Wills - Intestacy Flashcards
When Intestacy Occurs
1) If you die without a will, it’s called “intestate as to the person”
2) Dying intestate “as to property” means the decedent had a valid will but for one reason or another the valid will did not dispose of all of the decedent’s property.
Intestate Succession - Basic Idea
To distribute all of the decedent’s nonprobate assets. It’s a governmentally supplied estate plan. Can’t be altered based on the decedent’s intent.
Characterization of Property / Which Law Applies?
If married intestate > need to determine who owns the property at the time of death.
Which jurisdiction’s laws control? > the law of the domicile at the time the property is acquired that determines who owns it
CA quasi-community property is property that would have been community property had it been earned in CA
Which state’s law applies?
1) Personal property > intestate decedent’s domicile at death
2) Real property > situs of the property
So, expect to use other state’s laws if a person, despite being domiciliary of CA, owns land in other places
Share of Surviving Spouse
The share of a surviving spouse is based on the type of property.
Who gets community property:
1) the surviving spouse inherits the deceased spouse’s one half of the community property and retains the one half of the community property that the spouse already owns. Basically the spouse ends up owning all the community property. Even if the dead husband had a kid from a prior marriage, the surviving wife gets all the community property from the marriage.
Who gets quasi-community property: this is personal property and CA real property that would have been community property had the spouses acquired it in CA. Surviving spouse inherits the deceased spouse’s 1/2 of the quasi-community property and retains the half she already owns. So the surviving spouse also ends up owning all of the quasi community property.
Spouse’s share of separate property:
1) surviving spouse inherits 1/3 of the deceased spouse’s separate property if the deceased spouse is survived by either more than 1 child, or 1 child and the descendants of 1 or more predeceased children or the descendants of 2 or more predeceased children. If fewer kids, then surviving spouse inherits 1/2. So the surviving spouse inherits 1/2 of the deceased spouse’s separate property if the deceased spouse is survived only by one child or the descendants of one predeceased child or no surviving descendants but at least one parent or a descendant of parent, which would be brother, sister, niece, nephew.
Surviving spouse inherits all of the deceased spouse’s separate property if the deceased spouse has:
- no surviving descendants,
- no surviving parents, or
- no surviving descendants of parents.
Share of Descendants
General: descendants receive all of the intestate’s property that does not go to surviving spouse
How to determine share of descendants: PER CAPITA with REPRESENTATION
If all descendants are same degree of relationship (like all descendants are children or all grandchildren) they each receive an equal or “per capita” share. A younger gen descendant like a grandchild can’t take if an older gen descendant (like a child) is still alive. What if there’s at least 1 descendant who predeceased the intestate and one who does survive the intestate? Follow PER CAPITA WITH REPRESENTATION: divide into initial shares at the first generation with at least 1 surviving member. Then create 1 share for each member of that generation and 1 share for each member of that gen who has at least 1 surviving descendant. Then each member of first gen gets 1 share and the share for the deceased member is distributed in like manner to that person’s descendants.
No Descendants
Ancestors and collaterals take anything not passing to surviving spouse in this order:
- Parents: 1/2 each if both survive. If only 1 survives, all goes to that one.
- Descendants of parents: if no parents, then goes to siblings of dead guy
- Grandparents
- Descendants of grandparents
- Descendants of predeceased spouse (like stepchildren)
- Next of kin (“laughing heirs”)
- Parents of predeceased spouse and their descendants
- If no one else, “escheat” to the state
Special Rules for Property Inherited from Predeceased Spouse
If a surviving spouse dies without descendants, the following property the surviving spouse received from the deceased spouse passes to the deceased spouse’s heirs rather than the surviving spouse’s heirs:
1) Real Property unless the deceased spouse died at least 15 years prior
2) Personal Property worth over 10k unless the deceased spouse died at least 5 years prior
Treatment of Various Individuals
Adopted individuals = adopted child is surgically engrafted into the family tree and treated as if they were a normal biological child. BUT they don’t inherit from biological parent unless adopted by stepparent.
Stepchildren and Foster Children = treated as adopted children if 2 things true: 1) relationship began when child was minor and continued through parties’ joint lifetimes and there’s 2) clear evidence stepparent was precluded from adopting through some legal barrier.
Equitable Adoption/ Adoption by Estoppel = the conduct of parent could be raised to a level that person could be treated as a child even if no formal adoption occurred.
Nonmarital child = there’s a diff between nonmarital child inheriting from mother or father. Easy to inherit from mother - need proof. To inherit from father, child must show 1 of the following:
1) man was married to mother at time of birth or within 300 days after the marriage ended
2) man attempted to marry mother before kid’s birth and it was born during attempted marriage or 300 days thereafter
3) man attempts to marry after child’s birth or is named on birth cert or ordered to pay child support or man holds the child out as his own or there is court judgment of paternity.
Half-Blooded Heirs = Half-blooded collateral heirs inherit full shares no differently than full blooded heirs
Child Conceived after Intestate’s Death = posthumous child inherits as if they were born during posthumous intestate’s lifetime if all of the following conditions are satisfied: 1) written signed and dated authorization for posthumous conception including designation of a person to control the use of the genetic material; 2) the person in control of the genetic material gave notice within 4 months of the issuance of the decedent’s death certificate to the person who controls the decedent’s property; 3) child was conceived and in utero using the intestate’s genetic material within 2 years of the issuance of the decedent’s death certificate
Unworthy Heirs
These are disqualified from being heirs:
1) Heir who feloniously and intentionally kills decedent
2) “Bad parent” =
-> didn’t acknowledge kid
-> abandoned em for at least 7 consecutive years
-> parental rights terminated
3) Heir who neglects or abuses elderly or dependent intestate
Advancement
irrevocable lifetime gift intended as pre-payment of inheritance
Effect of advancement: if advancee wants to share in the estate, must account for the advancement using hotchpot. We compute the shares as if the advancement were still in the estate based on the value of the property at the first of 1) when the heir received it or 2) the time of the intestate’s death
Example of hotchpot: 30k estate of dad with 2 kids. Dad gives 10k to Kid1 as advancement. There is 20k left when he dies. Kid1 gets another 5k but Kid2 gets 15k because the advancement accounts for 2/3 of what Kid1 expected based on intestacy
Survival
Heir must survive decedent by at least 120 hours to inherit.
Disclaimer
An heir, will beneficiary, life insurance beneficiary, etc can’t be forced to accept an inheritance or gift under a will. A beneficiary may disclaim any interest that otherwise would pass to the person from the decedent.
Requirements of Disclaimer: it must
1) be in writing
2) be signed by disclaimant
3) identify decedent
4) describe interest being disclaimed (you can cherrypick)
5) state there is a disclaimer and the extent of it, also must be NOTARIZED
6) be filed within a reasonable time, which is presumed if it is filed within 9 months after the later of the death of the decedent or the date the interest becomes indefeasibly vested
Effect of Disclaimer: passes as if the disclaiming heir had predeceased the decedent.
Disclaimers are IRREVOCABLE
