Rules of Intestacy

Question 1

Testacy

Answer 1

Decedent leaves a will that provides for the disposition of property at death (also allows testator to select guardians for minor children and an executor for the estate)

Question 2

Intestacy

Answer 2

Decedent leaves no will. The probate estate passes by intestacy

Question 3

Partial Intestacy

Answer 3

Decedent leaves a will that disposes of only part of the probate estate; the part of the estate not disposed of by the will passes by intestacy

Question 4

UPC:
S; no D; no P
�

Answer 4

§2-102(1)(A) all S

�

Question 5

UPC:

S; D�

Answer 5

• §2-102(1)(B) all S only if all D are also S’s and S’s only kids
• §2-102(3) $225K + 1/2 S if D are also S’s but S has others; rest D
• §2-102(4) $150K + 1/2 S if one or more D is not S’s; rest D

Question 6

UPC:
S; no D; P
�

Answer 6

§2-102(2) $300K + 3/4 S; rest P

�

Question 7

UPC:

no S; D�

Answer 7

§2-103(a)(1) all D (per capita at each generation)

�

Question 8

UPC:
no S; no D; P
�

Answer 8

§2-103(a)(2) all P

�

Question 9

UPC:
no S; no D; no P; B or S
�

Answer 9

§2-103(a)(3) B or S (per capita at each generation)

�

Question 10

UPC:
no S; no D; no P; no B or S; G or GD
�

Answer 10

§§2-103(a)(4) and (5) 1/2 paternal G; 1/2 maternal G or all to maternal or paternal if no survivors on other side – per capita at each generation
�

Question 11

UPC:
no S; no D; no P; no B or S; no G or GD
�

Answer 11

-§2-103(b) stepchildren
-§2-105 escheat to state; therefore no “laughing heirs”; note: no great grandparents
�

Question 12

Indiana Comparison

Answer 12

-If no living parents or descendants, spouse receives entire estate under UPC and in IN
-If the decedent has living descendants only through the spouse, spouse still receives entire estate under UPC but first $25,000 plus half of the remaining estate in IN (with rest to descendants)
-If no living descendants but a living parent, spouse receives first $300,000 plus ¾ of the remainder under UPC or first $25,000 plus ¾ of the remainder under IN (with rest to parents)
�

Question 13

Indiana Comparison (continued)

Answer 13

• UPC and IN include grandparents and descendants of grandparents in their list of potential heirs (i.e., aunts and uncles and their descendants), but neither includes more distant relatives.
• UPC turns to step-children if the list of blood relatives is exhausted and the spouse is deceased (2-103(b)), but IN does not.

Question 14

Indiana Comparison (continued)

Answer 14

-UPC reduces spouse’s share if either decedent or spouse has a child from a previous marriage (2-102(3)-(4))
-IN reduces spouse’s share if decedent had a child from a previous marriage, but only when the spouse and decedent had no children together (29-1-2-1(c))
�

Question 15

Uniform Simultaneous Death Act

Answer 15

• UPC §§ 2-104, 2-702 (1990, rev. 2008); �

- Claimant must establish survivorship by 120 hours (5 days) by clear and convincing evidence

Question 16

English Per Stirpes

Answer 16

Vertical equality – each line of descent treated equally

Question 17

Modern Per Stirpes

Answer 17

Each line of descent treated equally beginning at first generation with a living taker

Question 18

1990 UPC Stirpes (Per Capital at each generation)

Answer 18

Horizontal equality – each taker at each generation treated equally (“equally near, equally dear”)

Question 19

Adoption

Answer 19

• “On adoption, a child no longer shall be considered a child of either natural parent, except that upon adoption by the spouse of a natural parent, the child shall be considered the child of that natural parent” (current law)
• “Upon entry of a decree of adoption, the adopted child shall lose all rights of inheritance from its parents and from their natural collateral or lineal relatives” (prior law)

Question 20

Adoption (UPC)

Answer 20

b) [Stepchild Adopted by Stepparent.] A parent-child relationship exists between an individual who is adopted by the spouse of either genetic parent and:
(1) the genetic parent whose spouse adopted the individual; and
(2) the other genetic parent, but only for the purpose of the right of the adoptee or a descendant of the adoptee to inherit from or through the other genetic parent.
UPC 2-119
�-Some states allow adopted children to inherit from both adoptive and genetic parents

Question 21

If an adopted child can inherit through the genetic parent after being adopted by a step-parent, why can’t the genetic parent inherit through the adopted child? Why is it a one-way street?
�

Answer 21

-Inheritance would become too complex if genetic relatives as well as adoptive relatives could inherit from or through the child;
-Is not clear that this is what the intestate decedent would want; and
-If adoption records are sealed, it may not be possible for the adopted child to prove who the genetic relatives are and vice versa.
�

Question 22

Adoption (Indiana)

