Wills - Intestate Succession

Question 1

Probate may pass by intestate succession when:

Answer 1

1. A decedent dies without having made a will or their will is denied probate
2. A decedent’s will does not dispose of all of their property

Question 2

Do you have heirs when you are alive?

Answer 2

No. You have heirs apparent.

Question 3

Intestate Share of Surviving Spouse

Modern Law

Answer 3

Depends on factors such as:

• the number of children;
• whether the surviving spouse is is the other parent of the deceased spouse’s children

Question 4

Survival of All Children

Answer 4

Each child receives an equal share.

A descendant from a younger generation cannot take if the older generation is still alive.

Question 5

Classic/English Per Stirpes

Answer 5

• Vertical equality – each line of descent treated equally
• People take according to the share above them

Divides into shares at the child generation even if no child survives the intestate.

Question 6

Modern Per Stirpes

Majority Rule, Per Capita with Representation

Answer 6

Start division when there is a generation with survivors (each line of descent treated equally beginning at the first generation with a living taker)

this is equitable horizontally

Question 7

Modern Trend - Per Capita Eat Each Generation

1990 UPC

Answer 7

Each taker at each generation treated equally (“equally near, equally dear”)

Persons in the same degree of kinship to the decedent ALWAYS take equal shares.

Question 8

Intestate Decedent’s estate - order of passing

Answer 8

• spouse and/or descendants
• parents or surviving parent
• brothers and sisters and their descendants
• ½ to paternal and ½ to maternal grandparents & their descendants
• some states won’t look further but if they do - ½ each to nearest kin on maternal and paternal side

Question 9

If no descendant’s can be found, what happens to decedent’s estate?

Answer 9

Estate escheats to the state

Question 10

Inheritance for Adopted Children

Answer 10

Take from their adoptive parents.

Generally no inheritance in either direction between adopted children & their biological parents (once adopted, you don’t take from biological parents)

Question 11

Adoption by Estoppel

Answer 11

Sufficient relationship may be able to inherit as a child.

See this w/ step or foster children - permits a child to inherit from or through a step/foster parent when legal custody of a child is gained under an unfulfilled agreement to adopt them.

Question 12

Exception for when Adopted Children can take from Biological Parents

Answer 12

Where one of the biological parents marries an adopting parent or the child is adopted by a close relative

Question 13

Adopted Adults

Answer 13

• not permitted in some states (age matters)
• most states → age of adoption does not matter

Question 14

Do stepchildren have a right to inherit?

Answer 14

Generally, no, unless adopted by stepparent or adoption by estoppel is available

Question 15

When will nonmarital children inherit from their father?

Answer 15

1. the father married the mother after the child’s birth
2. the man was adjudicated to be the father in a paternity suit; or
3. after his death & during probate proceedings, the man is proved by clear & convincing evidence to be the father

Question 16

When will posthumous children inherit?

Answer 16

• if a person is in gestation at the time of the intestate’s death
• some states allow child of the intestate not in gestation to inherit if born within a statutorily stated period of time (e.g., 2 years)