Intestate Succession Flashcards
Intestate succession applies to:
any part of the decedent’s estate not passed by will
What is the common law doctrine of intestate “advancement”?
Under the common law, general inter vivos transfers were considered advancements toward their intestate share and considered as part of a “hotchpot estate” subject to division among all heirs.
What is the Uniform Probate Code’s approach to the doctrine of intestate “advancement”?
Under the UPC, a general inter vivos gift is presumed not have been intended an advancement unless specifically stated in writing by the donor at the time the gift is made. Specific gifts, however, are still treated as advancements, if devised to the same person who is then given the gift inter vivos.
What does a surviving spouse take through intestate succession in a community property state?
The surviving spouse takes one half of the marital property, which includes property acquired during the marriage and excludes the decedent’s individual inheritance and gifts in the decedent’s name. The surviving spouse takes one third of the decedent’s separate property and the remaining two thirds go to decedent’s children.
What does a surviving spouse take through intestate succession under the Uniform Probate Code?
(a) If decedent has no children and no parents –> spouse takes all
(b) If has parents but no children –> spouse takes $200,000 + 2/3 of remainder
(c) If decedent has children with the spouse, and spouse has other kids –> spouse takes $150,000 + 1/2 of remainder
(d) If decedent has children not with spouse –> $100,000 + 1/2 remainder
What is the Uniform Simultaneous Death Act?
If an heir dies within 120 hours after the decedent, they are presumed to have predeceased the decedent and so they don’t receive their share of the inheritance.
What are the three distribution schemes for determining how the estate is divided among the decedent’s issue?
- per stirpes
- per capita at each generation
- per capita with represenation
How is property distributed to issue “per stirpes”?
a predeceased heir’s children stand in his place and take his share evenly
The property is divided equally among the decedent’s children. If a child predeceased the decedent, then the predeceased child’s children share equally in the amount the predeceased child would have taken.
How is property distributed to issue per capita with representation?
same as per stirpes unless there is a deceased generation
If the predeceased issue have surviving siblings, then the property is divided equally among the siblings and the children of the predeceased persons stand in for their parents and take their parent’s share. But if there is a generation where all the siblings are deceased, then the next generation shares evenly.
How is property distributed to issue per capita at each generation?
Descendants of the same degree from the decedent will have equal shares. All children of predeceased issue share equally in the total of the predeceased children’s shares.
If the decedent has no surviving spouse, who gets the property?
Decedent’s issue take all.
What are the three systems of intestate succession?
- parentellic approach
- degree of relationship approach
- UPC approach
What is the Uniform Probate Code order of intestate succession?
- initial share to the surviving spouse
- to children or their descendants
- to parents
- to siblings
- to grandparents, aunts, uncles, and their descendants
- to great-grandparents and great aunts and uncles and their descendants
- if there are no relatives, property “escheats” to the state
What is the order of intestate succession in a parentellic system?
- to spouse
- to kids
- to parents and their descendants
- to grandparents and their descendants
- to state
How does the degree of relationship approach work?
It attempts to determine the closest of kin by counting degrees of relationship to the decedent up and down the family tree.
- to spouse
- to kids
- to ancestors
- to first line collateral (e.g., first cousins)
- to second line collaterals (e.g., second cousins)
- to state
