Intestate Succession Flashcards
Three ways to compute shares
1) Classic per stirpes
2) majority rule per capita with representation
3) modern trend per capita at each generational level
Define intestate succession
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
Who owns the property if the decedent is married
law of the property system at the time the property was acquired
which state’s intestacy law applies
personal property: law of decedent’s domicile at death
real property: law of the situs of the property
Spouse survives but no descendants, who inherits
surviving spouse gets the entire thing
spouse and descendants surive
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
No spouse but there are descendants, who inherits what
descendants get whole thing
no spouse and no descendants
goes to parents, then siblings, nieces, and nephews
Classic per stripes
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
Modern per stirpes/ per capita with representation
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
modern trend - per capita at each generational level
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
Shares of other heirs
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
Special Cases: adopted children
treated the same as biological children of the adopting parents
Special Cases: stepchildren and foster children
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
Special case: non marital children
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
Special Cases: half blood and whole bloods
half bloods only have one common parent
UPC makes no distinction but some jurisdictions give half bloods half shares
Special Case: Posthumous kids
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
Advancements
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
Procedure if an advancement if found
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
Simultaneous death and three interpretations
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
Disclaimers
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
disclaimer made on half of another
can be made for another if the court finds its in the best interest of those
disclaimer on life estate
accelerates the remainder
descendants death caused by heir or beneficiary
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
