MFT *** IV. INTESTATE SUCCESSION

Question 1

The intestate succession rules apply when

Answer 1

(1) decedent left no will (or will was not validly executed), (2) the will does not make a complete disposition of the estate (“partial intestacy”), or (3) an heir successfully contests the will, and will is denied probate.

Question 2

A. SURVIVED BY SPOUSE – COMMUNITY PROPERTY
15. Hal dies intestate survived by his wife Wendy and by their three children: Al, Bill and Carol. Hal and Wendy owned community property worth $320,000. What distribution?

Wendy:

Al, Bill and Carol:

Answer 2

• takes all
• takes none

Since Hal was survived by descendants, all of whom were descendants of the surviving spouse (the one-marriage situation), as to community property:

Question 3

A. SURVIVED BY SPOUSE – COMMUNITY PROPERTY
15a. [July 2012, Feb. 2013] Hal dies intestate survived by his wife Wendy and by their three children: Al, Bill and Carol. Hal and Wendy owned community property worth $320,000. What distribution? except that Al and Bill were children by Hal’s first marriage. Carol was adopted by Hal and Wendy after their marriage. community?

Wendy:

Al, Bill and Carol:

Answer 3

Since Hal was survived by descendants, some of whom were NOT descendants of the surviving spouse:

-Wendy: 1/2, because she owns that 1/2 by CP
not because inheritance

-Al, Bill and Carol: 1/2

Question 4

B. SURVIVED BY SPOUSE – SEPARATE PROPERTY

Separate personal property [Six times since Feb. 1996]: Hal also owned stocks and bonds, inherited from his mother’s estate, worth $300,000. What distribution?

Wendy:

Children (or descendants), whether of this marriage or an earlier marriage:

Suppose, instead, that Hal was survived by Wendy and his mother and father, but not by descendants:

Answer 4

• Wendy: 1/3; surving spouse’s share is always 1/3
• Children (or descendants), whether of this marriage or an earlier marriage: 2/3
• ALL TO SURVIVING SPOUSE [Feb. 2012] (Parents, collateral kin never inherit separate personal property if the intestate was survived by his or her spouse.)

Question 5

Separate real property [Feb. 2013; five times since 1996]: Hal also owned a ranch when he married Wendy. What distribution?

Answer 5

Wendy: 1/3 life estate

Children (or descendants), whether of this marriage or an earlier marriage: remainder (2/3) outright, plus remainder following 1/3 life estate)
keep it in the blood line, so after Wendy dies, then children have fee simple to the entire estate

Question 6

Still dealing with Hal’s separate real property, suppose, instead, that Hal was not survived by descendants. Separate real property [Feb. 2013; five times since 1996]: Hal also owned a ranch when he married Wendy.
He was survived by Wendy and his parents or [Feb. 1994, Feb. 1996] descendants of parents—brothers and sisters. What intestate distribution of the ranch?

Suppose, instead, that Hal was survived by Wendy but not any descendants, parents, or descendants of parents. Hal’s nearest kin are his uncle and aunt (descendants of Hal’s grandparents). As for separate real property:

Answer 6

Wendy: 1/2 in fee simple
Parents (or descendants of parents): 1/2

-all to surviving spouse

Question 7

If any question (whether dealing with a will or intestacy) involves a surviving spouse, should also mention in essay?

Answer 7

you should also mention Homestead (if applicable), Exempt personal property set-aside, and Family allowance. [The acronym is HEF] Thus in answering a recent question, after discussing intestate distribution to be made, it would have been appropriate to say:
“If the home in Jetway County qualifies as a homestead, [wife] Joan is entitled to exclusive occupancy of the homestead for so long as she occupies it. Also, some of the personal property assets may qualify for an exempt personal property set-aside in Joan’s favor. Finally, if Joan owns little or no separate property, she can petition for a family allowance in an amount needed for her support for one year. The exempt personal property set-aside and family allowance come ‘off the top’ of the estate before the intestate distribution is made.”

