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Wills and Trusts > Intestacy > Flashcards

Intestacy Flashcards

1
Q

Who gets your stuff when you die?

A

Ask:
1. Probate or non-probate
2. Testate (will) or intestate (no will)

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2
Q

What goes through probate?

A

CP
QCP
SP

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3
Q

What are the 4 categories of non-probate?

A
  1. Life Insurance
  2. Joint Title
  3. Legal life estate/future possessory interest
  4. Intervivos trust (trust made during life; a transfer of property to one to be held for the benefit of another)
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4
Q

CPC 6401(married): Share of Surviving Spouse (if DS dies intestate)

A

CP: SS gets 100% of DS CP
QCP: SS gets 100% of DS QCP
SP: Three Percentages
1. 100%: SS gets everything if DS leaves no issue, parents, siblings, or issue of a deceased sibling
2. 50%: SS gets half if one of these two things apply: DS leaves one child or issues of a deceased child; if no child, then parents or issue of parents.
3. 33%: SS gets 1/3 if: (a) DS leaves more than one child (b) leaves one child and issue of one or more deceased child (c) issue of two or more deceased children

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5
Q

CPC 6402 (not married): Intestate Estate Not Passing Through Surviving Spouse

A

(a) Issue of D - equally
(b) Parents of D - equally
(c) Issue of Parents - equally
(d) Grandparents or Issue of Grandparents of D - equally
(e) issue of Predeceased Spouse - equally
(f) Next of Kin - equally
(g) Parents or Issue of Parents of Predeceased Spouse

*If none of the above apply, then the property escheats back to the state of CA.

Note: Issues must be of the same degree of kinship to take equally. If not, then apply Section 240.

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6
Q

CPC 6402.5: Recapture Doctrine - Recapture of Property of Predeceased Spouse

A

Applies only when:
1. The decedent dies intestate
2. SS is no remarreid
3. SS does not have any children
4. You got the property within the appropriate time frame from the predeceased spouse

Joint tenancy property is also up for recapture if it is attributable to the spouse’s death.

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7
Q

What are the Time Requirements for Property Under 6402.5?

A

Real Property: predeceased spouse dies within 15 years
Personal Property: predeceased spouse dies within 5 years

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8
Q

If the Recapture Doctrine Applies, then what happens?

A

The property is returned to the heirs of the predeceased spouse.

Priority among heirs:
i. Issue of predeceased spouse or domestic partner (from prior marriage)
ii. Parents of predeceased spouse
iii. Issue of parents of predeceased spouse
iv. Next of kin of decedent
v. Next of kin of predeceased spouse

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9
Q

6403: Survivorship Requirements

A

The surviving spouse must, with clear and convincing evidence, survive the predeceased spouse by 120 hours (5 days).

if the above is not established, then they did not legally survive the predeceased spouse, then the CP and SP property will be partitioned and each family’s side will inherit their respective interests.

The joint tenancy will create a partition and become a tenancy in common.

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10
Q

Does the Survivorship Requirement also apply to wills and non-probate?

A

No. It only applies to intestate succession.

The millisecond rule applies to wills and non-probate. Here, you just need to show that the spouse survived the predeceased spouse by a millisecond unless a different survival requirement is stated in writing.

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11
Q

3 Approaches to Shares of Descendants and 3 Questions to Ask

A

Approaches:
1. Per Stirpes
2. Per Capita
3. Per Capita at Each Generation

Questions to Ask:
1. At which generational tier do we make the first cut?
2. Into how many shares do we then divide?
3. What do we do with the dropping shares? (the shares that do not pass through)

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12
Q

Per Stirpes

A
  1. Child level without exception (even if they are dead)
  2. 1 for each live child and for each deceased child who leaves issue
  3. Bloodline descent
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13
Q

Per Capita

A
  1. First live taker
  2. 1 for each live taker and 1 for each deceased taker who leaves issue
  3. Bloodline descent
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14
Q

Per Capita at Each Generation

A
  1. First live taker
  2. 1 for each live taker and 1 for each deceased taker who leaves issue
  3. Pooling (we do not drop down the dropping shares; we take all the dropping shares, add them together, and then re-divide/re-allocate them)
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15
Q

What is the CA default rule: Per stirpes, traditional per capita, or per capita at each generation?

A

Traditional per capita.

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16
Q

CPC 246

A

Describes per stirpes.
Can only be invoked in writing.

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17
Q

CPC 247

A

Describes per capita at each generation.

