Intestate Succession

Question 1

Property may pass by intestate succession when:

Answer 1

(1) A decedent dies without having made a will; (2) A decedent’s will is denied probate; or (3) A decedent’s will does not dispose of all his property, either because a gift has failed or because the will contains no residuary clause

Question 2

Surviving spouse + descendants

Answer 2

UPC: surviving spouse takes ENTIRE ESTATE

Most states: surviving spouse takes 1/3 or 1/2

Question 3

Surviving spouse (no descendants)

Answer 3

Most states: surviving spouse takes ENTIRE ESTATE

UPC: spouse takes entire estate only if the decedent is not survived by children or parents.

Question 4

Per capita with representation

Answer 4

MAJORITY RULE

Property divided into equal shares at the first generational level with living takers.

Each living person at that level takes a share, and the share of each deceased person at that level passes to his children by right of representation.

Question 5

Per Capita at Each Generational Level

Answer 5

Growing # of states and UPC

Initial division of shares at first generational level with living takers

Shares of deceased persons at that level are combined then divided equally among the takers at the next generational level.

Question 6

Succession Hierarchy if No Spouse or Descendants

Answer 6

(1) Parents
(2) Siblings (and nieces & nephews)
(3) Grandparents (and aunts, uncles, cousins)
(4) Nearest kin
(5) Escheats to the state

Question 7

Stepchildren and Foster Children

Answer 7

No inheritance rights unless adopted

Adoption by estoppel: when legal custody of a child is gained under an (unfulfilled) agreement to adopt him

Question 8

Nonmarital children

Answer 8

Always inherit from mother

Will only inherit from father if:

(1) father married mother after child’s birth
(2) man was adjudicated to be the father in a paternity suit or
(3) after his death and during probate, the man is proved by clear and convincing evidence to be the father

Question 9

Disinheritance Clause

Answer 9

Common law & most states: will provision expressly disinheriting an heir is ineffective as to any property passing by intestacy

UPC: T may exclude the right of an indiviudal to succeed to property passing by intestacy; if person survives decedent, his share passes as though he disclaimed it

Question 10

Traditional Uniform Simultaneous Death Act (USDA)

Answer 10

When order of death cannot be established, property of each decdent is disposed of as if he had survived the other

applies ONLY if no sufficient evidence of survival

If evidence that an heir or beneficiary survived by even minutes, rule doesn’t apply

(half of states)

Question 11

Revised Uniform Simultaneous Death Act (UPC)

Answer 11

120-hour rule

A person must survive the decedent by 120 hours (or 5 days) in order to take any distribution of the decedent’s property

(half of states)

Question 12

Disclaimers

Answer 12

B can disclaim an interest: passes as if the disclaiming party predeceased the decedent

Must be:

(1) In writing
(2) Irrevocable
(3) Filed within 9 months of decedent’s death of B’s 21st birthday

Question 13

Slayer Statute

Answer 13

One who feloniously and intentionally brings about the death of a decedent forfeits any interest in the decedent’s estate

Property passes as though killer predeceased decedent

Preponderance of the evidence standard

Question 14

Advancement of Intestate Share: Definition

Answer 14

Lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor’s estate

Question 15

Advancement at Common Law

Answer 15

A substantial lifetime gift to one of the decedent’s children was presumed an advancement

Question 16

UPC Advancement

Answer 16

Lifetime gift presumptively not an advancement

Advancement found only if:

(1) declared as such in a contemporaneous writing by the donor or
(2) acknowledged as such in a writing by the heir

Question 17

Procedure if Advancement Found

Answer 17

Gift’s value when given is added back to the estate for purposes of calculating shares, then subtracted from recipient’s share

Question 18

Satisfaction of Legacies

Answer 18

Testamentary gift can be satisfied in whole or in part by inter vivos transfer from T to B after execution of the will, if T intends for the transfer to have that effect.

Question 19

UPC Satisfaction of Legacies

Answer 19

Doctrine does not apply unless T provides for satisfaction in the will or contemporaneous writing, or the devisee acknowledges, in writing, the gift as one in satisfaction.

Writing NOT required if specific bequest because that is just an ademption