Intestacy

Question 1

What is total intestacy?

Answer 1

When decedent dies without a properly executed will

Question 2

What is partial intestacy?

Answer 2

When decedent dies with a will that doesn’t dispose of all of decedent’s property

Question 3

What is a surviving spouse’s intestate share?

Answer 3

The portion of decedent’s estate that a surviving spouse takes depends on who else survives the decedent:

1. no other surviving descendants or parents: spouse takes everything
2. surviving descendants are all the children of both spouse and decedent: spouse takes everything
3. no surviving descendants but decedent’s parents survive: spouse takes first $300,000 plus three-quarters of balance of intestate estate
4. surviving descendants of decedent and step-children of descendant: surviving spouse takes first $225,000 plus one-half of the balance of the intestate estate, with the remaining one-half minus $225,000 split among the decedent’s descendants
5. surviving descendants of decedent who are step-children of the spouse: spouse takes first $150,000 plus one half of the balance of the intestate estate

Question 4

What does surviving spouse take if there are no surviving descendants or parents?

Answer 4

Surviving spouse takes entire estate

Question 5

What does surviving spouse take if there are descendants of both decedent and surviving spouse?

Answer 5

Surviving spouse takes entire estate

Question 6

What does surviving spouse take if the decedent’s parents survive?

Answer 6

Spouse takes first $300,000 plus 75% of the balance of the estate

Question 7

What does surviving spouse take if there are descendants of the decedent and surviving step-children of the decedent?

Answer 7

Surviving spouse takes $225,000 plus one-half the remainder of the estate, with the other one-half remainder evenly divided among decedent’s children

Question 8

What does surviving spouse take if there are descendants of the decedent who are step-children of the surviving spouse?

Answer 8

The surviving spouse gets $150,000 plus one half of the balance of the remainder of the estate

Question 9

How do descendants take under intestacy when there is no surviving spouse?

Answer 9

1. per stirpes (minority)
2. modern per stirpes (majority)
3. per capita by representation at each generation (UPC)

Question 10

What is UPC approach to adopted children?

Answer 10

The UPC follows the transplantation theory such that the adopted child loses any relationship with natural parents and is treated as the natural-born child of the adopted parents

Question 11

What rights does adopted child have regarding inheriting from and through adopted parents and relatives?

Answer 11

An adopted child has full rights to inherit from and through their adoptive parents and their relatives

Question 12

What is advancement?

Answer 12

Under advancement, an inter vivos gift from decedent to an heir is treated as an advancement against the intestate portion of their estate if:
1. stated in a writing by the decedent that is contemporaneous with the decedent’s gift
2. acknowledged in a writing at any time by the heir as an advancement

Question 13

What is effect of advancement on heir’s share of estate?

Answer 13

Property given as an advancement is reduced from the heir’s intestate share