Question 8

C. DESCENDANTS TAKE PER CAPITA WITH REPRESENTATION
Feb. 2012, Feb. 2014] Mary, a widow, dies intestate, survived by the family members indicated below, what distribution

Mary
A;B;C died; D died
C1, C2; D1, D2, D3

Answer 8

Per capita with representation: Per capita at first level; by representation at the next level. Go down to first generational level at which there are living takers, and then:

A: 1/4
B: 1/4
C1 and C2: 1/8 each
D1-D3: 1/12 each

Question 9

Feb. 2012, Feb. 2014] Mary, a widow, dies intestate, Mary was survived by the five grandchildren as her nearest kin. What distribution?

Answer 9

1/5 each for the grandchildren

Go down to first generational level at which there are living takers

Question 10

D. NOT SURVIVED BY SPOUSE OR DESCENDANTS
17. Sam, unmarried, died intestate. He was survived by his mother, two sisters and their children, and two nephews (children of a deceased brother). What distribution of Sam’s estate?

If survived by both parents? except?

mom
B died; S1; S2; Sam died
B1, B2; S11; S21, S22

what about B1, B2; S11; S21, S22

Answer 10

If survived by one parent and collaterals, half and half:

mom 1/2
S1 and S2: 1/6 each
B1 and B2: 1/12 by representation from B

If survived by both parents, 1/2 to each parent.*

• But [recent statute—bad daddy rule] a parent cannot inherit from or through a child if there is clear and convincing evidence that parent (1) abandoned and failed to support the child (delinquency on child support), (2) knowingly abandoned and failed to support child’s mother during her pregnancy, or (3) was criminally responsible for the death or serious injury of a child.

Nothing, because their parent was alive to inherit

Question 11

18, in inheritance by collateral kin,
If Alice dies intestate and her nearest kin are her full sister (“whole-blood”) Betty and her half-sister Carol (only one common parent),

Answer 11

Betty would inherit two-thirds and Carol would inherit one-third of Alice’s estate.

rule: half-bloods inherit half as much as whole bloods

Question 12

E. NO LIMIT ON DEGREE OF RELATIONSHIP NEEDED TO TAKE AS HEIR

If the decedent was not survived by parents or descendant of parents?

Answer 12

[Feb. 2004] Texas does not have a “laughing heir” statute (actually, an “anti-laughing heir” statute), which eliminates inheritance by remote relatives. In Texas, there is no limit on the degree of kinship that qualifies one to be an heir. If the decedent was not survived by parents or descendant of parents, 1/2 to maternal grandparents and their kin, 1/2 to paternal grandparents and their kin; etc., “and so on without end” until heirs are found on maternal and paternal sides. [Feb. 2004: Where a substantial estate and no immediate family, administrator should hire genealogist to locate and identify remote relatives.]

Question 13

F. CHILD BORN OUT OF WEDLOCK – “CHILD WITHOUT A PRESUMED FATHER”

19. [Feb. 1989] Frank gets Maude pregnant. After Maude gives birth to the child (Cliff) out of wedlock, Frank and Maude go their separate ways. Maude marries Hobie Gates; Hobie does not adopt Cliff. Thereafter, Frank dies intestate. Can Cliff inherit from Frank, his natural father?

Suppose, instead, Maude (natural mother) dies intestate; can Cliff inherit from Maude?

Suppose, instead, Hobie Gates dies intestate. [Feb. 2014] Can Cliff inherit from Hobie?

Answer 13

no; unless
(1) [Feb. 2014] presumption of paternity under the Family Code: (a) Child was born during (or w/in 300 days after) marriage or attempted but void or voidable marriage; or (b) parties married after child’s birth and the man voluntarily asserted his paternity: (i) in a record filed with Bureau of Vital Statistics, or (ii) by consenting to be named father on birth certificate, (iii) by promising in a record to support the child; or ***(c) [July 2011] during first two years of child’s life he resided with the child and represented to others that the child was his.
OR (2) [July 2007] man signed sworn statement acknowledging paternity
OR (3)paternity was established in a paternity suit
** OR (4) [July 2004] paternity is established in probate proceedings by: clear and convincing evidence

For good cause shown, court may order genetic testing of a decedent. even if he’s died

• Yes and vice versa. There’s never a question as to who the mother was.
• no, step child doesn’t inherit unless adoption by estoppel

Adoption by estoppel permits inheritance from foster parent (even if they promise but didn’t perform), but not his kin.

