Intestate Succession

Question 1

Intestacy Generally

Answer 1

1. A person who dies without a will is said to die intestate.
2. A person who dies intestate is left with the law of intestacy as his estate plan by default.
3. General Order of Preference – (1) spouses, (2) descendants, (3) ancestors (parents and grandparents), and (4) collaterals.

Question 2

Purpose of Intestacy Statutes

Answer 2

1. To carry out the probable intent of the typical intestate decedent.

Question 3

Heirs

Answer 3

No living person has heirs. Decedent’s heirs can be identified only by reference to the applicable intestacy statute at the moment of Decedent’s death.

Question 4

Heirs Apparent

Answer 4

1. Heirs Apparent – people who would inherit the decedent’s property if he were to die right now.
2. Hers Apparent Have A Mere Expectancy.
   
   1. Not a legal interest
   2. Cannot be transferred at law however court may enforce transfer in equity.

Question 5

Persons Named in A Will

Answer 5

A person named in a will is a devisee, legatee, or beneficiary, not an heir.

Question 6

Define Intestate Estate

Answer 6

Any part of D’s estate not disposed of by will passes intestate to D’s heirs at law.

Question 7

Intestate Share of Spouse - UPC

Answer 7

Question 8

Intestate Share of Heirs Other Than Spouse - UPC

Answer 8

Question 9

If There is No Taker Under Intestacy - UPC

Answer 9

if there is no taker under the provisions of this article, the intestate estate passes to the state.

Question 10

Spouse’s Share in Intestacy -

1. General Rule
2. UPC Variation
3. Parents

Answer 10

1. General Rule - surviving spouse receives at least one half share (varies by state) of the decedent’s estate.
2. UPC Variation –
   
   1. Gives surviving spouse the entire estate if there are no step-children.
      
      1. Even though kids are excluded, they will eventually take after other spouse dies..
      2. Avoids creating guardians or conservatorships for property allocated to minors.
   2. Gives surviving spouses less if there are stepchildren.
      
      1. Divided loyalties in favor of D’s own kids.
3. Parents - About Half of States (and UPC) say surviving spouse shares estate with D’s parents, if there are no descendants.
   
   1. If no surviving parents, surviving spouse takes to exclusion of everyone else (but minority of states say spouse shares with decedent’s siblings)

Question 11

Parent’s Share in Intestacy -

1. Two Main Rules
2. No Surviving Parents?

Answer 11

1. Two Main Rules - if there are no descendants and there is a surviving spouse:
   
   1. Half of States and UPC - surviving spouse shares estate with D’s parents.
   2. Other Half - surviving spouse gets all.
2. No Suriviving Parents - If no surviving parents, surviving spouse takes to exclusion of everyone else.
   
   1. minority of states say spouse shares with decedent’s siblings)

Question 12

Effect of Invalid or Informal Marriage on Intestacy

Answer 12

invalid or informal marriages may still receive the benefit of inheritance in equity.

Question 13

Unmarried Cohabiting Partners and Intestacy

Answer 13

No Generally given any special treatment. Must be in a will or otherwise provided for.

Question 14

General Rule on Simultaneous Death and Intestacy

Answer 14

1. An heir, devisee, or life insurance beneficiary who fails to survive the decedent by 120 hours (5 days) by clear and convincing evidence is deemed to have predeceased the decedent.
   
   1. Texas and UPC follow

Question 15

Representation

Answer 15

If decedent’s child dies before decedent, any of the child’s living descendants represent the dead child and divide the child’s share among themselves.

Question 16

Three Forms of Distribution by Representation

Answer 16

1. English per stirpes (1/3 of states follow)
2. Modern per stirpes (1/2 of states and Texas follow)
3. Per Capita at Each Generation (UPC and 12 states)

Question 17

English Per Stirpes

Answer 17

Children of each deceased descendant represent their deceased parent and are moved into their parent’s position beginning at the first generation below the designated person.

The children of each deceased descendant then take equally amongst other children of the same deceased descendant.