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18
Q

Three Methods to Determine Next of Kin

A
  1. Parentelic Approach
  2. Degree of Relationship Approach
  3. Hybrid: Combination of Parentelic and Degree of Relationship Approach - Degree of Relationship with a Parentelic tiebreaker (CA Approach)
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19
Q

CA Hybrid Approach

A

Determine the degree of relationship of possible takers.

The relatives of the closest degree take, equally, to the exclusion of others of more remote degree.

if there are multiple takers sharing the lowest degree of relationship, those in the closer parentleic lines take equally, to the exclusion of the others who are remote.

20
Q

Issue

A

Anyone who exists in the first parentelic line; direct lineal bloodline descendants.

A series of parent-child relationships.

21
Q

Parent-Child Relationships: Inheriting From and Through

A

Children and parents can inherit both from and through each other.

22
Q

How do we establish a parent-child relationship?

A
  1. Natural Birth
  2. Adoption
    i. Traditional
    ii. Doctrine of Equitable Adoption
    iii. Step-Parent Adoption
    iv. Foster Parent Adoption
    v. Doctrine of Post-Death Adoption
    vi. Non-Step-Parent Adoption
23
Q

CPC 6451(a): Adoption

A
  1. Traditional Adoption: Adoption severs the relationship between the child and their natural parents, and creates a new relationship between the child and the new adoptive parents; severs inheritance rights with NP and creates new inheritance rights with new adoptive parents UNLESS:
  2. Exceptions:
    (1) The child and NP lived together for some period of time; OR
    (2) Were precluded from doing so because your natural father died before you were born.

AND

(1) The adoption occurs by the spouse of one of your NPs (in other words, your mother remarries and the adoption is by the new spouse); OR
(2) The adoption occurs after the death of either NP.

*If both of these conditions are satisfied, then the inheritance rights between the child and the NP will be preserved.

24
Q

4 Ways to Adopt

A
  1. Classic
  2. Post Death (preserve rights of the child through NP)
  3. Step Parent (new spouse adopts the child)
  4. Non-step-parent Adoption (If the adoption is by a new partner, an unmarried partner of a NP, and if both NPs are alive, then neither of the 2 exceptions apply, and as a result, the inheritance rights between the child and the NPS will be severed)
25
Q

CPC 6454: Foster Parent and Children

A

In the absence of adoption, foster parents have no legally recognizable relationship with the foster child.

However, if these 2 conditions are met, then the foster child can inherit through their foster parents:
(1) The relationship between the foster parent and child began at minority and continued throughout their joint lifetimes; AND
(2) It is established by clear and convincing evidence that the foster parent or stepparent would have adopted the foster child but for a legal barrier.

Most traditional legal barrier is consent.

This provision only applies to minors. Thus, the legal barrier to adoption is gone when the child turns 18, so the conditions under this provision cannot be satisfied.

26
Q

Is the relationship between the child and the child’s NP severed due to the foster-parent relationship when the child isn’t adopted by the foster parent?

A

No. The provisions give the child another set of parents to inherit from.

However, this is a one-way provision, so the foster parents cannot inherit from the foster child.

27
Q

CPC 6455: Equitable Adoption

A

Requirements:
1. An agreement between the NPs and the adoptive parents to adopt the child (CA requires clear and convincing evidence); AND
2. Performance by the NP in giving up custody; AND
3. Performance by the child by living in the home of the adoptive parents; AND
4. Partial performance by the adoptive parents by taking the child in and raising the child as their own; AND
5. Intestacy (the adoptive parents die intestate)

*In CA, equitable adoption is more contract-based.

28
Q

CPC 6406: Half-Blood

A

If a half-blood, you take the same as whole/full-blood.

29
Q

Disinheritance by Negative Will

A

“I leave nothing to…”
Modern approach - to disinherit, you have to affirmatively leave everything to someone else.
UPC says negative wills are okay

30
Q

CPC 2111.5(b): Child Must Be in Household or Close Family Matters - Cannot Spring an Unknown Child

A

A transfer made by anyone else in the world except the natural parent, a person born to the natural parent shall not be considered the child of that parent unless (this is the secret child no one knows about):
(1) The child lived while a minor as a regular member of the household of the natural parent or of that parent’s parent, grandparent, brother, sister, spouse, or surviving spouse
(2) Such children will not inherit through you unless they have been disclosed.

In construing a transfer by someone who is not the adoptive parent, a person adopted by the adopted parent shall not be considered the child of that person unless:
The person (adoptee) lived while a minor either before or after adoption.

