

Answer 4

Passage of property when the decedent dies without a valid will

Question 5

Descent

Answer 5

Succession to real property. Compare Distribution

Question 6

Distribution

Answer 6

Succession to personal property. Compare Descent.

Question 7

Heir

Answer 7

A person entitled to take under intestate succession laws. No heirs when the person is alive. You may be an heir but you cannot have heirs. The persons who would be your heirs if you were to die intestate are often called your presumptive heirs or your heirs apparent. Different than Beneficiary (those who take property under a will)
Heirs are ancestors, descendants (most common), and collateral relatives.

Question 8

Ancestor

Answer 8

A person related to the decedent in an ascending linear line (parent and grandparents). Compare Descendant and Collateral relative.

Question 9

Descendant

Answer 9

A person related to the decedent in a descending linear line (children and grandchildren). Compare Ancestor and Collateral relative.

Question 10

Collateral Relative

Answer 10

A person related to the decedent but not in a linear line (siblings, nieces and nephews, aunts and uncles, and cousins

Question 11

Affinity Relationship

Answer 11

A relationship by marriage (in-laws or stepchildren)

Question 12

What law governs the distribution/who the heirs are? (Conflict of laws)

Answer 12

If real property: The law of the situs. Where the property is located will be the jurisdiction that controls
If personal property: the law of the decedent’s domicile

Question 13

Intestate succession: surviving spouse

Answer 13

Only GAP principal is that the surviving spouse IS an heir. On the exam, if applying GAP principle, assume O resides in a common law JX unless told otherwise

Question 14

Intestate succession regarding a surviving spouse in a community property jurisdiction

Answer 14

surviving spouse retains the ½ undivided interest and the decedent’s ½ interest passes through intestate succession if:
(1) no child or other descendant of the deceased spouse survives the deceased spouse; or
(2) all of the surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse.

Question 15

Intestate succession if O is not married:

Answer 15

The estate passes to descendants.

Question 16

Intestate Succession: Representation main rules

Answer 16

A living ancestor cuts off any inheritance rights of his or her decedents.
The decendent of a deceased ancestor steps into the shoes of the deceased ancestor because DEAD GUYS CANNOT INHERIT PROPERTY. Predeceasing O means they only had a mere expectancy.

Question 17

What is per stirpes respresentation

Answer 17

Common law method of representation, but not the majority anymore.
Divide initial shares at the first generation even if no one from that generation survived the intestate. Then, the younger generation descendants divide the share the older generation descendant would have received had that older generation descendant survived the intestate.

Question 18

What is per capita with representation

Answer 18

Majority and GAP principle, including TX.
The living ancestor still cuts off inheritance to their descendants, but per captia representation, you divide the initial shares at the first generation with surviving members.
So if all takers are of the same generation, they take per capita (equal shares). Only if takers are of different generations will the younger generation step into the shoes of their ancestor.

Question 19

What is per capita at each generation

Answer 19

Once the division into shares is done at the first generation with survivors, the shares created on behalf of the deceased members of that generation are combined and distributed per capita among the younger generation heirs. All like-related individuals are treated the same.

Question 20

Intestate Succession: Parents

Answer 20

If both parents are alive, but no spouse or descendants, the parents take 50/50. GAP
If only one parent is alive and there are siblings, difference among the states: No GAP
In some states: the parent gets 100%
In some states: the parent gets 50% and the siblings split the other 50%.
Texas: 201.001(c) parent gets 50% and the siblings split the other 50% (siblings descendant if representation.) If no siblings or sibling’s descendant, all goes to the surviving parent.

Question 21

Intestate Succession: Collaterals

Answer 21

If no spouse, no descendants, no parents, and no siblings (and their descendants):
Interests pass to second-line collaterals (grandparents, uncles, aunts, and cousins, etc.)
No GAP principle. Big differences among the states, two basic approaches:
Next of Kin system:
Parentelic system:

Question 22

Intestate Succession: Collateral: Next of Kin System

Answer 22

Must determine who the heirs are based on the degree of relationship using the table of consanguinity.
Degree calculation depends on if you are in a civil law system or a canon law system. Those of the closest degree take and those at that degree share equally.

Question 23

Intestate Succession: Collateral: Parentelic System

Answer 23

Search each side of the family until an ancestor or descendant of an ancestor is found. The estate is then divided into two halves (moieties). One of the moieties passes to the intestate’s maternal grandparents and the other portion passes to the paternal grandparents. (TX)

Question 24

Posthumous heirs

Answer 24

A posthumous heir is an heir conceived and in the mother’s womb while the intestate is alive, but who is not born until after the intestate’s death.
Common law: a posthumous heir was treated as capable of inheriting if the heir was thereafter born alive.
Modern law has widely adopted the common law rule, but some states differentiate based on the relationship between the intestate and the posthumous heir.

