Wills — Intestacy

Question 1

What is Intestacy?

Answer 1

This is the system that governs how the property will be disposed if the property is not covered by a will or will substitute.

Question 2

What is a Decedent?

Answer 2

A person who died.

Question 3

What is a Descendant?

Answer 3

Children, grandchildren, … (linear down)

NOTE: In CA, descendants are called issues.

Question 4

What is an Heir?

Answer 4

Someone who takes in intestacy.

You do not have any heirs until you die, rather, you have heir apparents.

Question 5

What is the goal of intestacy law?

Answer 5

To dispose of property the way that the decedent would have disposed of it, if they made a will.

Question 6

Choice of Law For Disposing Property

Answer 6

IF it is personal property, THEN the law is the state in which the decedent is domiciled.

IF it is real property, IT is the state in which the real property is located.

Question 7

What is community property?

Answer 7

Property that is acquired during marriage, except that property which is acquired by gift or inheritance.

CA is a community property state.

Question 8

What is quasi community property?

Answer 8

Personal property that would be community property if it was acquired in a community property state. (Note, this does not apply to real property, for RP apply the law of situs.)

BASICALLY, if you die in CA and you own personal property in a non-CP state, then that property is treated as CA CP.

Question 9

What is a separate property?

Answer 9

Property that is acquired before marriage or gift/inheritance during marriage.

Question 10

What is the Law of the Surviving Spouse?

Answer 10

Under the UPC they are 2-102, 2-103.

In CA, it is CPC 6401 and 6402.

These laws determine how the property should be distributed if the property is intestate.

These statutes will be provided.

The main difference between UPC and CA, is that CA considers siblings of the decedent AND there is no ‘CHUNK’ at the beginning in CA.

Question 11

What is representation?

Answer 11

The act of dividing property among a decedent’s descendants.

Question 12

What are three different representation systems?

Answer 12

1. English Per Stirpes;
2. Modern Per Stirpes (CA system); and
3. Per capita at each generation

Question 13

How does English Per Stirpes, aka Strict Per Stirpes work?

Answer 13

This is followed by 1/3 of the states. Focuses on VERTICAL EQUITY.

Step 1: Start at the first line of the decedent’s descendants (aka the decedent’s children).

Step 2: Divide the property into the number of the first descendants.

Step 3: Continue to divide that descendants share based on the number of sub-descendants.

Question 14

How does Modern Per Stirpes (MPS) work?

Answer 14

CA uses MPS. along with 1/2 of the states.

Step 1: Start root generation at the line of the first SURVIVING descendants.

Step 2: Distribution beings at the line of living descendants, even i there is just one.

Question 15

How does Per Capita at Each Generation?

Answer 15

Step 1: Root generation starts at the line of the first SURVIVING descendants.

Step 2: Everyone at the same generation gets the same amount, regardless of how many siblings they have. Then take the shares of the dead folk and distribute them equally.

Question 16

What is a collateral kindred?

Answer 16

People who are related by blood to the decedent but who are not descendants or ancestors.

Question 17

What is a laughing heir?

Answer 17

Distant relatives who are so far removed from the decedent that they likely do not know him and suffered no sense of bereavement upon learning of his death.

Question 18

UPC 2-103? , CPC 6402

Answer 18

These statutes tell you how to dispose of property other than the property of the surviving spouse.

These statutes will be provided BUT make sure to understand them.

Question 19

What is the issue with simultaneous death?

Answer 19

Basically, requires that the heir apparent, in order to take, must survive the decedent for at least 120 hours with CLEAR and CONVINCING evidence.

NOTE: this rule applies to everything, not just intestacy.

the case Janus v. Taraseqicz came up with this requirement.

CA JUST APPLIES THIS INTESTACY.

Question 20

What is advancement?

Answer 20

When a decedent dies, the intestate share of a decedent’s children must be discounted by the value of any property that the decedent gave each child living in ADVANCE.

The child may prevent advancement, by proving that the decedent DID NOT INTEND the gift to be counted against the child’s share of the estate.

NOTE: advancement only applies to intestacy.

How to calculate:

Step 1: Add the advancement to the estate value.

Step 2: Divided the estate value + advancement by the number of children.

Step 3: subtract the child with the advancements share by the advancement.  

Step 4: Non-advanced children get the share without the subtraction, children with advancement gets the subtracted share.

In both CA and the UPC, advancement are presumed invalid and therefore, they REQUIRE A WRITING.

Under the common law, however, advancements are presumed valid regardless of a writing.

Question 21

What is Hotchpot?

Answer 21

If the advancement is greater than the share the child would have received without the advancement, then the child just keeps what they got from the advancement.

Note if hotchpot happens, the calculation is to just divide the estate value by the number of children who did not receive an advancement.

Question 22

The Slayer Rule

Answer 22

In Re Estate of Mahoney – although the wife murdered her husband, the court held that it depends on whether the wife voluntarily or involuntarily murdered. The goal should be to prevent unjust enrichment.

UPC 2-803 – Effect of Homicide
If heir is found as having voluntarily killed the decedent than they are treated as having DISCLAIMED (aka predecased) in the property immediately before the victim died.

In CA, the court determines if the killing was intentional based on a preponderance of evidence, if so, then the slayer is treated as having PREDECEASED the decedent. Further, people who act in bad faith, fraudulently, physical abuse, neglect, etc. are also treated as PREDECEASED.

NOTE: in both UPC and CA, descendants of the slayer may take.

Question 23

What is disclaimer?

Answer 23

When an heir or devisee decline to take the property. Motive could be to reduce taxes or to keep property away from creditors.

YOU SHOULD TREAT THE DISCLAIMED PERSON AS HAVING PREDECEASED, and then pass it down.

NOTE: for REPRESENTATION, you do NOT treat them as predeceased.