Wills Flashcards
Ways property passes at death
• By will (through probate)
• By statutes of intestate succession (through probate)
• By will substitute (outside of probate)
o Life insurance: proceeds pass to the designated beneficiary by K
o Joint tenancy with rights of survivorship
o Assets in trust that pass to beneficiaries named in the trust instrument
Heirs
Persons entitled to inherit from an intestate decedent under the statutes of intestate succession.
prospective heirs
person who would be the heirs of the living person died intestate.
No rights in the property of the living person, mere expectancy. Therefore cannot release.
Beneficiaries
devises in a will of a living person.
No rights in the property of the living person, mere expectancy. Therefore cannot release.
Surviving spouses
Interest cannot be defeated by decedent’s will, more than a mere expectancy. Therefore can be released.
When intestacy rules apply?
- If D dies without a will
- If D dies testate (with a will) but the will does not totally dispose of all of D’s property (partial intestacy)
- D’s will is successfully contested AND no earlier will takes affect.
- IF D dies with will but has a pretermitted heir.
Share for Surviving spouse: intestacy
Spouse takes all when: D has no descendents OR if all of D’s descendents are also of spouse’s.
Spouse takes First $20,000 plus ½ of remainder when: one child (or descendent) of D survives and that child from a different relationship.
Spouse takes first $20,000 plus 1/3 of remainder when: more than one child of D survives and all from dif. relationship.
Spouse takes $60,000 plus 1/3 of remainder when: children survive and S is parent of at least one.
Share of Descendants: intestacy
IF D is survived by descendents they will share the portion remaining after the spouse’s share.
The estate is divided per stirpes (per capital with representation). Go to the first generation where there is a survivor. Then divide by each person in that generation that either survived or has surviving descendents. The surviving descendents split the portion that would go to their parent had he or she lived.
Other family member’s interests: intestacy
If D not survived by spouse or descendants then to D’s parent or surviving parent.
If D’s parents do not survive then to descendants of parents. (brothers and sisters, and their descendants by rep)
If none then to grandparents. ½ to paternal, ½ to maternal. If neither of grandparents on one side survive, then the descendants of those grandparents split the half. If no descendants of grandparents on one side, the other gets all.
If none take after that it goes to next of kin (closest blood relative). No kin then to step-children or descendants, by rep.
If none estate escheats to the state.
Children
Posthumous child: conceived before death, born after. Treated as if born before death.
Adopted: treated just like natural children.
Step children foster children: Not treated as natural children.
Adopted children
Treated as natural children BUT
Cannot inherit from or through their natural parents, AND
their natural parent cannot inherit through their natural child who has been adopted by others.