Answer 22

For all purposes of intestate succession, including succession by, through, or from a person, both lineal and collateral, an adopted child shall be treated as a natural child of the child’s adopting parents, and the child shall cease to be treated as a child of the natural parents and of any previous adopting parents. However, if a natural parent of a child born in or out of wedlock marries the adopting parent, the adopted child shall inherit from the child’s natural parent as though the child had not been adopted, and from the child’s adoptive parent as though the child were the natural child. In addition, if a person who is related to a child within the sixth degree adopts such child, such child shall upon the occasion of each death in the child’s family have the right of inheritance through the child’s natural parents or adopting parents, whichever is greater in value in each case.
Ind. Code 29-1-2-8 (emphasis added)
�

Question 23

Adoption and Wills

Answer 23

Does an adopted child also step into your shoes as a genetic child for purposes of your share under someone else’s will (e.g., child adopts grandchild)?
Traditional trusts and estates law said no—testators who were “strangers-to-the-adoption” were not viewed as intending that the adopted children take
Current law includes a presumption that adopted children will be treated as genetic children. If testators do not want adopted children to be treated as genetic children, they need to say so (something to remember when advising clients whose wills you draft)
�

Question 24

Posthumously-born children

Answer 24

• If H dies, and W is pregnant, their posthumously-born child will be treated as a child for purposes of trusts and estates law
• The State requires certainty of the decedent’s paternity - not difficult to establish with posthumously-born children
• The usual limitations period is one year. (not fair for posthumously-conceived children)

Question 25

Indiana Posthumous law

Answer 25

-Descendants of the intestate, begotten before his death but born thereafter, shall inherit as if they had been born in the lifetime of the intestate and had survived him.
-With this exception, the descent and distribution of intestate estates shall be determined by the relationships existing at the time of the death of the intestate.
-Ind. Code § 29-1-2-6
�

Question 26

UPC Posthumously

Answer 26

-45-month window to give birth to a child

Question 27

Advancements (UPC)

Answer 27

UPC § 2-109(a) treats gift as an advancement only if
(i) the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement or
(ii) the decedent’s contemporaneous writing or the heir’s written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent’s intestate estate
�

Question 28

Advancements (Indiana)

Answer 28

Ind. Code § 29-1-2-10

(1) the decedent declared in a writing or the heir acknowledged in a writing that the gift is an advancement; or
(2) the decedent’s writing or the heir’s written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent’s intestate estate.�

Question 29

Guardianship of Minors

Answer 29

Guardianship of the property
–Subject to burdensome and costly judicial supervision and should be avoided.
Conservatorship
–A guardian of property with investment powers similar to those of trustees, more flexible than guardianship.
Custodianship
–A person is given property to hold for the benefit of a minor under the UTMA or UGMA. Useful for modest funds.
Trusts
–Flexible and highly customizable property management arrangement. (Don’t expire when child reaches age 18 or 21)
�

Question 30

Bar to Succession

Answer 30

Heirs may lose their inheritance either because they forfeit their rights through misconduct or because they voluntarily relinquish their rights
Similar principles apply to devisees in a will or beneficiaries of a trust

Question 31

Slayer Rule (Bar to succession)

Answer 31

If you kill the decedent, you lose your entitlement as an heir, devisee or beneficiary (forfeiture)

• Slayer inherits - don’t want to impose an additional penalty for the crime plus constitutional prohibition against corruption of blood
• Legal Title does not pass to slayer - no one should be able to profit from wrongdoing
• Slayer receives constructive trust for heirs next in line (UPC and Indiana)

Question 32

Slayer Rule (Non-probate transfers) (Ind)

Answer 32

A person is a constructive trustee of any property that is acquired by the person or that the person is otherwise entitled to receive as a result of an individual’s death, including property from a trust

• A slayer is one if the person has been found guilty, or guilty but mentally ill, of murder, causing suicide, or voluntary manslaughter
• Don’t let the slayer’s heirs take

Question 33

Disclaimer (Bar to succession)

Answer 33

You may voluntarily relinquish your entitlement as an heir, devisee or beneficiary (waiver)

• Usually done to reduce taxes or avoid having one’s share of an estate go to one’s creditors
• 9 month time limit under federal tax code

Question 34

Constructive Trust without a conviction

Answer 34

A criminal conviction is a sufficient and conclusive basis for imposing a constructive trust but not a necessary basis—can demonstrate guilt by a preponderance of the evidence in a civil proceeding to impose a constructive trust (e.g., when killer commits suicide after the murder or when killer is acquitted)
UPC § 2-803(g)

Question 35

Disqualification for other misconduct in some states

Answer 35

Abandonment of spouse
Failure to support
Abuse or neglect of parent or child

Question 36

Indiana Intestacy Law

Answer 36

(1) One-half (1/2) of the net estate if the intestate is survived by at least one (1) child or by the issue of at least one (1) deceased child.
(2) Three-fourths (3/4) of the net estate, if there is no surviving issue, but the intestate is survived by one (1) or both of the intestate’s parents.
(3) All of the net estate, if there is no surviving issue or parent.
Ind. Code 29-1-2-1(b)