Intestate Succession

Question 1

When Intestacy Questions arise

Answer 1

1. Decedent dies without having made a will or will is denied probabe
2. Will does not dispose of all decedent’s property (gift failed or will contains no residuary clause).

Question 2

Intestate Order

Answer 2

1. Taxes and debts
2. Family members
3. Eschews to the State

Question 3

Marital Rights

Answer 3

Controlled by law of domicile at time property was acquired for who owns property

Succession rights - personal property -decedents domicile at death
real property - situs.

Question 4

Share of Surviving Spouse

Answer 4

Community property - surviving spouse/domestic partner inherits deceaseed spouse’s on-half of community property and retains their own.

Quasi Community Property - property that would have been community property that if the spouse/DP acquired it in California- same as Community Property.

Separate Property -
1/3 goes to spouse/DP if Decedent survived by more than 1 child or child and descendants of one or more deceased children or descendants of two or more deceased children

1/2 - if only one child, or descendants of one child, or parent or desendant of parent.

Surviving spouse will inherit all only if there are no surviving descendants, parent, sibling or descendant of a deceased sibling.

Question 5

Intestate: Descendants

Answer 5

Per capita with right of representation:
divide property into equal shares at first gen with at least 1 surviving member and one fore each member of that generation who has at least one surviving descendant

I had two children S and D. S predeceased but is survived by two children A and B. D gets 50% and A and B each get 25%

I had two children S (who had A and B) and D (who had C)
S and D predeceased I A B and C each get 1/3

Question 6

Intestate: Ancestors and Collaterals Order

Answer 6

If no descendants and not all to spouse/DP:
1. Parents (each 1/2 or all if only 1)
2. Decendants of Parents - on per capita with representation basis
3. Grandparents and their descendants - per capita with rep basis
4. Decendants of Predeceased Spouse
5. Next of Kin
6. Parents of Predeceased Spouse or their descendants
7. Escheat to State

Question 7

Special Rules for Property Inherited from Predeceased Spouse

Answer 7

The following property passes to the deceased spouse’s heirs rather than the surviving spouses heirs: Real Property unless deceased spouse died at least 15 years prior
Personal Property worth over $10,000 unless the deceased spouse died at least 5 years prior

Question 8

Intestate: Adoption

Answer 8

Child inherits from and through adoptive parents and relatives and vice versa parents
Bio parents - generally not unless adoption is by stepparent
Stepchildren and Foster Children - generally no rights without adoption but they will be treated as adopted chlildren when: relationship began when child was minor and continued through parties’ joint lives AND clear and convincing evidence shows stepparent or foster parent precluded from adopting bc legal barrier.
Adoption by estoppel - conduct of parent (holding child out as own) makes it appear that child is theres then treated as legally adopted (usually mistakes or error)

Question 9

Intestacy: Non marital or Domestic Partner Children

Answer 9

1. Natural mother - proof of birth (excl. contract for surrogacy).
2. Relationship to other parent :
   - married/attempt to marry and born during marriage or within 300 days after marriage ended.
   - attempt to marry after birth and named on birth certificate or promise/court ordered child support.
   - held child out as natural child
   - court judgment of parentage

Question 10

Intestate: Posthumos Relatives

Answer 10

If conceived before intestates death then inherits.
If conceived after death inherits if: intestate authorized, in signed an dated writing use of genetic material for post humous conception and designated person to control use of genetic material

Person designated to use gave written notice within 4 months of death cert.
AND
Child conceived and in utero within 2 years of issuance of death cert.

Question 11

Intestate: Unworthy Heirs

Answer 11

Presumed to predecease.
- feloniously and intentionally kills intestate
- Bad Parent (no ack. of child, rights terminated and not reestablished, abandonment for at least 7 consecutive years before age of majority without support or communication)
- Abuse or neglect of elder
- Non citizens of the US.

Question 12

Intestate: Advancements

Answer 12

Lifetime irrevocable gift intended by the donor to be prepayment for inheritence.

Requires: writing signed by donor or donoee needed to prove.

Heir’s share reduced by advancement but if Receipient predeceases Decedent it does not affect recipient’s issue unless declaration or ack. provides otherwise.

Question 13

Intestate: Survival

Answer 13

120 hours or bene deemed to predecease (unless results in escheat to state).
Clear and convincing evidence for the following
- if spouses or DP or joint tenants and cannot be determined than 50/50

Question 14

Intestate: Disclaiming

Answer 14

1. In writing
2. signed
3. identify decedent
4. describe interest being disclaimed
5. state disclaimer and extent
6. filed within reasonable time (within 9 months after the later of death of decedent or date interest becomes indefeasibly vested).

may be made on behalf of Infant, Incompetent, or decedent

Effect: as if predeceased.

IRREVOCABLE