Question 18

Modern Per Stirpes (Per Capita with Representation)

Answer 18

1. looks first to see whether any children survived the decedent.
   
   1. If yes – follow English per stirpes
   2. If no – the estate is divided equally at the first generation in which there are living takers, which is usually the generation of the decedent’s grandchildren. Any deceased descendant in that level is represented by her descendants using English per stirpes distribution.

Question 19

Per Capita at Each Generation (UPC)

Answer 19

1. Find first generation of living takers and divide equally between descendants.
2. All living descendants on that level get their share.
3. Then, the shares of deceased persons on that level are treated as one pot and are dropped down and divided equally among all representatives of the deceased persons in the next generation.
   
   1. Note – descendants don’t get a share in the pot if their parents are still alive to inherit.

Question 20

Dead Branches

Answer 20

In all forms of representation, you don’t count any dead branches (children of D that died without descendants)

Question 21

Effect of an Ancestor’s Debt to the Decedent on intestate succession

Answer 21

A descendant’s (e.g., grandchild’s) share is not subject to the debts their ancestor’s (e.g. parents) may owe the decedent.

Question 22

Intstate Succession for Parents - General Rule

Answer 22

1. If Descendants - If D is survived by a descendant, ancestors don’t take.
2. If No Descendants –
   
   1. In about half of the states, if there is no descendant, after deducting the spouses’ share, the rest is distributed to D’s parents.
   2. In remaining states, spouse takes to exclusion of D’s parents.

Question 23

Intestate Succession for Collaterals -

1. General Rule
2. Different Methods

Answer 23

1. Collateral Rules - If D is not survived by a spouse, descendant, or parent, in all jurisdictions intestate property passes to D’s siblings and their descendants.
   
   1. Parentelic System (Majority Rule) - if no first-line collaterals, estate passes to grandparents and their descendants (and so on).
   2. Degree-of-Relationship System (Minority Rule) – if no first-line collaterals, estate passes to the closest of kin by degrees of kingship.

Question 24

Rule on Laughing Hiers

Answer 24

1. Laughing Heirs – relatives that are so distant that it is unlikely the decedent ever knew them.
   
   1. Most states and UPC – inheritance by relatives traced through great grandparents and other more remote ancestors is barred.
   2. Texas – laughing heirs allowed

Question 25

Intestate Succession for Step-Children and In-Laws

Answer 25

1. 12 States recognize stepchildren as potential heirs.
2. UPC – stepchildren take if there are no surviving grandparents or descendants of grandparents or more closely related kin.
3. Minority of states extend intestate succession to both step-children and in-laws (mothers, fathers, brothers, and sisters)
4. Texas – stepchildren get nothing intestate (have to be written in the will)

Question 26

Intestate Succession for Half-Blood Siblings

Answer 26

1. Half-Bloods – only applies to intestate succession for siblings of decedent.
   
   1. Majority and UPC - half-blood relatives same as whole-blood relatives.
   2. Minority and Texas – half-blood relatives get a half-share unless all of the collateral kindred are of half blood to the decedent.

Question 27

Escheat

Answer 27

when decedent leaves no survivors and now will, the probate property escheats to the state.

Question 28

Disinheritance by Negative Will

Answer 28

Old Rule – can’t disinherit by express provision in a will except by giving the entire probate estate to others.

UPC and Texas – can disinherit by express provision in a will.

Question 29

Intestate Succession for Adopted Children

Answer 29

1. From and through adoptive parents? Yes.
   
   1. All states agree (Majority Rule)
2. From and through biological parents? Depends.
   
   1. Rules vary greatly from state to state
   2. Under UPC and in some states, an adopted child inherits from adoptive parents, but not bio parents unless
      
      1. the child is adopted by the spouse of a bio parent (aka stepparent);
      2. The child is adopted by a genetic relative of the bio parents; or
      3. The child is adopted because both bio parents died.
3. Texas – adoptive child can inherit from and thorugh bio parents and adoptive parents.

