Wills Flashcards
When is intestate succession used?
if a person dies without a will (or if the will is invalidated in part or in whole or does not make a total disposition)
If the decedent’s spouse and parents do not survive the testator, what are the two available schemes to divide property among the decedent’s children?
per capita at each generation (where all cousins will be treated alike) or per capita with representation (modern per stirpes) (where a child will simply take his parent’s share).
What is per capita at each generation?
where all cousins will be treated alike
What is per capita at each generation?
where all cousins will be treated alike
What is per capita with representation?
(modern per stirpes) (where a child will simply take his parent’s share)
How do you do per capita at each generation?
To decide who gets the shares of the estate, find the first generation where there are issue living. Give one share for each such living issue and one share for each person in that generation who predeceased the decedent but left issue surviving. Combine the shares belonging to the deceased persons and distribute them equally at the next generational level. (Cousins are treated alike.)
How do you do per capita with representation?
(modern per stirpes): this is the same as above except instead of combining all shares and dividing them equally, simply pass each deceased person’s share on to her issue(s). (Cousins are not treated alike.)
If there is no spouse and no children, what are two methods of determining heirship?
The civil law consanguinity method and the parentelic method adopted by the UPC
What is the consanguinity method?
Under the consanguinity method, heirship is determined by degree of relationship: all persons of the same degree of relationship to the decedent take equal shares (so an uncle and a niece are in the third degree of consanguinity and would be heirs entitled to equal shares).
What is the parentelic method?
Under the parentelic method, descendants of the decedent’s parents take to the exclusion of descendants of the decedent’s grandparents (so a niece would be an heir but an uncle would not).
What is a child for purposes of intestate succession?
child for purposes of intestate succession includes adopted children, children born out of wedlock, and half-bloods (but not stepchildren!).
What is an advancement and when does it arise?
This is an issue when the decedent dies without a will but gave a child a gift during her lifetime. The question is: Should the gift be deducted from what the child would inherit under the laws of intestate succession?
What is the common law advancement rule?
Al ifetime transfer to an heir was presumptively treated as a down payment on the heir’s intestate share and thus is taken into account when computing the heir’s intestate share. At common law, this only applied to a gift to a child (not, say, a gift to a sibling), but most states have broadened it to include any heir.
What is the majority law for advancement?
Most states today say that a lifetime transfer is presumed to be a gift and is ignored in computing the heir’s intestate share unless there is evidence to show that the decedent intended the gift to be an advancement.
When there is a will, what law applies to advancements?
Ademption by satisfaction