Intestate Succession

Question 1

Three ways to compute shares

Answer 1

1) Classic per stirpes
2) majority rule per capita with representation
3) modern trend per capita at each generational level

Question 2

Define intestate succession

Answer 2

property passes intestate when
1. the descendent died without having made a will or it was denied in probate
2. Decedents will doesn’t dispose of all of the property

Question 3

Who owns the property if the decedent is married

Answer 3

law of the property system at the time the property was acquired

Question 4

which state’s intestacy law applies

Answer 4

personal property: law of decedent’s domicile at death
real property: law of the situs of the property

Question 5

Spouse survives but no descendants, who inherits

Answer 5

surviving spouse gets the entire thing

Question 6

spouse and descendants surive

Answer 6

spouse gets either a 1/2 or a 1/3 of the estate and the descendants get the rest

UPC: spouse gets the whole thing if the kids are step kids

Question 7

No spouse but there are descendants, who inherits what

Answer 7

descendants get whole thing

Question 8

no spouse and no descendants

Answer 8

goes to parents, then siblings, nieces, and nephews

Question 9

Classic per stripes

Answer 9

one share is created for each child and one share for each deceased child who has at least one surviving descendant

divides into shares at the child generation

Question 10

Modern per stirpes/ per capita with representation

Answer 10

property is divided into equal shares at first generational level at which there are living takers

Here, if all the kids are dead then grandkids take an equal share

Question 11

modern trend - per capita at each generational level

Answer 11

make initial division of shares at the first generational level at which there are living takers but the shares of any deceased person are combined and divided equally among the next generation.

Therefore each kid takes an equal share, the rest is pooled and then divided equally among grandkids

Question 12

Shares of other heirs

Answer 12

goes in the following order
1. parents
2. siblings and descendants
NOTE: if one parent and at least one sibling alive UPC and some states split it amongst them
3. one half to paternal 4. grandparents one half to maternal grandparents
5. one half to nearest maternal kin and one half to nearest paternal kin
6. state

Question 13

Special Cases: adopted children

Answer 13

treated the same as biological children of the adopting parents

Question 14

Special Cases: stepchildren and foster children

Answer 14

typically no rights but adoption estoppel permits a child to inherit from or through a stepparent or foster parent when legal custody is gained under an unfulfilled agreement to adopt them

Question 15

Special case: non marital children

Answer 15

Mother: always inherits from mom
Father: will inherit if
1) father married mom after birth
2) man was adjudicated to be father in paternity suit
3) after his death and during probate the man is proved by clear and convincing evidence to be the father

Question 16

Special Cases: half blood and whole bloods

Answer 16

half bloods only have one common parent
UPC makes no distinction but some jurisdictions give half bloods half shares

Question 17

Special Case: Posthumous kids

Answer 17

a kid born after the death of the parent

rule: if in gestation at the time of intestates death most states allow that person to be an heir

some states allow someone not in gestation to be an heir if born in statutory period of time

Question 18

Advancements

Answer 18

advancement is a lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the estate

General rule: lifetime gift isn’t an advancement unless show to be intended as one

UPC: advancement found only if
1) declared as such in contemporaneous writing by donor or
2) acknowledged as such in a writing by the heir

Question 19

Procedure if an advancement if found

Answer 19

gift’s value when given is added back into the estate to calculate shares

UPC: advancement not binding on advance’s successors unless the requiring writing state it is

Question 20

Simultaneous death and three interpretations

Answer 20

person can’t take as an heir or will unless they survive the decedent

USDA: when disposition of property depends on the order of death and the order can’t be established the property of each is disposed of as if they had survived the other

120 hour rule: many states and UPC require a person survive 120 hours to take any distribution of the property

Question 21

Disclaimers

Answer 21

an heir is not forced to accept property and disclaim an interest

Requirements:
1. signed and knowledge before a notary
2. filed with appropriate court within 9 months of death

Note: for join tenants they may disclaim their interest within 9 months of joint tenant’s death and holder of future interest may disclaim only with 9 months after interest was created

Question 22

disclaimer made on half of another

Answer 22

can be made for another if the court finds its in the best interest of those

Question 23

disclaimer on life estate

Answer 23

accelerates the remainder

Question 24

descendants death caused by heir or beneficiary

Answer 24

person who feloniously and intentionally brings about death of a decedent forfeits any interest in the estate

acts as if that person predeceased

find killing unlawful or intentional by a preponderance of the evidence