Question 30

Can Parents and Relatives Inherit from Adopted Children?

Answer 30

1. Adoptive Parents & Relatives? Yes
2. Bio Parents & Relatives?
   
   1. Texas says no.
   2. UPC says no, except for:
      
      1. stepparent adoption (can inherit from both bio parents)
      2. adoption by genetic relative (can inherit from both bio parents;
      3. adoption after bio parents death (can inherit throughboth bio parents)

Question 31

Intestate Succession and Adult Adoption

Answer 31

1. Majority Rule – no distinction between adult and minor adoption.
2. Texas –
   
   1. adopted adults can inherit from adoptive parents and vice versa
   2. adopted adults cannot inherit from bio parents (and bio parents cannot inherit from adopted adult)

Question 32

Effect of Adoption on Bequeathment by 3d Party in Wills and Trusts

Answer 32

1. For Minors – majority of states hold that a minor adopted by A is presumptively included in a gift by T to A’s children, issue, descendants, or heirs.
2. For Adults –
   
   1. UPC 2-705(f) – presumptively excludes a person adopted after reaching the age of 18 from a gift to the adoptive parent’s children, issue, descendants, or heirs by someone other than the adoptive parents unless the adoptive parent was the adoptee’s stepparent or foster parent, or the adoptive parent functioned as a parent of the adoptee before the adoptee turned 18.

Question 33

Equitable Adoption

Answer 33

1. Majority Rule – an oral agreement to adopt between biological and purported adoptive parents can be enforced in equity.
   
   1. Capacity to Consent – a custodian does not have the right to consent to the adoption of a child, only a child’s parent or guardian can.
2. Texas Rule – equitable adoption exists if (1) person acts and holds out as parent; and (2) child acts and holds out as child of adoptive parent.
   
   1. Note – Texas doesn’t require consent of bio parent or guardian.

Question 34

Inheritance from Nonmarital Children -

1. At Common Law
2. Modern Trend
3. Texas

Answer 34

1. At Common Law – filius nullius (child of no one)
2. Modern Trend –
   
   1. Mother - all states today permit inheritance by nonmarital child from the child’s mother.
   2. Father –
      
      1. The rules respecting inheritance from the father still vary by state:
         
         1. Subsequent marriage of the parents
         2. Acknowledgment by the father
         3. Adjudication during the father’s life
         4. Clear and convincing evidence after death
      2. Texas allows inheritance from father based on:
         
         1. Being from marriage
         2. Adoption
         3. Acknowledgment
         4. Adjudication (including by probate court by clear and convincing evidence)
         5. Father per gestational agreement

Question 35

Posthumous Children and Intestate Succession -

1. Definition
2. Common Law Rule
3. Rebuttable Presumption
4. Texas Rule

Answer 35

1. Posthumous Children - children born after father’s death.
2. At Common Law - if it is to the advantage of the child’s inheritance rights, the law treates the child’s birth at conception.
   
   1. Rebuttable Presumption – courts generally presume that a normal gestation period is 280 days (10 months).
      
      1. A child born after that time will have to prove they are, in fact, the deceased’s child.
3. Texas Rule -
   
   1. Must be born or in gestation at time of intestate’s death and survive 120 hours after.
   2. A person is:
      
      1. considered in gestation if insemination or implantation before intestate’s death; and
      2. presumed in gestation if born within 301 days of intestate’s death.
   3. Above exception only applies to children and lineal descendants of intestate.
      
      1. Lineal heirs – children and grandchildren
      2. Non-lineal heirs – nieces and nephews.

Question 36

Posthumous Children and Intestate Succession - Texas Practice Question

Husband (H) died intestate with both separate and community property in each type of real and personal property. H was survived by Wife (W), who was pregnant with Sam. Sam was born alive and survived H by three months. A DNA test confirms that H is Sam’s father. How should H’s estate be distributed?

