Chapter 3 Flashcards
UPC §2-102(1) gives the surviving spouse 100% of the decedent’s estate where, besides the surviving spouse, either of the following is the situation:
The decedent is not survived by any descendants or parents.
The only descendants of either the decedent or the surviving spouse that are alive at decedent’s death are descendants of their relationship (sometimes referred to here as “joint children” or “joint descendants”).
UPC §2-102(2) deals with the situation where, at death, the decedent is survived by her spouse and parents but not by any descendants.
In this scenario, the spouse gets a large portion of the probate estate ($300,000) plus three-quarters of the amount in excess of $300,000, with the remaining one-quarter of the excess going to the parents.
Procedure for Determining the Per Stirpes Share
Step One:
Determine the number of shares by dividing the estate into as many equal shares as there are:(1) living children of the decedent, if any, and(2) deceased children with descendants then living who will represent them.This “slicing of the pie” determines the number of bloodlines. Each bloodline will get an equal amount, no matter how many grandchildren or great-grandchildren of the decedent there are in a given bloodline.
This system is unique in that the division always occurs at the first generation (i.e., the child generation) even if everyone in that generation is dead!
Step Two:
Distribute one share to each living member of the highest generation.
Step Three:
For the children who were not alive but whose bloodlines were entitled to a share because they have descendants, determine the portion allocated to that bloodline in the same manner as Step One above and distribute the probate property in the same manner as in Step Two. Repeat this generation by generation, putting each descendant who is represented at the top of the chart as if it was that person who was the decedent and whose property was being distributed.
Procedure for Determining the Shares Employing the Per Capita with Representation (Modified Per Stirpes) and the 1969 UPC Per Stirpes Systems
Step One: Find the first generation where there are living descendants. At that generation, determine the number of shares by dividing the estate into as many equal shares as there are:living descendants of the decedent, if any, anddeceased descendants in the same generation who are represented by their living descendants.
Do not determine the initial number of shares at a generation where there are no living descendants and everyone is merely represented. There must be a living descendant at a generation to justify the share determination.
Step Two:
Distribute one share to each living member of the highest generation.
Step Three:
It is at Step Three that the modified per stirpes and the 1969 UPC per stirpes systems diverge. With the modified per stirpes method, Step Three is the same as Step Three for strict per stirpes. In other words, for lower generations, it is not necessary to find at least one living member. However, for the 1969 UPC per stirpes model, we repeat Steps One and Two above for each generation.
Procedure for Per Capita at Each Generation
Step One: Find the first generation where there are living descendants. Determine the number of shares by dividing the estate into as many equal shares as there are:living children of the decedent, if any, anddeceased children in the same generation with descendants then living.
Step One is identical to the modified per stirpes method. In other words, perform Step One at the highest generation where someone is alive.
Step Two:
Distribute one share per capita to each living member of the first generation where there are living members.
Step Three:
Combine the remaining shares, if any, into a pot for sharing by lower generations.
Step Four:
Move down to the next generation and repeat Steps One to Three until the entire estate is distributed.
UPC §2-101 says, p. 98“[a]ny part of a decedent’s [probate] estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in this Code. . . . ”
.
UPC §2-104 requires anyone taking by intestacy to survive the decedent by at least 120 hours (the equivalent of five days).
.
UPC §2-102. Share of Spouse.
The intestate share of a decedent’s surviving spouse is:
(1) the entire intestate estate if:
(i) no descendant or parent of the decedent survives the decedent; or
p. 102(ii) 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 decedent;
(2) the first $300,000 [+ COLA], plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent;
(3) the first $225,000 [+ COLA], plus one-half of any 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;
(4) the first $150,000 [+ COLA], plus one-half of any balance of the intestate estate, if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse.
.
Decedent survived by spouse, joint descendants, and spouse’s descendants: If, in addition to being survived by her spouse, the decedent is survived by both joint descendants (i.e., descendants who are related by blood or adoption to both the decedent and the surviving spouse) and step-descendants (i.e., descendants of the surviving spouse who were not descendants of the decedent or adopted by the decedent), UPC §2-102(3) gives the surviving spouse $225,000 plus 50% of the amount in excess of $225,000. The other half of the excess goes into the intestate pot for distribution to the descendants of the decedent; nothing goes to the step-descendants.
.
Decedent survived by spouse and descendants who are not joint descendants: In the blended situation in this part, UPC §2-102(4) gives the smallest amount of all the scenarios to the surviving spouse—only $150,000, plus 50% of the balance—and places the greatest amount into the intestate pot for the decedent’s descendants. It is worth noting that this section applies in all cases where the decedent is survived by a descendant who is not a descendant of the surviving spouse, regardless whether there are also joint descendants or descendants of only the surviving spouse or not. In other words, subsection 102(4) “trumps” all other outcomes under UPC §2-102
.
UPC §2-109. Advancements.
(a) If an individual dies intestate as to all or a portion of his [or her] estate, property the decedent gave during the decedent’s lifetime to an individual who, at the decedent’s death, is an heir is treated as an advancement against the heir’s intestate share only if (i) the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement or (ii) the decedent’s contemporaneous writing or the heir’s written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent’s intestate estate. [Emphasis added.]
.
Between a gift and a loan is an advancement. While one who receives an advancement is not obligated to return it to the estate, it is treated as a prepayment of some or all of the recipient’s inheritance. It reduces the amount the heir would have otherwise received. The transfer may have been made in fee simple to the recipient or in p. 129the form of a nonprobate transfer, such as through a gift of a joint tenancy interest, or through being named the beneficiary of a life insurance policy.
.
By contrast, a loan from the decedent, if not repaid during the decedent’s life, is an asset of the decedent’s estate. Like any other property of the estate, the personal representative should take possession of the note, seek payment from the debtor, and distribute that payment/asset to the appropriate heir(s). This is the characterization least favorable to the recipient of the funds because the recipient must p.ay back the money.
.
A gift is an absolute and unconditional transfer, which need not be repaid and does not diminish the donee’s share of her inheritance from the estate. This characterization of the transfer is the one most favorable to the recipient.
.
“Representation” means that a descendant has died and left surviving descendants to “step up” and represent them in the distributional scheme
.
“Per stirpes” means per bloodlines or per roots or stocks. “Per capita” means per head or per person.
.
UPC §2-103. Share of Heirs Other than Surviving Spouse.
(a) Any part of the intestate estate not passing to a decedent’s surviving spouse under Section 2-102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals who survive the decedent:
(1) to the decedent’s descendants by representation[.]
.
