Intestate Succession

Question 1

When does intestate succession apply?

Answer 1

(1) decedent dies without a will or their will is denied probate.

(2) because the decedent will does not dispose of all the decedent’s property, either because a gift has failed, or because the will contains no residuary clause,

Question 2

What is the basic principle of intestacy?

Answer 2

That the property remaining after inestate’s debts and taxes are paid, the remaining property will pass to the intestate heirs.

Question 3

What is the intention behind intestate property distribution?

Answer 3

To give property to people who society views as proper after the intestate debts and taxes are paid. The distribution scheme differs amongst states, but cannot be altered to fit the decedents regardless of evidence showing the decedent would not have want their property to pass the way intestacy provides.

Question 4

Who owns property if the decedent was married at the time of death?

Answer 4

Generally, when a spouse has died, courts will apply the law of the domicile (community property), meaning that the property belongs to the wife.

Question 5

What states intestacy laws will apply?

Answer 5

Real Property: The state where the property is located

Personal Property: The law where the decedent is domiciled at the time of death.

Question 6

How did the common law handle intestate share of a surviving spouse?

Answer 6

Under common law, a spouse was not entitled to a share because they were not considered an heir. Thus, they generally received a courtesy (life estate) in personal property. A dowment is a life estate in real property.

Note: no longer exists.

Question 7

How does modern law handle intestate share of a surviving spouse?

Answer 7

Under modern law, a spouse is considered. A spouse is entitled to a share of the estate, but the amount depends on whether decedent is survived by children, how many children, and whether the surviving spouse is the parent of the surviving children.

Question 8

What is a surviving spouse entitled to if the decedent is survived by issue (children)?

Answer 8

UPC: Surviving spouse takes the entire estate if the decedent is survived by descendants, all of whom are descendants of the surviving spouse, and the surviving spouse has no other surviving descendants.

Other State Law: If a decedent is survived by a spouse and descendants, spouse is generally entitled to 1/2 to 1/3 of the property.

Question 9

What is a surviving spouse entitled to if the decedent is not survived by descendants?

Answer 9

If there is not surviving descendants but is survived by a spouse, the surviving spouse takes the entire estate.

Under the UPC: Surviving spouse only takes entire estate if the decedent is also NOT survived by parents.

Question 10

What are the three methods for computing a descendants share?

Answer 10

1. Per Stirpes
2. Per Capita with Representation (Majority rule)
3. Per Capita at Each Generational Level (modern trend)

Question 11

How are intestate share distributed under Per Stirpes?

Answer 11

A share is created for (1) each surviving child, and (2) each predeceased child who is survived by a descendant.

Question 12

How are intestate shares distributed under Per Capita with Representation?

Answer 12

The Court looks to the first generation with surviving descendants. One share is created for each descendant in that generation. Any deceased descendants share will pass to their descendants by representation.

Note: That the distribution is made equally to the first generation of surviving descendants. So if it starts at the grandchild level, each grandchild would receive an equal share regardless of whether they would have received that amount had their parents survived prior.

Example: Decedent had two children, A and B. B predeceased the decedent but had children of his own. A and B would each get 1/2 of estate, but B’s child would take his share.

Question 13

How are intestate shares distributed under Per Capita at Each Generation Level

Answer 13

Several states and the UPC look to the first generation with surviving descendants. Each descendants receives one share. Each surviving descendant will take their share. But the predeceased descendant’s share will be divided equally amongst the next generation.

Question 14

What is the order of intestacy?

Answer 14

1. First to spouse/descendants
2. If none –> parents
3. If none –> descendants of parents (siblings or their descendants
4. If none –> grandparents or their descendants.
5. if none –> nearest kin.
6. If none –> the state!!!!

Question 15

What if the only surviving heirs are a parent and a sibling?

Answer 15

Some states + UPC: entire estate to parent

Other states: 1/2 to parent and 1/2 to sibling.

Question 16

What rights do adopted children have in intestacy?

Answer 16

An adopted child is considered equal to a biological child. Both the adopted child and adopting parents inherit and take through each other.

An adopted child and their biological parents generally have no right to take or inherit from each other unless the biological parent is married to the adopting parent.

Question 17

What rights do step-children have in intestacy?

Answer 17

Generally, a step child or foster child are not entitled to take or inherit from a step or foster parent.

Note: there can be inheritance through adoption by estoppel: when a step or foster parents gains legal custody of a child through an unfulfilled agreement to adopt them.

Question 18

Nonmarital children?

Answer 18

Always inherits from the mother.

To inherit from the father, the father must have married the mother after childbirth, have been adjudicated to be the father, or after the father’s death, have been proven to be the father of the child.

Question 19

What right to inheritance does a posthumous child have?

Answer 19

If in gestation at the time of death, generally considered an heir.

If not in gestation at the time of death (posthumous conception) but who is born within a statutorily stated period of time, some states will allow inheritance.

Question 20

What is an advancement of intestate share?

Answer 20

When a decedent makes a gift to an heir during their lifetime with the intent that the gift be applied against any share their heir inherits from the donor’s estate.

At Common Law: a substantial gift to a child during the decedents lifetime was presumed to be an advancement.

Modern Courts: reverse the assumption, but apply the principal to all heirs.

Question 21

Under what factors will a UPC jurisdiction find a lifetime gift to be an advancement?

Answer 21

When it was declared as such in a contemporaneous writing by the donor, or (2) acknowledged as such in a writing by the heir.

Question 22

How will the a court handle an advancement?

Answer 22

Where the court find an advancement was made, the value of the advancement will be added to the estate. The intestate shares will be distributed (in theory) and whatever share the advancee is entitled to will be less the amount of the advancement. However, if the recipient’s share is less than the advancement, they are not required to return the amount.

Example: A receives an advance of 100k. Decedent died with 100k in their estate. The advancement is added to the estate. If there were 3 heirs and each were to receive 1/3, the recipient would subtract 100k from their share. But here, it is greater than. They need not return it, they just wont take any.