Intestate Succession

Question 1

Intestate Succession: Requirements

Answer 1

1. decedent left no valid will;
2. will does not complete disposition of the estate (“Partial intestacy”); or
3. after challenge, will is denied probate

Question 2

Community Property: Survived by Spouse and Descendants Only of Same Spouse (one marriage rule)?

Answer 2

all goes to the surviving spouse

Question 3

Community Property: Survived by Spouse and Descendants, at least one of whom is not the descendant of the spouse?

Answer 3

Spouse retains one half of decedent’s interest.

ALL descendants (including those from current spouse) take half, per capita with representation

Question 4

Community Property- Survived by Spouse and NO Descendants

Answer 4

all goes to surviving spouse

Question 5

Separate Personal Property- Survived by Spouse and Descendants

Answer 5

1/3 to surviving spouse

2/3 to children (descendants) or their descendants

Question 6

Separate REAL Property- Survived by Spouse and Descendants

Answer 6

• 1/3 life estate to spouse

- 2/3 outright ownership to descendants (or their descendants), plus the 1/3 remainder on the life estate

Question 7

Separate Real Property: Not survived by Spouse, but Survived by Descendants

Answer 7

entire estate goes to descendants (and their descendants)

Question 8

Separate REAL Property- Survived by Spouse and and NO Descendants

Answer 8

1/2 to surviving spouse

1/2 in fee simple goes to parent(s) or descendants of parents (if none, all goes to surviving spouse)

Question 9

Separate PERSONAL Property- Survived by Spouse and and NO Descendants

Answer 9

all goes to surviving spouse (even if decedent has parents, close kin, etc.)

Question 10

Separate PERSONAL Property- Not survived by Spouse or descendants, but Survived by ParentS

Answer 10

one half to each parent

Question 11

Separate PERSONAL Property- Not survived by Spouse or descendants, but Survived by Parent

Answer 11

one half to parent and one half to brothers or sisters or their descendants

Question 12

Intestate Succession: Bad Daddy Rule

Answer 12

parent cannot inherit from or through a child if there is clear and convincing evidence that parent

(i) abandoned and failed to support the child
(ii) knowingly abandoned and failed to support child’s mother during her pregnancy; or
(iii) was criminally responsible for the death or serious injury of a child

Question 13

Not survived by Spouse, descendants, or parents/descendants of parents

Answer 13

Keep going on until you find descendants.

1/2 to maternal grandparents and their descendants and 1/2 to paternal grandparents and their descendants

Question 14

Descendants take Per Capita with Representation

Answer 14

Property divided into equal shares at the first generation there are living takers

Each person at that level takes a share and a share of the deceased person at that level passes to her descendants per capita (instead of per stirpes) by representation.

Question 15

Non-marital Children (Wedlock)

Answer 15

Mother and her kin: Nonmarital child has full inheritance rights

Father and her kin: Nonmarital child has no inheritance rights unless:

(a) paternity is assumed by family code
(b) father executes sworn statement acknowledging paternity
(c) paternity is established in paternity or probate proceeding

Question 16

“paternity is assumed”

Answer 16

1. child was born during (or within 300 days after) marriage;
2. during the first two years of the child’s life, the man resided with the child and represented to others that the child was his; or
3. the parties married after birth of the child and the man voluntarily asserted his paternity

Question 17

Inheritance Rights of Adopted Children

Answer 17

Adopted child treated same way as natural child.

Two-way street: adopted child inherits through parents and parent can inherit from/through adopted child

One-way street: adopted child can inherit from/through natural parent (unless inheritance rights were expressly terminated) but natural parent cannot inherit from/through adopted child

Question 18

Intestate Succession: Inheritance Rights of Adopted Adults

Answer 18

Person adopted as adult may not inherit through natural parents or vice versa

Question 19

Intestate Succession: Inheritance from Step Parents or Foster Parents

Answer 19

Generally, children do not inherit through step-parents or foster parents unless they are adopted by adoption by estoppel (take custody of child with parent’s agreement but never carry out the full adoption).

If adoption by estoppel, it is a one-way street. Parents cannot inherit from child.

Question 20

Posthumous Born Children

Answer 20

To receive right of inheritance, child must be born before, or in gestation (300 days) at the instetate’s death and survived instetate by at least 120 hours.

Question 21

Assisted Reproduction

Answer 21

Unless consented to by donor, person considered to be in gestation at the time of intestate’s death only if the insemination or implantation occurred before the intestate’s death

Question 22

Wills and Intestate Succession: 120-hour rule

Answer 22

If person died 120 hours or before after the decedent, treat it like the person predeceased.

If it can’t be determined, default is that the person did not survive 120 hours.

• applies to wills and intestacy

Question 23

120-hour rule and Community Property

Answer 23

If spouses die within 120 hours of each other, 1/2 of all community property is distributed as if Spouse A had survived 120 hours after and 1/2 is distributed as if the Spouse B had survived 120 hours after

Question 24

120-hour rule and Other Contexts

Answer 24

Applies to joint bank accounts, survivorship estates of real/personal property, and life insurance proceeds

Question 25

Disclaimer

Answer 25

Any time before accepting property, an heir, will or trust beneficiary, or beneficiary of non-probate transfer can disclaim an interest, in whole or in part, that would pass to him

Question 26

Disclaimer Requirements

Answer 26

• in writing
• describe the interest being disclaimed
• be delivered
• Parent can’t disclaim on behalf of minor child

Question 27

Disclaimer Results

Answer 27

Treat the disclaiming party like it predeceased

Question 28

Lifetime Gifts in Advancement of Intestate Share

Answer 28

lifetime gift or non-testamentary transfer is not considered an advancement against heir’s intestate or beneficiary’s bequest share unless:

(a) declared in a contemporaneous writing, and
(b) acknowledged in the the writing by the donee

Question 29

Unauthorized Commercial Use of Decedent’s Name and Likeness

Answer 29

For decedent’s property right in the unauthorized commercial use of his name or likeness

Violating party can be held liable for damages, profits obtained, exemplary damages, and attorney’s fees.

Recovery goes (half and half rule):

(i) one-half to surviving spouse and one-half to descendants; and
(ii) all to spouse if no descendants; and
(iii) all to descendants if no spouse