INTESTATE SUCCESSION Flashcards
Intestate Succession Generally
Property may pass by intestate succession when
(1) a decedent dies without having made a will;
(2) a will is denied probate; OR
(3) a will does not dispose of all of his property, either because a gift has failed OR because the will contains no residuary clause.
Intestate Share: Spouse
If there are no surviving descendants, spouse takes the entire estate.
Spouse gets 1/3 or ½ of the estate if there are surviving decendants.
UPC: Spouse gets entire estate if all decendants are decendants of surviving spouse.
Intestate Share: Children
The portion of the estate that does not pass to the surviving spouse, passes to the decedent’s children and their children/issues.
Per Capita with Representation
Modern Per Stirpes
{Majority rule}. Property is divided into equal shares at the first generational level at which there are living takers. Each living person at that level takes a share, and the share of each deceased person at that level passes to his issue by right of representation.
Per Stirpes
(Classic or Strict). One share passes to each child of the decedent, regardless of whether there are living takers at that level., as long as there are surviving decendants A deceased child’s descendants take the child’s share by representation.
Per Capita at Each Generational level
{Modern Trend}. Make the initial division of shares at the first generational level at which there are living takers, but the shares of the deceased persons at that level are combined and then divided equally among the takers at the next generational level. Persons in the same degree of kinship to the decedent always take equal shares.
No spouse or children?
If not survived by a spouse or children, the estate is distributed to other heirs in the following order:
(1) Parents,
(2) Brothers and sisters and their children,
(3) ½ to paternal grandparents and ½ to maternal grandparents and their descendants (both halves to one side if no takers on other side)
(4) ½ to nearest kin on maternal side and ½ to nearest kin on paternal side,
(5) if none survive, the estate escheats to the state.
Adopted children
Treated the same as the natural children of adopting parents. There is no inheritance in either direction between adopted children and their natural parents, except where one of the natural parents marries an adopting parent or adopted by close relative.
Posthumous children
Generally, one cannot claim as an heir unless he was alive at that person’s death. Exception is made for posthumous children of the decedent so long as the child was in gestation at the time of the decedent’s death.
Nonmarital children
A nonmarital child always inherits from the mother. The child will inherit from the father if:
(i) the father married the mother after the child’s birth,
(ii) man was adjudicated to be the father in a paternity suit; or
(iii) after his death and during probate, man is proved by clear and convincing evidence to be the father.
Disinheritance clause
At common law, a will provision expressly disinheriting an heir is ineffective as to any property passing by intestacy. The will must dispose of everything to effectively disinherit an heir.
