Intestate Succession

Question 1

What type of property does not pass through intestacy?

Answer 1

(1) Property with a death beneficiary
(2) Property held in an inter vivos trust
(3) Property held as a joint tenant with a right of survivorship

Question 2

Define: Amicable Division

Answer 2

Heirs may decide amongst themselves to a different distribution than would normally flow under intestacy.

Question 3

Define: Partial intestacy

Answer 3

When a person has a valid will that does not devise the entirety of the decedent’s estate and does not contain a residuary clause

Question 4

Under the UPC, may a decedent execute a will to prevent a person from taking through intestacy?

Answer 4

Yes. Intestacy will pass as if the person excluded disclaimed their share

Question 5

Define: Spouse

Answer 5

A person legally married to the decedent at the time of the decedent’s death

Question 6

If the decedent has a surviving spouse and no surviving parent or descendants, how much does the spouse take?

Answer 6

The entire estate

Question 7

If the decedent has a surviving spouse and a surviving parent, but no surviving descendants, what will the spouse take? What will the parent take?

Answer 7

(1) Spouse will take $300k plus 75% of the remainder
(2) Parent will take 25% of the remainder

Question 8

If the decedent has a surviving spouse and descendants that are only of the surviving spouse, and the spouse has no other descendants, what will the spouse take?

Answer 8

The entire estate

Question 9

If the decedent has a surviving spouse and descendants that are not of the spouse, how much will the spouse take? What will the descendants take?

Answer 9

(1) Spouse will take $150k plus 50% of the remainder
(2) Descendants will take 50% of the remainder

Question 10

If the decedent has a surviving spouse and descendants with the surviving spouse, but the spouse has a descendant not of the decedent, what will the spouse take? What will the collective descendants take?

Answer 10

(1) Spouse will take $225k plus 50% of the remainder
(2) Collective descendants will take 50% of the remainder

Question 11

If a person dies intestate without a surviving spouse, who takes?

Answer 11

The decedent’s descendants

Question 12

If a decedent’s child dies before the decedent, who takes?

Answer 12

The child’s child

Question 13

What is representation?

Answer 13

When a predeceasing descendant’s child takes the predeceasing descendant’s share

Question 14

In a situation where representation is applicable, will the predeceasing descendant’s will change how the property passes?

Answer 14

No. Under representation rules, the inheritance passes directly to the child

Question 15

What are the three rules for analyzing how multiple generations will take through intestacy?

Answer 15

(1) Strict per stirpes
(2) Modern per stirpes
(3) Per capita at each generation

Question 16

What is strict per stirpes?

Answer 16

Court makes equal divisions beginning at the first generational level, moving to the next level when a predeceased descendant requires representation. Divisions are made regardless of whether there is a surviving descendant at that generational level

Question 17

What is modern per stirpes?

Answer 17

Estate shares are divided at the generation nearest to the decedent that contains a surviving descendant

Question 18

What is per capita at each generation?

Answer 18

Shares are divided equally by the number of descendants in each generation. The court will reserve and division that would have been taken by a predeceasing descendant and distributes those shares equally at the next level

Question 19

What is the rule for adopted children in intestate succession?

Answer 19

Adopted children are treated as biological children of the adoptive parent and forfeit their intestacy rights from their biological parents

Question 20

What is the exception to the adopted-child forfeiture rule?

Answer 20

If a stepparent adopts a child, the child is heir to both the natural and adoptive stepparent

Question 21

What is the paternity presumption under the UPA?

Answer 21

An individual is presumed to be a child’s parent if:
(1) the individual resided with the child for the first two years of the child’s life; and
(2) Openly held out the child as his child

Question 22

Under the UPC, when is a parent barred from inheriting from or through the parent’s child?

Answer 22

(1) Parental rights were terminated and not judicially reestablished
(2) The child died before turning 18 and there is clear and convincing evidence that parental rights could have been legally terminated under state law

Question 23

What is an advancement?

Answer 23

When a descendant’s share is reduced by a gift given by the decedent during the decedent’s lifetime

Question 24

When will a descendant’s share be reduced by a lifetime gift?

Answer 24

(1) Decedent states in a writing contemporaneous with the gift that the gift is intended as an advance on the heir’s inheritance; or
(2) The heir acknowledges in a writing that the gift is intended as an advance

Question 25

How are advancements accounted for in intestacy?

Answer 25

Add the value of the gift to the estate’s value, distribute the estate, and then deduct the value of the gift from the applicable descendant’s share

Question 26

What is the simultaneous death rule?

Answer 26

If the heir apparent and decedent die in an event such that the order of their deaths cannot be determined, it is presumed the heir apparent died first (rebuttable by preponderance)

Question 27

What is the nearly simultaneous death rule?

Answer 27

Unless there is clear and convincing evidence that the heir apparent survived the decedent by 120 hours, the heir apparent will be deemed to have predeceased the decedent