31
Q

CPC 249.5: Posthumous Conception

A

Specify in writing the genetic material used for posthumous conception:
* Signed and dated by the decedent
* Specification can only be revoked and amended by the decedent in writing, signed and dated
* Designate a person to control the use of material; AND

The person designated to control the use of the genetic material must give notice to the executor or anyone who has control within 4 months to let them know more beneificiaes are coming.; AND

Must be pregnant (child in utero) within two years of date of issuance of a certificate of death/entry of judgment (first to occur).

32
Q

CPC 6409: Doctrine of Advancement

A

A lifetime transfer that is treated as an advancement against the heir’s share of the estate only if one of these are met:
(1) The decedent declares in a contemporaneous writing that the gift is an advancement against the heir’s share of the estate or that its value is to be deducted from the value of the heir’s share of the estate; OR
(2) The heir, the recipient, acknowledges in writing that the gift is to be deducted or is an advancement, or that its value is to be deducted from the value of the heir’s share of the estate.

33
Q

Doctrine of Hotchpot

A

If intended or acknowledged, we use “Hotchpot”. This is what we use to equalize things in advancement. We bring the estates back in. We view lifetime transfers as being eligible for division. We bring the lifetime transfers back and add them into the decedent’s estate, and the size of the estate will be different now.

34
Q

6409(d): Recipient of Advanced Property Fails to Survive Decedent

A

If the recipient of the property advanced fails to survive the decedent, the property is not taken into account in computing the intestate’s share to be received by the recipient’s issue unless the declaration or acknowledgment provides otherwise. It will not count against the kids who stand in their palace to inherit. We don’t count the advance against the issue of the predeceased donee.

The opposite result if there is a will: If there’s a will under the doctrine of satisfaction, the lifetime down payment against the will DOES count against the issues.

35
Q

Transfers to Minors

A
  1. Guardianship (Default, if not provided otherwise)
    Guardian guards and preserves the property until the minor reaches the age of majority.
    Guardians have limited powers over the property and must get probate court approval for anything.
    Guardians must account regularly to the probate court to make sure that assets are being properly maintained - BUT costly, and cumbersome.
    Terminates when the child reaches the age of MAJ.
  2. Conservatorship
    Conservators hold assets and protect them for the benefit of the conservatee
    Slightly more powers than a guardian.
    Costly and cumbersome, still requires court supervision
    Terminates when the child reaches the age of MAJ.
  3. Custodianship
    Governed by the Uniform Transfers to Minors Act
    The custodian has the power to use assets for the benefit of the minor.
    Gives more power to use assets for minor.
    Limited to no accounting required.
    BUT terminates when the child reaches the age of majority
  4. Trust (Preferred method)
    Gives unlimited flexibility in structure, and powers to be used.
    The ONLY method that lasts beyond when the child reaches the age of majority.
    Most expensive to set up, but cheapest to use.
36
Q

CPC 250: The Slayer Doctrine

A

Felonious and intentional.

The killer cannot inherit; we treat the wrongdoer as though they are predeceased and they take nothing under the will.

Applies to intestate, wills and trusts.

For wills and trusts: the issue of the killer cannot take either.

For intestate succession, the issue of the killer can still take.

37
Q

CPC 251: Joint Tenancy

A

Joint tenants become tenants in common - the relationship is severed by murder (when one joint tenant murders the other joint tenant).

38
Q

CPC 252: Life Insurance

A

Killer can’t take life insurance or any other account designated as a beneficiary - treat as predeceased.

39
Q

CPC 254: Determining Killer

A

To show that the person is a murderer and disinherits, you must show either: (a) conviction; or (b) preponderance of the evidence that they were the killer.

40
Q

What is a Disclaimer?

A

When a beneficiary or heirs turns down their inheritance. basically saying “no thank you” to a will.

41
Q

CPC 278: Disclaimer

A

A disclaimer must be:
(1) in writing (2) signed by the disclaimant (3) identify the creator of the interest (decedent) (4) describe the interest being disclaimed (what you don’t want), and (5) state the disclaimer and the extent of the disclaimer.

42
Q

CPC 279: Disclaimer

A

For a disclaimer to be effective, it must be filed within a reasonable time after the person able to disclaim acquires knowledge of the interest.

Within 9 months is a reasonable time to make a disclaimer.

43
Q

How will a disclaimer be treated?

A

It treats you as predeceased and the disclaimaints interests will be passed down to your next surviving issue, etc.

44
Q

Federal Government coming after Disclaimer

A

The federal government/IRS is a super creditor, and their interest cannot be affected by a disclaimer - they can still come after them.

45
Q

CPC 259: Elder Abuse

A

The individual is treated as predeceased, and thus won’t receive anything, if shown by clear and convincing evidence that they are liable for the physical abuse of an elder or dependent adult.

Wills and Trusts (4 decks)

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