Intestate Succession

Question 1

What is intestate succession?

Answer 1

Intestate succession explains how property is divided when a person dies without a will and also explains how property is divided if a will is invalidated in part or in whole.

Question 2

What is an heir?

Answer 2

An heir is an individual who takes a share of a decedent’s probate estate when decedent dies intestate.

Question 3

What is a testamentary beneficiary?

Answer 3

A testamentary beneficiary is someone who takes a bequest from a will that would not necessarily inherit from the decedent if they were to die intestate.

Question 4

What is intestate?

Answer 4

Intestate is when a decedent dies without a will

Question 5

Share of the surviving spouse

Answer 5

Unless the decedents parents survive and/or the decedent has children that are not common with the spouse, the decedent’s spouse gets everything.

Question 6

What are the two methods to determine the share of children?

Answer 6

Per capita at each generation and per capita with representation (or “modern per stirpes)

Question 7

What is per capita at each generation?

Answer 7

Per capita at each generation means the basic number of shares is determined by finding the first generation where there are issue, giving one share for each of such living issue and one share for each person in that generation who predeceased the decedent but left issue surviving and then combining all the shares of the deceased persons into a single share and distributing it equally.

Question 8

What is per capita with representation?

Answer 8

This means that the heirs receive the representative shares of their parents.

Question 9

Who is a child for purposes of intestate succession?

Answer 9

Adopted law, children born out of wedlock, and half-blood children.

Question 10

Are adopted children considered “children” for purposes of intestate succession?

Answer 10

At common law, no. However, under modern view, all states grant adopted children inheritance rights.

Question 11

Does an adopted child receive an inheritance from his biological parents?

Answer 11

No. An exception occurs if a stepparent adopts a child, the child will inherit from the biological parent and the stepparent.

Question 12

Do children out of wedlock receive an inheritance from his biological parents?

Answer 12

At common law, a non marital child could not inherit from either parent. However, states grant such children the right to inherit from their mothers and to inherit from their fathers when at least one statutorily defined method of establishing paternity has been met.

Question 13

Can half-blood siblings receive an inheritance?

Answer 13

Under the UPC, half-blood relatives receive the same share as whole-blood relatives

Question 14

What is the general rule for intestate succession if there is no spouse and no children?

Answer 14

Generally, the property will be distributed first to the parents, the descendants of the parents (siblings), and then to more remote ancestors and their descendants.

Question 15

What are the two methods of distribution to distribute property if there is no spouse and no children?

Answer 15

The parentelic method and the consangenuity method.

Question 16

What is the parentelic method?

Answer 16

Under the UPC and in most states, this method provides that the nearest common ancestor will take before a more distant ancestor.

Question 17

What is the consangenuity method?

Answer 17

This is a civil law method that distributes property depending on the degree of relationship to the decedent.

Question 18

What is first degree of consangenuity?

Answer 18

Children and parents of the decedent

Question 19

What is second degree of consagenuity?

Answer 19

Brothers, sisters, grandchildren and grandparents of decedent

Question 20

What is third degree of consagenuity?

Answer 20

Children of the grandparents, not including the parents, great-grandchildren of the decedent, nieces and nephews of the decedent, aunts and uncles of the decedent, great-grandparents of the decedent.

Question 21

What is fourth degree of consagenuity?

Answer 21

Children of the decedent’s nieces and nephews, children of decedent’s uncles and aunts, and children of the great-grandparents not including grandparents and parents.

Question 22

What is an advancement?

Answer 22

An advancement is an issue when the decent died without a will but gave a child a gift during his or her lifetime.

Question 23

Is an advancement deducted from a child’s inheritance?

Answer 23

It depends on the jurisdiction. Under common law, the lifetime transfer to an heir would be treated as a down payment to the heir’s intestate share and thus is taken into account. In majority law, most states ignore the lifetime transfer unless there is evidence to show that the decedent intended the gift to be an advancement.

Question 24

What is ademption by satisfaction?

Answer 24

Ademption by satisfaction applies when there is a will. The UPC will not make a lifetime gift a prepayment unless the (1) the will says so (2) the testator declares in contemporaneous writing that the gift is to be deducted from the will or (3) the devisee acknowledges in writing that the gift is in satisfaction.