Intestate Succession Flashcards
When may prop pass by intestate succession?
When:
- D dies w/o having made a will or their will is denied probate (total intestacy)
- D’s will does not dispose of all of D’s property (partial)
Who owns the property if D was married at the time of death?
Use the law of the domicile at the time the property was acquired
Which state’s intestacy law applies?
Personal Prop: the law of D’s domicile at death
Real Prop: law of the situs of the prop
Intestate Share of Surviving Spouse: Common Law
SS was not seen as heir; Widow received dower (life estate in 1/3 of real prop of D); WidowER received curtesy (life estate in all of wife’s real prop IF a child was born to the marriage)
Intestate Share of Surviving Spouse: Modern Law - Descendants also survive
Most states: spouse takes 1/3 or 1/2 of estate
Some states: specific dollar amount plus 1/3 or 1/2 of estate
UPC: SS takes the ENTIRE estate if descendants are all SS and SS has no other surviving descendant
Intestate Share of Surviving Spouse: Modern Law - No Descendants
Most States: SS takes entire estate
UPC: SS takes whole estate ONLY IF D is not survived by descendants OR parents
Intestate Share of Children and Other Descendants
if no SS, D’s estate passes to their kids and descendants of dead kids
Intestate Shares if all children survive?
Equal shares for all of D’s kids, D’s grandkids cannot take if their parent is still alive
Classic Per Strpes
Common law; 1 share is created for each child and 1 share for each deceased child who has at least 1 surviving descendant.
Each child receives one share and one share passes to a deceased child’s descendants by representation
shares divided at the child generation, even if no child survives the D.
Per Capita w/ Representation
MAJORITY RULE
D’s property is divided into equal shares at the 1st generational level at which there are living takers. Each living person at that level takes a share and the share of each predeceased person passes to their descendants by right of representation
I.E. if all children are dead then all property will go to grandchildren and the division starts there. Each grandchild will get an equal chare rather then the share their parent would have taken
Per Capita at Each Generational Level
Modern Trend/UPC
initial division of shares is done at the 1st generational level at which there are living takers, but the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level
I.E. if some of D’s children are alive and others dead, each child will take an equal share, but the remaining property is pooled and each grandchild will receive an equal share
Intestate Succession Under Typical Statute
Shares of other heirs
If D is not survived by spouse of descendants, estate is distributed to:
* Ancestors: Persons related in ascending lineal line like parents; and
* Collaterals: Persons related but not in a lineal line like siblings, uncles, aunts
Estates passes down in the following order: parents, siblings and their descendants, 1/2 to paternal grandparents and 1/2 to maternal grandparents, half to nearest kin on mom’s side, other to nearest kin on dad’s side
If there’s no one, estate escheats to the state.
Intestate: Adopted Children
adopted children are treated the same as biological; adopted child inherit from and through the adopting parents and their kin and adopting parents take from and through their child.
Intestate: Step and Foster Children
Generally have no inheritance rights UNLESS adopted by the step or foster parent
Adoption by Estoppel
permits a child to inherit from or through a step or foster parent when legal custody of a child is gained under an unfulfilled agreement to adopt them. HOWEVER, if the child dies, many states prohibit the step or foster parent from inheriting.
Intestate: Nonmarital Children
Always inherits from the mom; generally will inherit from dad if: 1) dad married mom after kid’s birth; 2) man was adjudicated to be the father in a paternity suit; or 3) after death and during probate, man is proved by clear and convincing evidence to be dad
Intestate: half siblings
UPC/Most States make no distinction b/w half and full siblings so they inherit equally
Min. Jurs. give half siblings only a half share or cuts them out from inheriting entirely if full blooded siblings exist.
Intestate: Posthumous Children
Child born after the death of their parent
If baby is in gestation at the time of D’s death, most states allow that baby to be an heir.
Some state will allow a child of D who was not in gestation, but who was born w/in a statutorily stated period of time to inherit under specified circumstances.
Disinheritance Clause
Common Law/Most States: a will provision expressly disinheriting an heir is ineffective as to any property passing by intestacy - will must dispose of everything to effectively disinherit
UPC/Statute: testator may exclude the right of an individual to succeed to property passing by intestate succession.
