Intestate Succession Flashcards
Community property
Surviving spouse gets half
quasi community property
surviving spouse gets half
Separate property and the spouse
If decedent leaves no issue, parents, siblings, or issue of deceased sibling, spouse gets ALL
If decedent is survived by 1 child or issue of predeceased child, spouse gets 1/2 of quasi
If decedent survived by 2 OR MORE, spouse gets 1/3
If decedent is survived by no issue but has parents, they get half
Intestate Scheme:
Issue, Parents, Parents Issue, Grandparents, Grandparents Issue, etc.
Per Capita distribution/Representation
Each Issue takes their per capita
More remote degree each take per capita with representation
Make first distribution with any SURVIVORS first
Per Stirpes
Make first distribution at FIRST POSSIBLE LEVEL OF ISSUE. Must be express in the will to have a per stirpes distribution
Step-Children/Foster kids
Considered child if: 1) relationship started during child’s minority 2)continued throughout both lives 3) established by CLEAR AND CONVINCING evidence parent would’ve adopted but for legal barrier
Equitable adoption/adoption by estoppel
Parties hold themselves out as parent/child
Non-Marital children
If born during the partnership, or if partnership formed AFTER birth AND other partner is on birth certificate OR non-birthing partner makes voluntary promise to pay child support(or court order)
Half blood
same as full blood
Rule of lapse
If beneficiary dies first, gift lapses and goes to residue or if none intestacy succession
Anti-Lapse statute
If beneficiary leaves issue and that beneficiary is KINDRED (BLOOD RELATED) then lapse does not apply and goes to issue. Applies to wills AND revocable trusts, AND class gifts (like TO ALL MY KIDS)
Simultaneous death - testator and devisee
You assume Devisee died first, so gift either lapses or anti-lapse statute applies
Simultaneous death - joint tenants
sever joint tenancy half goes to A’s estate, half to B’s
Simultaneous death - spouse/domestic partners
half community prop and quasi distributed to one estate, the other half to the other estate
Simultaneous death - insurance policy and beneficiary dies too
If no alternative beneficiary, proceeds paid to insured’s estate and beneficiary is deemed to have died first UNLESS premiums were paid by the beneficiary b/c they were spouses/domestic partners then half goes to testator, half to beneficiary
Intestate heir and ____ rule
120 hours, for any heir to take, must survive testator by 120 hours if not heirs are determined intestate.
cash gifts taking increased cash
You only get increased of your cash gift if it is interest for cash not received within 1 year.
Abatement; its order
process by which gifts are decreased, happens when you have to pay for unaccounted for children. 1) start with property that does not pass through the will (residue) then to ALL beneficiaries abate equally. SPECIAL GIFT CAN BE EXEMPTED IF IT WAS INTENT OF TESTATOR TO GIVE THAT GIFT TO X.
Order to pay off general debts of decedent:
[i] intestate property; [ii] residuary gifts; [iii] general gifts to non-relatives; [iv] general gifts to relatives; [v] specific gifts to non-relatives; [vi] specific gifts to relatives.
Exoneration
debt gets extinguished: Common law rule is if they pass on encumbered land (with mortgage) estate pays off the mortgage then it is gifted, CALIFORNIA = you take with encumbrance unless Will says it should be exonerated
Gift causa mortis
Gift provided believing in imminent death, only personal property.
Delivery = actual, symbolic (writing evidencing ownership), constructive (key that unlocks a room), modern = donor has tried everything to effectuate delivery
IF DONOR SURVIVES, GIFT IS REVOKED
