Intestacy

Question 1

Intestacy

Answer 1

Default estate plan developed by the legislature

Decedent’s actual intent is irrelevant

Question 2

Simultaneous Death

Answer 2

If there is insufficient evidence to determine who survived whom, the property will pass as though each had predeceased the other

Question 3

Slayer Statute

Answer 3

Person who kills decedent cannot be their heir

Court imposes a constructive trust and treats the “slayer” as predeceasing the decedent

Question 4

Surviving Spouse’s Share: Just Spouse

Answer 4

Decedent is not survived by parents or descendants

Surviving spouse take ENTIRE NET ESTATE

Question 5

Surviving Spouse’s Share: Spouse and Descendants

Answer 5

Decedent is survived by descendants who are also descendants of the spouse

Surviving spouse take 1/2 OF NET ESTATE

Question 6

Surviving Spouse’s Share: Spouse and Parents

Answer 6

Decedent is survived by a parent

Surviving spouse takes 3/4 OF THE ESTATE

Question 7

No Heirs

Answer 7

If Decedent dies without heirs, the property ESCHEATS to the state

Question 8

Partial Intestacy

Answer 8

If will does not contain residuary clause and does not make complete disposition of decedent’s property, then there is partial intestacy

Question 9

Who Qualifies as Issue?

Answer 9

Decedent’s lineal line, i.e. children, grandchildren, great-grandchildren and so on

Must have parent-child relationship

Question 10

Posthumously Born Children

Answer 10

Child conceived before, but born after, death of the mother’s husband

Child born within 11 months of decedent’s death is an heir of the decedent

Question 11

Half-Blood Relatives

Answer 11

Indiana makes no distinction between whole and half siblings

Question 12

Calculating the Issue’s Share: Per Capita with Representation

Answer 12

(1) Divide property equally at first generation where member survives decedent
(2) If deceased members exist at first generation, their share drop down to their surviving issue at the next generation
(3) If a deceased member of a generation is not survived by living issue, then that member does not take a share

LOOK AT PAGE 5 OF HANDOUT FOR VISUALIZATION

Question 13

Advancements

Answer 13

A lifetime gift to an heir that is treated as satisfying all or part of the heir’s intestate share

Use hotchpot analysis

Question 14

Hotchpot Analysis

Answer 14

(1) ADD value of the advancement(s) back into the intestate estate
(2) DIVIDE resulting estate by the number of heirs taking
(3) DEDUCT heir’s advancement from the heir’s intestate share

Question 15

Example of Hotchpot Analysis

Answer 15

Decedent dies intestate, leaving three children—A, B, and C— and an intestate estate worth $50,000. A received an advancement worth $8,000 and B received and advancement worth $2,000. C did not receive an advancement. What is each child’s intestate share?

(1) Add: $50,000 + $8,000 + $2,000 = $60,000
(2) Divide: $60,000/3 = $20,000 each

(3) Deduct:
$20,000 – $8,000 = $12,000 for A

$20,000 – $2,000 = $18,000 for B

$20,000 – 0 = $20,000 for C

Question 16

How to Determine if Lifetime Gift is an Advancement

Answer 16

Only advancement if:

(1) DECEDENT DECLARED in contemporaneous writing that gift was an advancement; or
(2) HEIR ACKNOWLEDGED in writing that gift was an advancement

WRITING REQUIRED in both situations

Question 17

Adultery

Answer 17

To deny a surviving spouse an inheritance due to adultery, the estate must establish that the surviving spouse:

(1) Was living in adultery AT TIME OF SPOUSE’S DEATH; and
(2) VOLUNTARILY ABANDONED the deceased spouse

Question 18

Abandonment

Answer 18

A surviving spouse who has abandoned the decedent without just cause is barred from sharing in the decedent’s estate

Requires that departing spouse:

(1) VOLUNTARILY left;
(2) Intended a PERMANENT separation; and
(3) Deceased spouse DID NOT AGREE to the separation NOR CAUSED IT