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