Intestacy

Question 1

What does a spouse get if the decedent had no children?

Answer 1

Everything

Question 2

What does a spouse get if the decedent had children, but all with the surviving spouse?

Answer 2

Everything

Question 3

What does a spouse get if the decedent had no children, but the decedent’s parents are alive? Do the parents get anything; if so, what?

Answer 3

Spouse gets the first $300,000 and 3/4 of anything above the $300,000; spouse will also get the house owned by decedent and spouse together (it will pass outside of probate). The parents of the decedent get 1/4 of anything above the $300,000 (if the surviving parents are divorced, they split the 1/4)

Question 4

What does a spouse get if the surviving spouse had children from another marriage but the decedent did not?

Answer 4

Spouse gets the first $225,000 and 1/2 of anything above the $225,000

Question 5

What does a spouse get when the decedent had children from another marriage?

Answer 5

Spouse gets the first $150,000, plus 1/2 of anything above that $150,000

Question 6

What happens when the spouses die at the same time? When does this rule not apply?

Answer 6

An individual who is not established by clear and convincing evidence to have survived the other by 120 hours (5 days) is deemed to have predeceased the other; a spouse cannot inherit from the other spouse unless that spouse survived them by 5 days. This rule does not apply if its application would result in a taking of an intestate estate by the state

Question 7

What happens if a decedent had no spouse and all of his children were alive at the time of his death?

Answer 7

The children split the decedent’s estate equally

Question 8

What happens if all of the decedent’s children predecease him and he has no spouse?

Answer 8

The decedent’s grandchildren step into the shoes of their parents (the deceased children) and take their shares

Question 9

What if a child predeceases a decedent and the jurisdiction follows the English Per Stirpes rule?

Answer 9

Each living branch of the family takes the same amount; there is one share for each surviving child and one share for each deceased child with surviving descendants. Each child gets one share and the share of the deceased child is split between the child’s descendants

Question 10

What if a child predeceases a decedent and the jurisdiction follows the Modern Per Stirpes rule?

Answer 10

Cut the decedent’s estate into shares at the nearest generation with descendants who survive the decedent; if all of the decedent’s children are dead, all of the decedent’s estate is divided evenly between the grandchildren. If one of the decedent’s children is alive, we use English Per Stirpes

Question 11

What if a child predeceases a decedent and the jurisdiction follows the UPC/Per capita at each generation rule?

Answer 11

Everyone in a like generation gets a like amount; the initial division is made at the first generation with a living descendant - one share is for the living children and one share for the dead children with descendants. Shares of the deceased are put back into a “pot” and split evenly among the younger generation (children of people in the older generation who got money get nothing)

Question 12

Who do adopted children inherit from in a UPC jurisdiction? Are there exceptions to this rule?

Answer 12

Adopted children inherit from their adopted parents; they cannot adopt from their biological family. Exceptions to this rule include: (1) a child adopted by the spouse of his biological parent; (2) a child adopted by a genetic relative of his biological parent; (3) a child adopted after the death of both of his biological parents

Question 13

How does the UPC treat adopted adults under intestacy?

Answer 13

The UPC treats adopted adults as natural children, but does not allow adopted adults to benefit from class gifts set up by anyone other than the adopted parent. Further, adopted adults will not inherit if the adult was only adopted to bring him under a preexisting testamentary instrument

Question 14

Who do nonmarital children inherit from under intestacy?

Answer 14

Nonmarital children can always inherit from their biological mothers, but states may limit the child’s inheritance from the biological father

Question 15

Can posthumously conceived children inherit from the decedent under intestacy?

Answer 15

Yes, but the decedent must consent to the posthumous reproduction in a record

Question 16

Who does a child that is the product of a surrogacy inherit from under intestacy?

Answer 16

There is a jurisdictional split: some courts uphold the genetic relationship between the surrogate and the child; some courts look to the intent of the parties as demonstrated by the surrogacy contract

Question 17

Who inherits under intestacy if a decedent has no living spouse or children with descendants?

Answer 17

The decedent’s parents take next (if both are alive, they split the share equally)

Question 18

Who inherits under intestacy if the decedent has no living spouse, children or their descendants, or parent?

Answer 18

Decedent’s siblings or their descendants (if siblings predeceased the decedent) will split the estate

Question 19

Who inherits from the decedent under intestacy if the decedent doesn’t have any living spouses, children or their descendants, parents, siblings, nieces, or nephews in a UPC jurisdiction?

Answer 19

The UPC uses the parentelic system, which means the decedent’s estate is split between the maternal and paternal grandparents (or their descendants: uncles, aunts, cousins)

Question 20

What is an advancement?

Answer 20

Any gift by the decedent to a child was presumed to be a prepayment of the child’s intestate share of the decedent’s estate

Question 21

Are gifts presumed to be advancements under the UPC?

Answer 21

No, a gift is presumed not to be an advancement under the UPC unless the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement

Question 22

How does intestacy deal with gifts that are treated as advancements?

Answer 22

If a gift is treated as an advancement, it is accounted for in distributing the decedent’s estate by bringing it into a hotchpot. The value of the advancement sticks when the gift is given. The net estate is divided into shares determined by intestacy law. Then you subtract the value of the advancement from the relative that received it