Pg 3 Flashcards
What is the circumstance when there will be intestate succession?
If there is no will or if at least one item of probate property is not disposed of in the will.
What are the FOUR things that are always non-probate?
- joint tenancy
– life insurance
– pay on death
– trusts
If the facts on an essay do not say that there’s a will, what should you assume?
That there isn’t one
What is partial intestacy?
Dying with private property that the will doesn’t apply to. So you must do an intestate succession analysis for all property that is not covered by the will.
What are the two major situations where partial intestacy applies?
- when the will by its terms doesn’t apply to all of the decedent’s probate property
– when the will is found to be invalid or only partially valid
If a will leaves $100,000 to you, but then the decedent dies and has $1 million in his estate, what happens?
Intestate succession is used to determine what happens to everything except the $100,000
What are the circumstances that a will would be found invalid or partially invalid?
- if it didn’t have the needed formalities
- if it resulted from fraud or undue influence
- if the testator didn’t have mental capacity to execute it
What is the best way for the bar examiners to test both wills and intestate succession?
By using partial intestacy
If the will says, “Car goes to A, house goes to B, and $50,000 go to C.“ Then the testator dies with a car, a house, a necklace, $75,000, and a $100,000 insurance policy, what happens?
There is a valid will, so the house, car, and $50,000 can be distributed under it. The life insurance is non-probate. So the leftover $25,000 and necklace are distributed by intestate succession.
How do you determine the surviving spouse’s share when it comes to intestate succession?
Three parts:
– determine if there is a surviving spouse
– determine which property qualifies as community property, quasi-community property, or separate property
– calculate the surviving spouse’s share
What are the presumptions that are made with regard to intestacy and a surviving spouse?
The law presumes that the decedent would want his surviving spouse to get most or all of the estate, and if there are minor children, it presumes that the surviving spouse will use the money to provide for them
What are the things you need to consider when determining a surviving spouse’s share under intestate succession with regard to determining if there is a surviving spouse?
See if the person never married, if the spouse is already dead, if they are divorced, etc.
What is property that qualifies as community property?
Marital property, assets, and income that is acquired during the marriage.
What is the intestate share of a surviving spouse for community property?
1/2. During the marriage each spouse owns 1/2 of the community property, and at death, the surviving spouse gets the decedent’s 1/2 too, so now the surviving spouse owns all of the community property. If the decedent didn’t want that, he should have willed his half away. The surviving spouse then owns 100% of all community property at death.
What is considered to be “quasi-community property” for intestate succession?
Property or income that was gotten by a married person while he was living in a separate property state that would have been community property if it was acquired in California.
What is the intestate share that goes to the surviving spouse of “quasi-community property”?
This is the same as community property, so the surviving spouse gets the decedent spouse’s 1/2 of the quasi- community property which makes the surviving spouse a full owner because he already owns half of it.
What is considered to be separate property for intestate succession?
Any property that isn’t community property or quasi-community property. This is anything gotten before the marriage; during the marriage by gift, device, or bequest; or anything earned after the marriage ends.
What is the intestate share for a surviving spouse of separate property?
Between 33% and 100% depending on who else is present
What are the different options for determining the separate property share with regard to intestate succession for a surviving spouse?
- if there are no other surviving issue, parents, siblings, or issue of siblings = 100%
– if there is only one child or the issue of one dead child = 50%
– if there is more than one kid or one kid and the issue of one or more dead kids, or the issue of two or more dead kids = 33%
What are the percentages for determining the separate property share for a surviving spouse regarding intestate succession?
– 100%
– 50%
– 33%
In a nutshell, what are the categories for determining separate property for a surviving spouse with regard to intestate succession?
– 100%: no one else left
– 50%: one kid or the issue of one kid. One bloodline
– 33%: two or more bloodlines
What is involved if a surviving spouse only gets 50% of the separate property under his intestate succession?
One bloodline remains in addition to the surviving spouse. So the decedent left:
– one child
– the issue of one dead child [grandkid or many grandkids as long as they all came from one child]
– no kids but left a parent, sibling, or issue of a sibling
What is involved if a surviving spouse only gets 33% of the decedent’s separate property according to intestate succession?
Two or more bloodlines:
– decedent left more than one child
– one kid and the issue of one or more dead kids
– the issue of two or more dead kids
How are adopted children and children born through assisted reproduction technology treated with regard to bloodlines for intestacy?
The same as biological kids
What is involved for intestate succession when you have to determine the class of takers that take besides the surviving spouse?
The first requirement is that the surviving spouse hasn’t already taken everything. Then there is a hierarchy of priority where the taking class takes to the exclusion of anyone that is less prioritized.
What is the hierarchy of priority for determining the class of takers that take in intestate succession outside of the spouse?
The higher up the person is, the more prioritized they are.
- The issue of the decedent
- The decedent’s parents [equally]
- The issue of the decedent’s parents [siblings of the decedent and their children]
- Grandparents [equally]
- Property escheats to the state
How do you distribute property to the heirs that are within a class of takers under intestate succession?
This requires consideration of degrees and generational steps. Parents are one generational step up from the decedent, and grandparents are too. Anyone on the same relational level takes equal shares.
What are the two major approaches to distributing within a class of takers for intestate succession?
– English per stirpes approach
– Modern per stirpes approach
What is the English per stirpes approach to determine how to distribute within a class of takers for intestate succession?
This divides the estate into equal shares at the first generation, regardless of whether those people are alive or not. So the surviving issue of the deceased members take by representation. This treats each line of descendant equally. The kids of each dead decedent represent their dead parent and are moved into that parent’s position. This is called vertical equality and is followed by 1/3 of the states.
What is involved in the modern per stirpes approach to distribute within a class of takers for intestate succession?
This is the California approach and is followed by half of the states. This skips generations that don’t have any living members in them and goes straight to the first generation that has a living member. Then the surviving issue of the deceased members take by representation.
If a decedent has two children, one of which has already died and has two kids of his own, and the other of which died and left one child. How do you split up this estate under intestate succession?
- English per stirpes: it doesn’t matter that the original kids are dead, you divvy up the estate based on how many bloodlines there are. Since there were two original bloodlines, you split the estate in half. The surviving issue of the first child and the second child both take by representation. So the first child’s kids split their half equally, which means they each get 1/4 of the estate. The second child’s kid takes all of his portion, so he gets 1/2 of the estate.
– Modern per stirpes: since there are no surviving kids, you skip that dead generation and you go to the grandkids because it is the first one with living members. There are three grandkids, so the estate is equally split between each of them.
What does representation mean with regard to surviving heirs?
A child that dies before an intestate decedent does doesn’t get a share of the estate
Modernly is there often a distinction between whole blood and half-blood relatives?
No
What is good wording when you encounter partial intestacy on an essay?
“The facts and will indicate that T’s estate includes ________, however his will only disposes of a few of those things. The remainder is not addressed in the will. Wills often have rest and residue causes that provide that anything not devised goes to the residue. If T’s will has this language, then the remainder passes via that provision to the residuary devisee. But this will has no residual language, so the extra items pass outside the will through intestate succession.“
