Inheritance

Question 1

What are the common intestacy rules if the decedent is survived by their spouse?

Answer 1

1. If survived by spouse by not by issue or parent then spouse takes the entirety of the estate;
2. If survived by spouse and issue all of whom are also issue of the spouse, then spouse takes the entire estate (the thought being that she will share with them);
3. If survived by spouse and issue at least one of whom is not issue of spouse, the spouse is commonly given a fixed amount off the top and a fraction of any excess. Then the remainder to the issue.

Question 2

What are the common intestacy rules if there is no spouse?

Answer 2

1. All to issue, if any (children and grandchildren);
2. If no issue, to parents or survivor parent;
3. If no issue or parents, to parents issue (brothers and sisters of decedent).

Question 3

What is the probate estate?

Answer 3

The intestacy statute applies only to the probate estate. This is the estate that could have been controlled by a will had T executed one. It 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.

Question 4

Hypo: Frank gets Maude pregnant. After the child, Cliff, is born, Frank and Maude go their separate ways. Thereafter, Maude marries Steve; Steve does not adopt Cliff.

1. If Maude dies intestate, can Cliff inherit from Maude?
2. If Frank dies intestate, can Cliff inherit from Frank?
3. If Steve dies intestate, can Cliff inherit from Steve?

Answer 4

1. Yes. Children, even born out of wedlock, are presumed to be the mothers child.
2. No, unless (a) Frank marries Maude; or (2) adjudication of paternity before or after Frank’s death.
3. No unless adoption by estoppel, which means Steve agreed to adopt Cliff but then never did.

Question 5

What is the Simultaneous Death Act?

Answer 5

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

Question 6

Hypo: Rancher and Lulu, involved in auto accident in which Rancher is killed instantly. Lulu survived for three days, then died. Racher died intestate. Is Lulu an heir for purposes of intestate distribution?

Answer 6

Common law: Yes because evidence establishes that Lulu survived Rancher.
UPC: No because of the 120 hours rule which requires that when property depends on priority of death, absent a provision otherwise, a person is deemed to have predeceased the decedent unless the person survives the decedent by 120 hours or 5 days.

Question 7

Hypo: H, a widower, gives his daughter A land worth $12,000 on A’s birthday and tells his other two kids (B and C) that they will receive similar gifts when they reach twenty-five. H dies before the other gifts are made. H dies intestate leaving an estate worth $78,000. At H’s death A’s land is worth $15,000. How should H’s estate be distributed?

Answer 7

Common Law/ Minority Rule: Any lifetime gift to a child or decedeants presumed to be an advancement of his intestate share, to be taken into account in distribution of the intestate’s estate. Therefore, 78K + 12K = 90K/3. So, all three get 30K, except A only gets 18K because she had 12 paid in advance.

UPC/ Majority: No advancement unless (i) declared as such in a contemporaneous writing by the decedent; or (ii) acknowledged as such in writing by the heir.

Question 8

What is the doctrine of advancements testate estate equivalent?

Answer 8

The doctrine of satisfaction. A lifetime gift is not a prepayment of any interest under a will unless:

(i) the will provides for this treatment,
(ii) the testator declares in contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction of the devise; or
(iii) the devisee acknowledges in writing that the gift is in satisfaction.