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Flashcards in Inheritance Deck (15):

If decedent is survived by spouse but not by issue or parent,

the surviving spouse gets entire estate


If decedent is survived by spouse and issue all of whom are also issue of spouse,

surviving spouse gets entire estate


If decedent is survived by spouse and issue at least one of whom is not issue of spouse,

the surviving spouse is commonly given a fixed amount off the top and a fraction of any excess.


Share not going to surviving spouse (or all of estate if no spouse):

1) all to issue, if any
2) if no issue, to parents or survivor
3) if no issue or parents, to parents' issue (decedent's siblings)


Intestate Divisions

Majority rule: per capita - issue take equally if all are of the same degree of relationship, otherwise they take by representation
UPC and modern trend: per capita at each generation level (second generation level's shares are combined into a single pot and divided equally)
A few states: strict per stirpes

All methods of same result for first generational level. Distribution is different once move past first generation.


Probate estate

The estate that could have been controlled by a will had T executed one. Intestacy statutes apply only to the probate estate. PE does not include:

life insurance, property held in trust, right of survivorship property, securities or bank accounts registered in payable on death or transfer on death form or property T did not own at death


Intestate Shares for Illegitimate Children

1) can always inherit from mother
2) can only inherit from father if father and mother marry OR adjudication of paternity before or after father's death
3) cannot inherit from stepparent unless there is adoption or adoption by estoppel (where stepparent promised to adopt child but failed to do so)


Intestate Shares for Adopted Children

1) can inherit from adoptive parents
2) cannot inherit from birth parents
3) if adopted child dies intestate, adoptive parents can inherit from him


Stepparent Adoption under the UPC

Child can inherit from all parents when adopted by a stepparent (W marries H1 and has a child, C. H1 dies and W marries H2 who adopts C. C continues to inherit from H1's family, and can inherit from H2)


Orphan Adoption under UPC

If both natural parents die and child is adopted by close family member. Child can continue to inherit from other family members.


Simultaneous Death Act

When passage of title to property depends on priority of death and there is insufficient evidence that the persons have died otherwise than simultaneous, absent a will provision to the contrary, the property of each passes as though he survived.


UPC 120 hour rule

When passage of title to property depends on priority of death, absent a provision in the governing instrument to the contrary, a person is deemed to have predeceased the decedent unless the person survives the decedent by 120 hours (5 days)


Common Law Advancement Rule

Any lifetime gift to a child or descendants presumed to be an advancement of his intestate share is to be taken into account in distribution of the intestate's estate

Applies to intestate estates


UPC Advancement Rule (Majority)

No advancement unless:
1) declared as such in a contemporaneous writing by the decedent, or
2) acknowledged as such in writing by the heir



Applies to testate estates.
UPC Majority Rule: a lifetime gift is not a prepayment of any interest under a will unless:
1) the will provides for this treatment,
2) the testator declares in contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction of the devise, or
3) the devise acknowledges in writing that the gift is in satisfaction