Intestate Succession Flashcards
Intestate Succession - In general
Property may pass by intestate succession when:
A decedent dies without having made a will or their will is denied probate (“total intestacy”)
A decedent’s will does not dispose of all of the decedent’s property, either because a gift has failed or because the will contains no residuary clause (“partial intestacy”)
Martial Rights
Who owns the property if the decedent was married at the time of death?
We use the law of the domicile (the common law marital property system or the community property marital property system) at the time the property was acquired. The marital rights do not change as the couple moves from one state to another.
Succession Rights
Which state’s intestacy law applies? for personal property, we use the law for the decedent’s domicile at death.
For real property, we use the law of the situs of the property.
Intestate Share of Surviving Spouse
Under Modern Law, the spouse is an heir. The share of the surviving spouse depends on factors such as the number of children and whether the surviving spouse is the other parent of the deceased spouse’s children.
Descendants (surviving decedent)
Persons related to decedent in descending order (lineal line) such as children/grandchildren.
Under the UPC, the 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 descendant.
In most states, if the D leaves descendants as well as a surviving spouse, the spouse takes 1/3 or 1/2 of the estate. Some states give a specific dollar amount + 1/2 or 1/3 of the estate.
No Descendants Survive Decedent
If the decedent is survived by a spouse but no descendants, the surviving spouse takes the entire estate.
In UPC states, the spouse takes the entire estate only if the decedent is not survived by descendants OR PARENTS.
Equal Shares if All Children Survive
if all of the decedent’s children survive the decedent (or all of the decedent’s predeceased children have no descendants who survive the decedent), each child receives an equal share. A descendant from a younger generation (such as a grandchild) cannot take if the older generation (that is the grandchild’s parent) is still alive.
Methods of Computing Shares
Per Capita with Representation (Majority Rule)
Classic Per Stirpes (CL Approach)
Per Capita at Each Generational Level (Modern Trend/UPC)
Per Capita with Representation - Majority Rule
Divide at first generation with survivors.
Each living person at that level takes a share.
Share of deceased person at that level passes to issue (descendant).
Classic Per Stirpes (CL Approach)
Divide estate into shares at first generation below Decedent
Create one share for each surviving child and one share for each predeceased child who left living descendants.
Give each surviving child one share.
Give share created for predeceased child to child’s descendants.
Per Capita at Each Generation (Modern Trend/UPC)
Divide estate into shares at first generation with survivors.
Pool shares of lower generation, so each person receives equal amount.
Shares of Other Heirs
If the D is not survived by a spouse or descendants, the estate is distributed to ancestors (persons related in an ascending lineal line such as parents) and collaterals (persons related but not in a lineal line such as siblings, uncles, aunts, etc.).
The estate passes in the following order: parents or surviving parent; brothers and sisters and their descendants; 1/2 to paternal grandparents, 1/2 to maternal grandparents; 1/2 to nearest kin on maternal side and 1/2 to nearest kin on paternal side (all to one side if there are no kin on the other side)
NOTE: if one parent and at least one sibling survive, the UPC and some states give the entire estate to the surviving parent. Other states give 1/2.
Adopted Children
Adoptive child inherits form adopted parents.
Not likely to inherit from biological parents unless it is a step-child situation.
Biological parent does not inherit from adopted child.
Generally, stepchildren do not inherit.
In most states, age at adoption does not matter (may adopt an adult).
Adoption by Estoppel
May inherit even if not actually adopted because relationship acted as such.
Nonmarital Children
There is no difference for the mother because mom was there at time of birth.
To inherit from the dad, other requirements may need to be met (such as a paternity determination).
