Wills-Intestacy:Distribution-DWB

Question 1

Typical

Intestate

Distribution

Scheme

Answer 1

1. Surviving spouse
2. Issue
3. Parents
4. Issue of parents
5. Grandparents
6. Issue of grandparents
7. Next of kin
8. Escheats to State

Question 2

Surviving Spouse

Answer 2

• Legal Spouse
• Putative Spouse
• Common Law Spouse

No cohabitant

California has separate laws which apply identical rules to domestic partners.

Question 3

Typical

Spousal

Share

Answer 3

• 100% if no surviving issue, parents, or issue of parents
• 50% if one issue or parents or their issue
• 33% if more than one issue

Question 4

UPC

Spousal

Share

Answer 4

• 100% if no issue, parents, parents’ isue, or if all issue are also surviving spouse’s issue
• $300k + 75% if no issue but parents or their issue
• $225k + 50% if survivor has separate issue
• $150 + 50% if decedent has separate issue

Question 5

California

Spousal

Share

Answer 5

Community Property

• Decedent’s 1/2 of community property

Individual Property

• 100% if no issue, parent, brother, sister, or issue thereof
• 1/2 if one child or their issue, or parents or their issue
• 1/3 if more than one child or their issue

Question 6

Per Stirpes

Answer 6

1. Devide evenly at first generation of descendants
2. Drop by bloodline thereafter

Question 7

Per Capita with Representation

Answer 7

1. Divide evenly between survivors and predeceased with issue at first generation with survivors.
2. Drop by bloodline thereafter.

Question 8

Per Capita at Each Generation

Answer 8

1) Divide evenly between surviving descendants and decendants with surviving issue.
2) “Pool” shares of predeceased descendants with surviving issue
3) Divide “pool” evenly at next generation in same manner, excluding descendants of previous takers.
4) Repeat 2 & 3 as necessary

Question 9

Intestate

Distribution

to Issue

Answer 9

• Per stirpes
  
  • (common law)
• Per capita with representation
  
  • (california, majority)
• Per capita at each generation
  
  • (UPC)

Question 10

Intestate Distribution

Ancestors

and

Collateral Relatives

Answer 10

• Parentelic Approach
• Degree of Relationship Approach
• Degree of Relationship with Parentelic Tiebreaker

Question 11

Parentelic Approach

Answer 11

1. Count ‘collateral lines’ up to the nearest common ancestor.
2. Distribute among surviving kin and surviving issue of predeceased kin per appropriate issue distribution scheme.

Question 12

Degree of Relationship

Answer 12

1. Determine degree of relationship by counting number of direct ancestor-descendant relationships between decedent and beneficiary. (Or count relatives between but do not count decedent)
2. Distribute among all surviving kin at closest degree with surviving kin

Question 13

Degree of Relationship with Parentelic Tiebreaker

Answer 13

Apply parentelic approach to multiple survivors of equal degree.

Question 14

California Intestate Distribution Scheme

Answer 14

1. Spouse,
2. Issue, by PCwR,
3. Parents equally or issue by PCwR
4. Grandparents equally or issue by PCwR
5. Issue of Predeceased Spouse by PCwR
6. Next of kin by DoRwPT
7. Parents of predeceased spouse or issue by PCwR

Question 15

Adoption

Answer 15

Generally, adoption creates a relationship between the adoptive parnet and the adopted child for the purpose of each inheriting from and through the other. The relationship between the natural parents (or the natural parent of the same gender as the adoptive parent) and the child is partially severed in such a way that such parent (s) may not inherit from or through the child, but the child may still inherit from and through their natural parent(s).

Question 16

Bastards

Answer 16

Where parents are unmarried, general rule is that child inherits from and through natural parents.

Natural parents must acknowledge and support the child to inherit from and through the child.

Question 17

Survial Requirement

and

Simultaneous Death

Answer 17

All jurisdictions have a requirement that a beneficiary survive the decedent. The various simultaneous death provisions apply to determine survival.

• Survive by a millisecond (CL)
• 120 Hr rule (Majority, UPC)
• Clear and convincing evidence (CA, Minority)

Question 18

Advancement

and

Satisfaction

Answer 18

At common law, inter vivos gifts to heirs and beneficiaris constituted advancement of inheritance through intestacy or satisfaction of gifts under a will.

Modernly, in both cases, an inter vivos gift is presumed not to be an advancement or satisfaction of a gift absent intent expressed in a contemporaneous writing by the testator or an acknowledgment in writing by the beneficiary.

Question 19

Effect

of

Homicide

on

Inheritance

Answer 19

Where a taker or beneficiary kills the decedent intentionally or feloniously (murder & intentional manslaughter but not negligent manslaughter), such person is treated as having predeceased the decedent.

Jurisdictions are split as to whether such a person’s issue is also disinherited.

Question 20

Disclaimer

Answer 20

A taker or beneficiary may disclaim their interest in their intestate share of decedent’s estate or a gift under decedent’s will. In such a case, that person is treated as having predeceased the decedent for the purposes of distribution. The applicable anti-lapse or class gift doctrines apply.