Answer 36

1. (1) Sam receives 2/3 of his dad’s separate personal property, 2/3 of his dad’s separate real property, and the remainder interest in the 1/3 of dad’s separate real property in which mom has a life estate. W receives 1/3 of dad’s separate personal property and a life estate in 1/3 of dad’s separate real property.
   (2) W receives all of H’s community property in each type of real and personal property.

Question 37

Posthumously Conceived Children - Definition, UPC and Texas Rules

Answer 37

Posthumously Conceived Children – children conceived after father’s death.

1. UPC §2-120 – posthumously conceived child inherits from the deceased parent if:
   
   1. During life the parent consented to post humous conception in writing or otherwise consented by clear and convincing evidence; and
   2. The child is in utero not later than 36 months or is born not later than 45 months after the parent’s death.
2. Texas Rule – It is uncertain whether a lineal descendant born many years after a parent’s death due to the use of an alternate reproduction technique (e.g., frozen sperm, eggs, or embryos) would be entitled to inherit. When the post-humous statute was originally written, it anticipated that the lineal descendant would be conceived (in utero) before the intestate died.

Question 38

Posthumously Conceived Children and Wills or Trusts by Someon Other Than Parent - UPC Rule

Answer 38

1. UPC §§ 2-705(b) and 2-120(f) – predeceased parent must have consented to posthumous conception in writing or consent proved by other clear and convincing evidence.
2. Will or Trust By Someone Other Than Parent - Whether a posthumous child is included in a class gift in a will or trust by someone other than the deceased parent is triggered by the parent’s death.
   
   1. UPC § 2-705(g)(2) - Triggered By Death - child must be living on date of parent’s death or in utero within 36 months after or born not later than 45 months after.
   2. UPC § 2-705(g)(1) – Not Triggered By Death – normal class closing rules apply, and child is eligible to take if on the triggering date the child is alive or in utero and then born alive.

Question 39

Intestate Succession and Surrogacy - UPC and Texas

Answer 39

1. Rules vary by state.
2. UPC § 2-121 – based on parent-child relationship
   
   1. Surrogate - in absence of court order to the contrary, the surrogate does not have a parent-children relationship with the child unless no one else does.
   2. Intended Parent - An intended parent of the child has a parent-child relationship with the child if the person functioned as a parent of the child within the first two years of the child’s life.
3. Texas – if a child has intended parents under a gestational agreement, the child is the child of the intended parents and not the gestational parents.

Question 40

Intestate Succession and Assisted Reproduction - UPC

Answer 40

1. UPC 2-120(c) –
   
   1. Mother - a child conceived by assisted reproduction (other than surrogacy) is in a parent child relationship and entitled to inherit from the birth mother.
   2. Other Parent – can also have parent-child relationship with another person if the other person consented in writing to the assisted reproduction by the birth mother or functioned as the child’s parent for first two years of life.

Question 41

Advancement -

1. At Common Law
2. UPC and Majority Rules

Answer 41

1. Advancement – at common law, a lifetime gift by decedent to a child was presumed to be an advance (prepayment) on the child’s share of the decedent’s intestate estate.
2. UPC and Majority - A lifetime gift to an heir is not an advancement unless
   
   1. Declared as such in a contemporaneous writing by donor; or
   2. Acknowledged as such in a writing (not contemporaneous, can write later) by donee.

Question 42

Hotchpot -

1. Definition
2. Formula
3. Fluctuation in Value?

Answer 42

1. Hotchpot - Offsetting inter vevos gifts from share of intestate estate.
2. Formula – value of advancement added to value of intestate estate and then estate divided equally between the heirs. (Advancement + Estate)/number of heirs=Share)
   
   1. If the advancee’s share of the estate is greater than advancement = advancee is only entitled to the difference between advancment and the intestate share.
   2. If the advancee’s share of the estate is less than or equal to advancement = advancee keeps the advancement and isn’t entitled to share in the rest of the estate.
   3. Fluctuation in Value – advancements are valued as of the date of the advancement (appreciation or depreciation not relevant).