Question 25

Adopted individuals: Adopted child inheriting from adoptive parents:

Answer 25

All states recognize that if there is an adoption under statute, we treat the adopted child as the child of the adoptive parents

Question 26

Adopted individuals: Adopted child inheriting from biological parents:

Answer 26

States differ, no gap. TX says it depends. Courts can cut off inheritance at the time of adoption.

Question 27

Adopted individuals: Adoptive parents and kind inheriting through adopted child:

Answer 27

GAP: the adoptive parents and their kin will inherit from and through the adopted child as if the adopted child were their biological child.

Question 28

Adopted individuals: Inheritance by biological parents:

Answer 28

Adoption cuts off the inheritance of biological parents from the deceased child.

Question 29

Adopted individuals: Equitable adoption:

Answer 29

Occurs when a “parent” acts as though they have adopted the child even though a formal court-approved adoption never occurred.
Factors in making a determination of whether an equitable adoption occurred:
(1) The parent breached an agreement to adopt
(2) The parent made a good-faith attempt to adopt that failed for some reason; or
(3) The parent held the child out as actually having been adopted.
When the parent dies, the equitably adopted child is entitled to share the estate as if adoption actually occurred (so treated like a biological child)
But, in some states, the parent is often not entitled to inherit from the deceased child because it is seen as the parents’ fault that formal adoption did not take place so the equities are not in their favor.

Question 30

Adult Adoption:

Answer 30

In most states, one adult can adopt another adult (typically for inheritance purposes because heirs have standing to contest the validity of a will)
Adult adoption must be finalized before she dies. Statutory process, so hard to challenge by distant relatives.

Question 31

Non-marital children:

Answer 31

GAP: modern law is that they can inherit from both.
Most if not all states permit the nonmarital child to inherit from and through the biological mother without any difference in the amount of proof.
Many states impose higher standards on a nonmarital child to inherit from the father, especially if the father did not recognize or take other steps to make paternity clear during the child’s lifetime.

Question 32

Children from alternative reproduction technologies:

Answer 32

No GAP. Most of the existing legislation is not extensive or is designed to address issues of child support and child custody rather than inheritance rights.

Question 33

Stepchildren:

Answer 33

GAP: stepchildren may not inherit from their stepparents. Some states say they can under very specific circumstances.

Question 34

Half-blooded collateral heirs:

Answer 34

Only relative for collateral relatives, not lineal decent or assent. Think siblings, aunts, uncles, etc.
No GAP principle. Split by states:
Texas AND Common Law: Half-blood gets HALF of the interest as full blood.
Some states say half-blood heirs are treated equal to whole blood.

Question 35

Non-US citizens (aliens)

Answer 35

Modern GAP: non-citizens are treated no differently than citizens when it comes to inheritance rights. (F note: war may change this)
(TX too)

Question 36

Situations affecting the right of inheritance: Foreiture

Answer 36

At common law, a person who was convicted of a felony forfeited all of the person’s property to the government, so there would be no property for the person’s heirs to inherit.
Most states have abolished forfeiture for most felonies, but may retain it for specific crimes.

Question 37

Situations affecting the right of inheritance: Corruption of blood:

Answer 37

At common law, a person could not inherit land if the person was convicted or imprisoned for certain offenses (usually treason)
Never gained popularity in the U.S. Imprisoned people, even on death row, may inherit property.

Question 38

Situations affecting the right of inheritance: Heir killing the intestate

Answer 38

Most states do have forfeiture statutes for murdering the intestate.
Some states require conviction and differ if involuntary manslaughter conviction. The heir is then disqualified from inheriting.
Texas is different from most states when it comes to an heir killing the intestate. Rejects the general concepts and only states that if a beneficiary of a life insurance policy is convicted for willfully bringing about the death of the insured, they don’t get the proceeds.

Question 39

Situations affecting the right of inheritance: Abuse of the deceased child

Answer 39

Texas Estate Code 201.062: parents abuse of the child can effect the parent’s inheritance rights.

Question 40

Situations affecting the right of inheritance: Minor or an incapacitated adult

Answer 40

No limitation on inheritance.
The problem is that they cannot manage the property. Incapacity of minority or other incapacity. They can OWN the property, but they cannot manage it.
General rule: Parent of the minor is the minor’s natural guardian, so they are the guardian of their person. They are NOT the minor’s automatic guardian of their estate.

