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Flashcards in 1. Intestate succession Deck (33)
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1

Basics

What is the difference between total and partial intestacy?

 

Total Intestacy

Decedent dies without will

Partial Intestacy

D has a will but it does not dispose of all property

2

Basics

Can a will be altered in the case of partial intestacy if there is evidence that the decedent wanted to dispose of all property?

No

3

Applicable law

What intestacy law applies where there is a marriage?

Law of domicile at time propert was acquired controls ownership

4

Applicable law

What intestacy law applies for personal and real property?

 

Personal

D's domicile at death

Real

Law of the situs

5

Surviving Spouse's Share

At common law, is the spouse an heir?

No

6

Surviving Spouse's Share

Under modern law, is the spouse an heir?

Yes

7

Surviving Spouse's Share

Under modern law, what is the surviving spouse's share dependent on?

Number of children and whether they were had by the couple

8

Descendant's  Share

Who is a descendant?

Anyone related to decedant in a descending lineal line

9

Descendant's  Share

Who property does a descendant receive?

All property that does not pass to surviving spouse

10

Descendant's  Share

Where all children survive a decedent, what do they receive?

An equal share

11

Descendant's  Share

What limit is placed on a grandchild's ability to take?

They cannot take if their parent is still alive

12

Descendant's  Share

What are the three methods of property division where there are only distant relatives (grandchildren or beyond) or a mix of children/grandchild?

Which is the traditional method? Which is the majority method? And which method is there a modern trend toward?

Traditional

Per Stirpes

Majority

Per capita with representation

Modern Trend

Per capita at each generation

13

Descendant's  Share

How is property divided per stirpes?

Each receives one share, divisible by how many within a group there are

 

14

Descendant's  Share

How is property divided per capita with representation?

Divide at first level with survivors

 

15

Descendant's  Share

How is property divided per capita eat each generation?

Divide at first level with survivors, but relatives on the same level get an equal share

 

16

Ancestors

When will parents take, and how is their share split?

When there are no descendants, each gets half

17

Ancestors

When there are no descendants, but there is one suriving parent and one surviving sibling, what is the split of authority?

 

Some states and Uniform Probate Code

Entire estate goes to surviving parent

Some states

Split it

18

Adoption

From whom can an adopted child take and not take?

From adoptive parents; not biological parents

19

Adoption

When an adoptive child dies without descendants, who can take and who cannot take?

Adoptive parents take; biological parents do not

20

Adoption

How does adoption by estoppel work?

It protects de facto adoptive children where adoption did not formally take place

21

Adoption

Do these rules apply to adoption at any age?

Yes

22

Non-Marital Children

What must a father do to take?

Take a paternity test

23

Advancement

What is advancement?

Irrevocable gift intended by donor as prepayment on inheritance

24

Advancement

To rule an intervivos gift to be an advancement, what two things does the UPC require?

1. Gift must be declared an advancement in writing by the donor at the time the gift is made

2. Advancement must be acknowledged as such in writing by the heir

25

Advancement

For an advancee to share in an estate, what must they show?

They must account for the advancement which is subtracted from their share

26

Advancement

Under the UPC, does an advancement bind advancee's successors?

Not unless the writing states that it is

27

Satisfaction

What is required for an inter vivos transfer to satisfy a testamentary gift under UPC?

1. Decedent acknowledges, in writing, the gift as satisfaction at the time the gift is made

2. Recipient acknowledges, in writing, the gift as satisfaction

28

Satisfaction

When is a writing not required?

If the decedent gives specifically described property

29

Disclaimer

What is a disclaimer?

The ability of a beneficiary to refuse to accept the property

30

Disclaimer

What are the two requirements for disclaimer?

1. Irrevocable writing, signed by the disclaimaint, acknowledged by a notary

2. Filed within 9 months of decedent's death or disclaimant's 21st birthday