Intestacy Flashcards
(41 cards)
Why do around 70% of people not make wills?
- Don’t like thinking about death.
- Need a lawyer (mostly).
- Want to remain private.
- “I don’t have anything to leave anyway, so why should I?”
Reasons to make a will:
- Choose where stuff goes.
- Choose guardians of children.
- Get to name executor.
- Tax savings w/ good planning.
- Healthcare Decision making (durable PoA/healthcare PoA, and living wills [what you want to have happen to you])
- No will means your stuff falls to intestacy (government writes your will).
How is intestacy determined?
Most states try to carry out the desires of the average person.
- UPC also does this.
- MIN: take care of the elderly first, OR government takes everything period.
What happens when a will is present?
Probate is initiated in county where legal residence of dead person is AND somebody action on behalf of the decedent must come forward with the death certificate.
In what order do ASSETS fall to?
1) Non-probate assets.
2) Statutory Exemptions (homestead and dower)
3) Creditors
4) Taxes
5) Will Bénéficiaires
6) Intestate Succession
Intestacy: Spouses: Who gets first crack?
Spouses get first crack at estates.
Intestacy: Spouses: UPC generally.
UPC is generous to spouses because that is probably what most people would want.
Intestacy: Spouses: UPC (when no parents/kids left alive)
- Spouse gets the farm
- If the dead person has a common child with the spouse who is still alive, spouse still gets everything.
Intestacy: Spouses: UPC (1 parent alive)
Spouse gets first $300k + 3/4 of the rest of the $.
(If $400k left, spouse gets $300k +3/4 of $100k, so total gets $375k).
Intestacy: Spouses: UPC (common kids and spouse has one extra kid)
Spouse gets first $225k+1/2 the rest of the $.
(If $325k left, spouse gets $225k+1/2 $100k, so total gets $275k and kid gets $50k).
Intestacy: Spouses: UPC (kids alive but not born from spouse)
Spouse gets first $150k+1/2 the rest of the $.
(If $350k left, spouse gets $150k+1/2 $200km so total gets $250k if only 1 kid)
Intestacy: Spouses: UPC Issues
Kids can get cut out.
Are cohabitators treated the same as spouses?
No.
Definition of Death:
Stopping of heart or brain, death certificate, evidence of death.
Uniform Simultaneous Death Act
-The instant transfer of money between spouses does not happen if they die within 5 days of each other.
- There needs to be CLEAR AND CONVINCING evidence of simultaneous death.
- In a common accident, husband’s stuff to his family and wife’s stuff to hers.
Do wills make changes to simultaneous death?
Yes, wills change the simultaneous death clause to make 5 days a much longer period of time.
Intestacy: Children: Generally
If you die with no spouse your kids split your estate evenly. (Grandchildren don’t get an immediate cut due to administrative issues).
Intestacy: Children: If the child dies before decedent: English Per Stirpes
(EPS)
- Every branch of the family gets the same amount of $.
- (Branch=living child or dead child who has descendants)
Intestacy: Children: If the child dies before decedent: Modern Per Stirpes
(MPS) (what AR has)
-If all kids are dead, it is divided evenly between grandchildren.
-( OR the first generation where someone is alive)
Intestacy: Children: If the child dies before decedent: Differences in each Per Stirpes
Main difference is WHERE THE BRANCHES BEGIN.
Intestacy: Children: If the child dies before decedent: UPC
-Everyone in a like generation gets a like amount.
- Combination of EPS and MPS.
Intestacy: No Spouse or Children:
- Parents split the estate.
Intestacy: No Spouse or Children or parents:
Siblings get the estate.
Intestacy: No Spouse or Children or parents our siblings:
Nieces and nephews move into the shoes of their parents for the estate.