Question 14

G. INHERITANCE RIGHTS OF ADOPTED CHILDREN
20. Frank gets Maude pregnant. After Maude gives birth to the child (Cliff) out of wedlock, Frank and Maude go their separate ways. Maude marries Hobie Gates; Hobie does not adopt Cliff. Thereafter, Frank dies intestate.

Suppose, instead, shortly after Cliff’s birth he was adopted by the Allens. a. [Feb. 2014] If Mr. Allen dies intestate, can Cliff inherit from him?

b. If Maude dies intestate, can Cliff inherit from Maude, his natural mother?

Person adopted as adult can inherit from ?

Answer 14

Yes (and vice versa) Adoption establishes parent-child relationship for ALL purposes of Texas law.

-yes, unless in decree terminating parent-child relationship,
inheritance were rights expressly terminated. But if [Feb. 2012] the termination decree is silent as to inheritance rights, child can inherit from and through Maude.

This is a one-way street rule. If Cliff dies intestate, Maude cannot inherit from Cliff even if the decree terminating parent-child relationship did not terminate inheritance rights. Family Code rule permits child to inherit from and thru the mother, but not vice versa.

[July 2005] Person adopted as adult can inherit from adopting parent, but not from biological parents. [July 2010, July 2011:] Bequest to children “born of my body”—adopted child not included.

Question 15

H. DEATHS IN QUICK SUCCESSION – THE 120-HOUR RULE
21. [July 1993] Fred, a widower, and his son Sam are in a fatal car accident. Fred is pronounced dead at the scene; Sam dies two days later. Surviving family members are Fred’s daughter Donna, Sam’s wife Wilma, and Sam’s two children, Gary and Grace. Sam left a will leaving “all my property” to Wilma.

a. [Feb. 2004] Fred died intestate. What distribution? Donna takes 1/2; as for the other 1/2:
b. [July 1999] Assume, instead, that Fred left a will that devised his estate “one-half to my son Sam and one-half to my daughter Donna.” What distribution of Fred’s estate? Donna takes 1/2, of course; what about the other 1/2?
c. Suppose, instead, that Fred left a will that devised his estate “one-half to my son Sam if he survives me, and one-half to my daughter Donna if she survives me.” Fred was killed instantly in the crash; Sam died two days later.

Answer 15

120 hours rule: must survive the deceased by a 120 hours to be his heir, if not, treat him as if he predeceased T
here would have gone to Sam if he met the 120 but he didn’t
therefore, to Sam’s 2 children by representation

Does the 120-hour rule apply to wills? yes
read the will as Sam predeceased Fred, triggering anti-lapse statute
Sam failed to survive 120, treat him as if he predeceased T and other 1/2 to Sam’s children by anti-lapse statute (only when theres a will)

Does the 120-hour rule apply? no
If will requires survival, or covers simultaneous death, or deaths in a common disaster, the 120-hour rule DOES NOT APPLY.
Sam inherit it for 2 days and pass to his wife follow his will

Question 16

22. [July 2007] Hal and Wilma are in an accident. Hal is pronounced dead at the scene; Wilma dies two days later. Hal and Wilma owned community property worth $200,000. Hal’s nearest kin is his brother Bob; Wilma has a child (Clyde) by her first marriage. Neither left a will.
    ______ [Feb. 2000] Does the 120-hour rule apply to community property?

Answer 16

If H and W die within 120 hours of each other, one-half of the community property passes through H’s estate (to Hal’s brother) as though H survived W; and one-half passes through W’s estate (to Clyde) as though W survived H.
Same result if Hal and Wilma left wills.

The 120-hour rule applies to life insurance policies (even if named H as insured and W as beneficiary, W’s estate doesn’t take as beneficiary because she failed to survive H by 120 hours) [July 2000, July 2007]
and joint and survivor bank accounts [July 2007], and also to property held in joint tenancy with right of survivorship. In effect, treated as tenancy in common: One-half passes as though the one joint tenant survived; one-half passes as though the other joint tenant survived.
To trigger right of survivorship, one party must survive the other by 120 hours.

