Intestate Succession

Question 1

what happens to the decedents intestate estate if there is no issue, parent, issue of parent, and only one set of grandparents or issue of grandparents (only material or paternal side but not both)

Answer 1

If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents on the paternal but not the maternal side (or vice versa), THE ENTIRE INTESTATE ESTATE PASSES TO THE DECEDENT’S RELATIVES ON THE SIDE WITH ONE OR MORE SURVIVNG MEMBER BY REPRESENTATION

Question 2

Under the UPC, what is the exact share of a surviving spouse in a separate property state if there are no descendants but there is a surviving parent.

Answer 2

if the decedent leaves no surviving descendants but does leave a surviving parent, the surviving spouse receives the first $300,000 plus 3/4 of the balance of the intestate estate

Question 3

If a transfer is deemed to be an advancement, what is the valuation date?

Answer 3

under the UPC, property advanced is valued as of the time the heir came into possession, or enjoyment, of the property or as of the time of the decedents death (whichever is first)

Question 4

What is the share of surviving spouse?

Answer 4

An intestate decedent’s surviving spouse takes a share of the intestate estate as provided by statute

Question 5

What is the burden of proof for simultaneous death?

Answer 5

Clear and convincing evidence

Question 6

what is intestate succession?

Answer 6

the means of distributing any part of a decedent’s estate not effectively disposed of by will

Question 6

May adopted children inherit from their adoptive parents and their relatives?

Answer 6

Yes, adopted children inherit from adoptive parents & relatives & vice versa

Question 7

What is the simultaneous death rule?

Answer 7

Under the Uniform Simultaneous Death Act (USDA), when disposition of property depends on the order of death and persons die simultaneously, an individual must’ve survived the decedent by 120 hours to take as an heir.

Question 8

How do advancements affect the value of the intestate’s estate? (Hotchpot estate)

Answer 8

Any advancements received by actual heirs are added to the value of the intestate’s estate and shares are then calculated

Question 9

what happens if there is no issue, parent, or issue of parent?

Answer 9

if there is no surviving descendant, parent or descendant of a parent, but the decedent is survived on both the paternal and maternal sides by one or more grandparents or descendants of grandparents, then one-half goes to the paternal side by rep. and one-half goes to the maternal by rep.

Question 10

what does “by representation” mean?

Answer 10

Under the UPC, the estate is divided into as many equal shares as there are: 1) surviving descendants in the generation and 2) deceased descendants who left surviving issue

Question 11

Under the per capita w/ right of rep. rule, who receives the deceased issue’s share?

Answer 11

Issue of deceased members will share per capita the deceased member’s share by right of representation

Question 12

Under the UPC, what is the exact share each taker at the next generational level receives?

Answer 12

the remaining shares are combined and then divided in the same manner (equally) among the surviving descendants of the deceased descendants

Question 13

what is the traditional or classical per stirpes rule?

Answer 13

the distribution allocates at the first level of issue (children) even if everyone at this level is dead, so long as one of them has living issue

Question 14

under what condition may a non-marital child inherit through their father?

Answer 14

1. if man marries the mother after the child’s birth,
2. is adjudicated to be father in paternity suit, or
3. after death and during probate, is proven to be father by clear & convincing evidence

Question 15

can children born out wedlock (non marital children) inherit from their parents?

Answer 15

Yes. All states grant nonmarital children the right to inherit from their mothers and to inherit from the dad when at least one statutorily defined method of establishing paternity has been satisfied

Question 16

what law governs intestate succession?

Answer 16

state statutes govern

Question 17

Share of Surviving Spouse - Community Property

Answer 17

100% of decedant’s 1/2 share of community property

Question 18

Share of surviving spouse - separate property

Answer 18

if no descendants or parents - 100% to surviving spouse
or
surviving descendants & all are also descendants of survivng spouse then surviving spouse takes 100%

Question 19

Share of surviving spouse - w/ surviving descendants but descendants are not descendants of surviving spouse

Answer 19

surviving spouse has other descendants - $225,000 + half of remaining estate

Question 20

Share of surviving spouse - w/ surviving descendants but descendants aren’t descendants of surviving spouse

Answer 20

150,000 + 1/2 of remaining estate

Question 21

Share of heirs other than surviving spouse

Answer 21

any part of the intestate estate not passing to a surviving spouse will pass in a specific order to individuals who survive decedent -
1. To issue (decedents descendants) in any generation by rep.
2. no issue - to parents (equally) or surviving parent
3. no issue or parents - to siblings & their issue
4. No issue, parent or issue of parent - to grandparents or issue of grandparents
5.
6. if none - escheat (to state)

Question 22

Per capita

Answer 22

All takers equally closely related to decedent

Question 23

UPC - takers not equally closely related

Answer 23

Per capita at each generation - by representation means that the estate is equally divided (or some thereof) is divided into as many equal shares as there are 1) surviving descendants in the nearest generation to the decedent which contains living heirs and 2) deceased descendants who left surviving issues