Intestate Succession Flashcards
When may property pass by intestate succession?
Property may pass by intestate succession when (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 of his property, either because a gift failed or a will had no residuary clause.
What is the intestate share of the surviving spouse if there are other descendants?
In most states: The spouse takes 1/3-1/2 of the estate (or a specific dollar amount plus a 1/3 or 1/2 share).
In UPC states: The surviving spouse takes the entire estate if the descendants are all also of the surviving spouse.
What is the intestate share of the surviving spouse if there are no other descendants?
In most states: the surviving spouse takes the entire estate.
In UPC states: the spouse only takes the entire estate only if the decedent isn’t also survived by their parents.
What is the intestate share of children and other descendants?
The portion of the state that does not pass to the surviving spouse (or the entire estate if no surviving spouse) goes to the decedent’s children and the descendants of deceased children.
What three approaches exist to determining descendants’ shares of the intestate estate?
(1) Per capita with representation (majority rule)
(2) Classic per stirpes (common law/minority rule)
(3) Per capita at each generational level (UPC/modern trend)
What is per capita representation?
In most states, descendants take their share this way. Property is divided equally at the first generational level at which there are living takers. The share of each deceased person at that level passes to their issue by right of representation.
What is classic per stirpes distribution?
One share passes to each child of the decedent, regardless of whether any are living. A deceased child’s descendants take that share by representation.
What is per capita at each generational level distribution?
The initial division of shares occurs at the first generational level at which there are living takers and the shares of the deceased children at that level are combined and divided equally among the takers at the next generational level. This means shares are equally divided at each level.
What is the outline of intestate succession in a typical statute?
The estate passes first to the spouse and/or descendants. If none, to the parents. If none, to the parents’ descendants (siblings and their issue). If none, to grandparents or descendants. If none, to nearest maternal and/or paternal kin. If none, to the state.
How are adopted children treated for the purposes of intestate succession?
Adopted children inherit the same as natural children from their adoptive parents. There is no inheritance in either direction between adopted children and their natural parents except where one natural parent has married an adopting parent or the child was adopted by a close relative.
Do step and foster children have inheritance rights?
No, unless the step or foster parents adopted them unless, under the doctrine of adoption by estoppel, the step or foster child can show that legal custody was gained under an unfulfilled agreement to adopt.
Can posthumous children inherit from the decedent?
Generally, you must be alive at the time of the decedent’s death to inherit but there is an exception for children in gestation at the time of death.
Can nonmarital children inherit?
Nonmarital children can always inherit from the mother. They will inherit from the father if: (1) the father married the mother after the birth; (2) the man was adjudicated to be the father in a paternity suit; or (3) during probate proceedings, the man is proved by clear and convincing evidence to be the father.
What is the effect of a disinheritance provision on intestate succession?
Common law/majority: A will’s disinheritance provision is ineffective as to any property disposed of through intestacy.
UPC/minority: A testator can exclude someone’s right to succeed to intestate property. It will pass as though the person disclaimed it.