Question 41

Special Situations in intestate succession: Survival

Answer 41

Dead guys can’t inherit! So the heir apparent must in fact survive the decedent
Common law: survival by an instant in time.
Modern law: Survivorship statutes. GAP: Requires the heir to survive the decedent by 120 hours

Question 42

Special Situations in intestate succession: Disclaimers

Answer 42

Modern law: Beneficiary under a will and heir at law can refuse to accept the disposition by disclaiming the property.
GAP: an heir or devisee may disclaim or renounce their share in the estate under the applicable state’s statute.
If statutory disclaimer, makes it as if the disclaiming heir or devisee predeceased O! (Another legal fiction that applies to both intestacy and wills).

Question 43

What affect does disclaiming have on creditors?

Answer 43

If acting under state law: Legal fiction says that if you disclaim, it is as if they never owned the property in the first place because the disclaimer is effective as of the death of the decedent (relates back). Cannot be a fraudulent transfer because they “never” owned it in the first place.
If acting under federal law (filed for bankruptcy and then disclaimed) federal law would preempt state law and federal law does not allow disclaimers to avoid creditors.
If A has an IRS federal tax lien, the state court disclaimer does not effect the rights of the IRS.

Question 44

Requirements of a disclaimer

Answer 44

If trying to avoid gift tax, must comply with the IRS code:
Must not have accepted any benefits of the property (can’t take advantage of the property and then disclaim.)
Disclaimant cannot redirect the property.
Disclaimant must disclaim within 9 months of the date of death.
No GAP, but most states follow the above. But a lot of states (including TX) say no strict time limit, just must be before accepting the benefits.

Question 45

Special Situations in intestate succession: POST-death assignment

Answer 45

Post-death, those with a property interest may assign and creditors may attach because of the attributes of ownership!

Question 46

Special Situations in intestate succession: Advancements

Answer 46

Whether it is an advacement or a gift depends on O’s intent!
If the facts tell us it’s an outright gift, it has no effect on the disposition of O’s estate when he dies.
If it is an advancement (which is also a gift), it does affect the disposition of the estate.
Modern GAP: we presume it is a gift unless the other heir can show that O intended it to be an advancement.
If it is an advancement: we look to the common law “hotchpot.” The advance’s share of the advancer’s estate is reduced to compensate for the advancement by treating the advanced property as if it were still in the advancer’s probate estate when computing the size of the intestate share.
Take the total value of the probate estate + the advancement. Then split between the heirs like normal. BUT then you subtract the advance from the heir that received it.
Think: If it is an advancement, is it actually a release??

Question 47

Special Situations in intestate succession: Loan rather than an advancement

Answer 47

If it is a loan: O loaned A 100k:
If A already paid it back, the loan is irrelevant to the disposition of the estate.
If he has not paid it back:
If SOL has run: Right of retainer: if the other heir(s) can prove the upaid loan, the PR must create a hotchpot EVEN IF the SOL has run on collectable debts
If SOL has not run:
Insolvent estate: May need to file suit against A to pay off O’s creditors.
Solvent estate: other heirs are going to insist they are owed their interest in that 100k (If A and b heirs, b would insist he is owed 50k.) A would just pay b the money directly.

Question 48

Special Situations in intestate succession: Releases

Answer 48

A release is really a 3rd party beneficiary contract in favor of the other heirs
If there is a proven advancement, is there an executed document where A agrees that at O’s death, A releases his interent in O’s estate? MUST BE CONSIDERATION because this is contract theory.
If A executed the release AND predeceased O, is little a bound by the release?
General rule: no. a is not taking from big A, they are taking from O. a was not a party to the contract.
Exception: language in the release that the parties intended to cut-off A and descendants will but off a.

Question 49

Special Situations in intestate succession: PRE-death assignment

Answer 49

If the assignment was NOT supported by consideration: Only a mere expectancy pre-death and cannot assign something you don’t have an ownership interest in!
If the assignment WAS supported by consideration: 3rd party can enforce the assignment on a contract theory.

Question 50

Special Situations in intestate succession: equitable conversion

Answer 50

Equitable conversion: Seller owns legal title as the trustee for the buyer and buyer holds equitable title.
If the intestate (seller) dies prior to executing the contract, the property passes to the heirs entitled to realty
If the intestate (seller) dies after signing the contract, the property passes as personalty to the next of kin.

Question 51

Special Situations in intestate succession: intentional disinheritance

Answer 51

Modern rule: no forced inheritance, even for minor children. But in order to exercise that, you must comply with the statute of wills!