Question 43

Hotchpot

Answer 43

1. Hotchpot - Offsetting inter vevos gifts from share of intestate estate.
2. Formula – value of advancement added to value of intestate estate and then estate divided equally between the heirs. (Advancement + Estate)/number of heirs=Share)
   
   1. If the advancee’s share of the estate is greater than advancement = advancee is only entitled to the difference between advancment and the intestate share.
   2. If the advancee’s share of the estate is less than or equal to advancement = advancee keeps the advancement and isn’t entitled to share in the rest of the estate.
   3. Fluctuation in Value – advancements are valued as of the date of the advancement (appreciation or depreciation not relevant).

Question 44

If the Slayer is Barred, who takes?

Answer 44

1. The prevailing view is that the slayer is treated as having predeceased the victim.
2. In In re Estate of Covert, 761 N.E.2d 571 (N.Y. 2001), The court allowed the slayer’s innocent descendants to take from the decedent’s estate.
3. Some states extend the bar by statute to the slayer’s descendants, see Swain v. Estate of Tyre, 57 A.3d 283 (R.I. 2012).

Question 45

The Slayer Rule -

1. Generally
2. UPC/Majority
3. Texas

Answer 45

1. Generally - A slayer is barred to inherit from his victim; To prevent murderers from benefiting from their evil acts, most states have statutes prohibiting murderers from inheriting.
2. UPC/Majority - prevailing view is that slayer is treated as having predeceased the victim
   
   1. Conviction - final criminal conviction of a felonious and intentional killing is conclusive.
   2. Acquittal - inconclusive, probate court has to decide by preponderence of evidence if individual would be found criminally guilty of killing.
3. Texas - slayers’ statute (TXEC 201.058) only applies if a beneficiary of a life insurance policy is convicted and sentenced as a principal or accomplice in killing the insured.

Question 46

Unworthy Heir

Answer 46

1. The Unworthy Heir – aside from slayer rule, unworthy heir rules are sparse.
2. Minority of States –
   
   1. a spouse who abandons the decedent is barred, and parents who failed to support decedent as a child are barred from taking.
   2. Deny inheritance from elderly or other vulnerable relatives who were abused by the heir.
3. UPC § 2-114 – bars inheritance by a parent from a child if C&C evidence shows parental rights could have been terminated for nonsupport, abuse, or neglect.

Question 47

Disclaimer - Majority and UPC

Answer 47

General Rule - An heir, will beneficiary, beneficiary of a life insurance policy or employee benefit plan, or any other interest in property can disclaim the interest, in whole or in part.

Requirements -

1. Must be in writing, signed and (in most states) notarized.
2. Must be filed within 9 months after the decedent’s death. Under the UPC, a disclaimer must be made within a “reasonable” time.
3. Disclaimer can be partial (“I disclaim one-half of the interest bequeathed to me”).
4. A beneficiary or heir cannot disclaim after accepting an interest or its benefits. (Essentially an estoppel principle.)
5. A disclaimer, once made, is irrevocable.
6. Federal Tax Lien - Disclaimant cannot exercise dominion by attempting to direct who takes by reason of the disclaimer.

Question 48

Strategic Disclaimer Under UPC

Answer 48

Under per capita at each generation representation, an heir’s disclaimer may not enlarge the shares the heir’s descendants are entitled to. The share simply drops down to be divided equally between the heir’s descendants.

Question 49

Disclaimer and Creditors

Answer 49

1. Ordinary Creditors – most cases hold that a creditor cannot get at the disclaimed property. But:
   
   1. Bankruptcy – if a bankruptcy petition is filed before the debtor disclaimes, courts almost invariably hold that the disclaimer is ineffective under federal bankruptcy law.
   2. Federal Tax Lien – the IRS can reach the disclaimed property for the payment of federal tax lien.
   3. Medicaid - The giving away of property in order to meet Medicaid eligibility requirements may disqualify the applicant for a period of time depending on the nature of the transfer.