Wills 2 - Intestate Succession

Question 1

intestate succession…
Applies when

Answer 1

Property may pass by intestate succession when:

1. No will;
2. Will fails (decedent’s will is denied probate);
3. Will does not dispose of all probate property, either bc gift failed or bc will contains no residuary clause (partial intestacy)
   (i.e., undisposed-of property is subject to intestacy rules); or
4. Will specifies intestate distribution

Question 2

Distribution scheme:.
Which state?

Answer 2

The distribution scheme cannot be altered to fit the decedent’s intent regardless of evidence that shows the decedent would not have wanted their property to pass the way intestacy provides.

If decedent was married @ time of death - Use the law of the domicile at the time of the property of the state, we dont care if the couple moves.

For personal property, we use the law of the decedent’s domicile at death. For real property, we use the law of the situs of the property.

Question 3

Surviving Spouse’s Share

Answer 3

1. If no descendants survive
   In most states, surviving spouse takes the entire intestate estate if no descendants survive,

In UPC, surviving spouse only takes entire estate if no descendants and no parents survived

2. If some descendants also survive
   In most states, SS takes one-half or one-third of the estate if descendants survive.

Under UPC, SS takes entire estate if decedent is survived by descendants that are all descendatns of SS, and SS has no other surviving descendant (meaning neither D or SS have surviving descendant from someone else).

Some states provide for a dollar amount plus one-half or one-third if descendants survive.

3. UPC—surviving spouse takes entire estate if all surviving descendants are surviving spouse’s descendants

Question 4

Shares of Descendants and Other Heirs

Answer 4

The portion of the estate that does not pass to SS goes to descendants (children and descendants of deceased children).

Descendants take share of estate not passing to surviving spouse

Per capita with representation [Majority]

property is divided into equal shares at the first generational level at which there are living takers

then passes down normally - Each living person at that level takes a share, and the share of each deceased person at that level passes to their issue by right of repre- sentation.

So if all D’s children dead and only grandchildren survive, they would all share equally.

Per capita at each generation [Modern trend]

Make initial division at first generational level with living takers, BUT shares of dead people at that level are combined and then divided eqaulyl among takers at the next generational level.

People at each level take equal shares as other people at that level.

Strict per stirpes (aka classic per stirpes)

Minority—

(division always at child level (first gen), even if no child survives. If the child is dead, goes down classic way directly to their descendants.)

2. If no descendants survive, the intestate estate passes to ancestors and collaterals in this order, proceeding down the list until takers are found:
   a. To parents or parent

b. If no parents, to descendants of parents (brothers and sisters of Decedent and their descendants)

c. If no descendants of parents, to grandparents or their descendants (both to one side if no takers on other side).

d. If no grandparents or their descendants, divided into maternal and paternal shares and pass to nearest kin (watch for laughing heir statute)

e. If no relative capable of taking, the estate passes to the state (escheat)

Descendants = “heirs” = peson who takes by intestacy

Question 5

Adopted children?

Answer 5

treated same as biological child in adopting family; all inheritance rights cut off in family of natural parents. Adopting parents take from the adopted child too.

Question 6

Stepchildren and foster children?

Answer 6

no inheritance rights unless adopted, but may be exception for adoption by estoppel - permits a child to inherit from or through a stepparent or foster parent when legal custody of a child is gained under an (unfulfilled) agreement to adopt them.

Question 7

Posthumous children

Answer 7

Child born after death of their parent.
Child in gestation at decedent’s death inherits as if born in decedent’s lifetime.

Question 8

Nonmarital children

Answer 8

A Nonmarital child Always inherits from the mother.

Also will inherit from father if:

a. Father and mother married after child’s birth,

b. The man is adjudicated the father in a paternity suit, or

c. After the man’s death, during probate proceedings, he is proved to be the father of the child by clear and convincing evidence.

Question 9

Half bloods

Answer 9

Half bloods are brothers and sisters who have only one common parent. In most jurisdictions, siblings of the half blood and the whole blood inherit equally.

Question 10

Disinheritance Clause in will

Answer 10

Majority—ineffective if partial intestacy. Will provision expressly disin- heriting an heir is ineffective as to any property passing by intestacy; so the will must dispose of EVERYTHING to effectively disinherit an heir.

Minority and UPC—given full effect, a testator may exclude the right of an individual to succeed to property passing by intestate succession; heir treated as though he had disclaimed his intestate share. (“negative” will provision)