Question 17

I. DISCLAIMER BY HEIR OR BENEFICIARY
23. [Feb. 1998] Tate, a widower, leaves a will that bequeaths his $2 million estate “to my children, Sue and Bob, in equal shares.” Sue, who is a partner in a large Houston law firm and has two children, wants to disclaim her interest in her father’s estate. [July 2007] What must Sue do to make an effective disclaimer?

additional disclaimer

what effect does it have

Answer 17

to aviod gift tax (must within 9 months) ; avoid creditor’s claims

#1. Must be written, signed, and acknowledged (before notary public);
#2. Must state that disclaimant is not in arrears on child support;
#3. Must be filed within _9 months_ after decedent's death; and
#4. Must be filed with probate court, with copy to personal representative

If Sue makes an effective disclaimer, T’s estate is distributed as though disclaimant predeceased the decedent.
Therefore, the 1/2 interest bequeathed to Sue passes:
***anti-lapse applies in favor of her children

Additional points: Disclaimer can be partial (e.g., “I disclaim one-half of the interest bequeathed to me”). Guardian or administrator can disclaim in behalf of incapacitated or deceased party with court approval (but independent executor doesn’t need court approval). [July 1997] Parent, as parent, cannot disclaim on behalf of minor child; only legally appointed guardian or managing conservator) can disclaim on behalf of the child.

Question 18

J. LIFETIME GIFT TO HEIR OR WILL BENEFICIARY
24. [July 1996] Fran, a widow, gives her son Al land worth $30,000 on Al’s 35th birthday, and orally tells her other sons (Bill and Carl) that they will receive similar gifts when they reach 35. Fran dies intestate before the other gifts are made. The value of Fran’s estate is $300,000. What distribution?
Should the lifetime gift to Al be treated as an advancement?

Answer 18

Texas: A lifetime gift to a descendant (or any other heir) is NOT treated as an advancement UNLESS:
(i) declared as such in contemporaneous writing_ by the donor,
or (ii) acknowledged as such in writing by the donee.

Therefore, in distributing Fran’s intestate estate:
ignore the gift because no writing
1/3 to each

If there were written evidence of an advancement, it would be treated as a [$300,000 + $30,000 =] $330,000 estate (bringing in the advanced property at its date-of-gift value) to be divided three ways, with Al already having received $30,000 of his share.

Question 19

K. UNAUTHORIZED COMMERCIAL USE OF DECEDENT’S NAME OR LIKENESS
Different succession rule—half and half rule—applies to decedent’s property right in the unauthorized commercial use of his name, voice or likeness. [July 2004—popular sports figure’s name and photograph used in television commercials.] The party making such unauthorized use can be held liable for damages, profits obtained, exemplary damages, and attorney’s fees.
recovery?

Answer 19

The recovery goes [absent disposition during lifetime or by will] (i) one-half to surviving spouse and one-half to descendants, (ii) all to spouse if no descendants, (iii) all to descendants if no spouse.

Question 20

A. SURVIVED BY SPOUSE – COMMUNITY PROPERTY
survived by children with the surviving spouse:
survived by children not with the surviving spouse:

B. SURVIVED BY SPOUSE – SEPARATE PROPERTY
survived by Children (or descendants), whether of this marriage or an earlier marriage:
survived by spouse and deceased’s parents, but not by descendants:

separate property:
survived by Children (or descendants), whether of this marriage or an earlier marriage:
survived by deceased’s parents:
survived by nearest kin are his uncle and aunt:

Answer 20

spouse takes all;
spouse takes half, children take half

spouse takes 1/3, children takes 2/3;
spouse takes all

spouse: 1/3 life estate, Children (or descendants), whether of this marriage or an earlier marriage: remainder (2/3) outright, plus remainder following 1/3 life estate);
spouse: 1/2 in fee simple, Parents (or descendants of parents): 1/2
spouse takes all