Intestate Estate Plan Flashcards
UPC 2-101. Intestate Estate
a. Things not given away by a will will be distributed via intestacy to heirs
b. The UPC will try to closely follow the intent of a decedent i.e. if they say in a will that they do not want a particular person to inherit
UPC 2-102. Intestate spouse share
the intestate share of the surviving spouse is:
- the whole estate if:
a. the descendant or parent of the descendant survives
b. all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives - the first [300K] plus 3/4 the balance of the intestate estate if no descendant of the decedent survives the decedent but a parent of the decedent survives
- the first [225K] plus 1/2 the balance of the intestate estate if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent
- the first [150K] plus 1/2 the balance of the intestate estate if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse
simultaneous death
when it is impossible to tell who of two or more people died first
ex: a couple dies in a car accident
120 hour rule
a beneficiary must outlive a decedent by 120 hours or 5 days in order to get an intestate share.
See janus v. Tarasewicz pg 75
English per stirpes (strict per stirpes)
- start at the generation nearest the decedent
- then count out the number of people living and dead with descendants and that is how many factional shares you have
Ex: A dies leaving and has three kids: B,C,D. C and D are dead, C has no children and D has two. Therefore, there will be two shares, one for B who is living, and one for D b/c she had descendants. Her kids, E and F will each split her half by way of representation.
Modern per stirpes
- start at generation nearest the decedent that has living people
- count out the number of people living and dead with descendants and that is how many fractional shares you have
Ex: A dies and all three kids, B,C, and D are dead. B had two kids E and F, C had no kids, and D had three kids G,H, and I. E and H are dead, but each have one kid J and K.
Start at gen. with grandkids, E, F, G, H, I. because both of the dead grand kids have kids, there are 5 shares. THe kids of the dead grandkids will take by representation
Per capita at each generation (UPC)
- start at generation nearest the decedent with a surviving person
- count the number of living people and the number of dead with descendant’s
- shares not used in that generation descend to the next generation and are divided equally. “equally near equally dear”
Ex: A dies and all three kids, B,C, and D are dead. B had two kids E and F, C had no kids, and D had three kids G,H, and I. E and H are dead, but E has two kids J and K and H has one kid, L.
Start at generation with E,F,G,H,I. there are five shares because three are alive and two left kids. The two shares allocated to the dead grand kids, E and H (2/5) descend to the next generation. The 2/5 is divided three ways between those great grandkids.
Laughing heirs
descendants that are so far removed from the decedent that they likely didn’t know him or feel pain when he died
Can a child inherit from their natural father and adoptive father’s families?
No. Once a child is adopted, they inherit from the adoptive parent’s family as a natural child would, not through the natural parent and family
Under the UPC, can an adult adopted take as part of a class gift to the children of the parent set up by someone other than the parent?
No. Adults adopted are presumptively excluded from class gifts to children
Equitable adoption
if there is an oral agreement to adopt between adoptive parents and natural parent, and the adoptive parents raise the baby, the baby is considered legitimately adopted under equitable adoption
Advancement
an advancement is a lifetime gift given to a child by a parent to be in lieu of an intestate share
Hotchpot
when an advancement has been made to one child, to determine what each child gets, at the advancement into the total estate and divide by number of children. Then subtract the advancement from the amount the child with the advancement
Slayer rule
a person who kills someone cannot inherit from the victim. Often the share that would have gone to the slayer is put in a constructive trust for the next beneficiary, and the slayer is considered to have predeceased the victim for this purpose.
Disclaimer
When someone refuses property inherited. Disclaimants are considered to have predeceased the decedent
