Intestacy

Question 1

What is the applicable law for personal property?

Answer 1

The law of the domicile at the deceased’s death

Question 2

What is the applicable law with respect to real property?

Answer 2

The law of situs/location

Question 3

With regard to a surviving spouse under the COMMON LAW intestacy rules, How is that spouse treated?

Answer 3

Spouse = not an heir

Question 4

Under the common law approach for a surviving spouse (intestacy rules), does the widow get a dower, and if so how much?

Answer 4

Dower permitted

Widow gets 1/3 of husband’s property owned during marriage

Question 5

Under the modern law approach for intestacy rules what does the surviving spouse get?

Answer 5

Dower and courtesy are eliminated and the share of the surviving spouse depends on various factors (E.G.children)

Question 6

Under the MODERN LAW approach for intestacy rules, is the surviving spouse treated as an heir?

Answer 6

Yes

Question 7

What are the names of the three methods of computing shares amongst decedents?

Answer 7

1. Per stirpes
2. Per capita representation (majority approach)
3. Per capita at each generation (modern trend)

Question 8

Under the per stirpes rule, what do surviving children inherit?

Answer 8

Divide the shares equally at the first generation of children (even if no survivors). Their share will then pass equally to surviving decedents.

Question 9

How do you divide shares between children/grandchildren under the per capita with representation model?

Answer 9

Divide into shares at the first generation with survivors.

If all children are deceased and all property goes to the grandchildren, each grandchild takes an equal share rather than dividing the share that their parent would have taken had the parents survived.

Question 10

Under which legal code is the per capita at each generation model adopted?

Answer 10

The uniform probate code

Question 11

For distribution of shares under the per capita at each generation model, how would an estate be divided?

Answer 11

Firstly, you divide the intestates property into shares at the first generation were survivors. But then you give each generation below an equal share (so you pool the remaining property thereafter to give to grandchildren)

Question 12

For a person that dies intestate, if there are no descendants that are still alive, property not passing to the surviving spouse goes to whom?

Answer 12

Ancestors in the following order:

• if both parent are alive they get 1/2
• if only one parent survives, some states give all to them; some give 1/2 to them and the other 1/2 to first generation collaterals
• then if no parents survive, to siblings (of their decedents)
• grandparents
• more distant relatives
• State government

Question 13

Does an adoptive parent take from their adopted child under intestacy rules?

Answer 13

Yes

Question 14

Does the biological parent take from their adopted child under intestacy rules?

Answer 14

No

Question 15

Does an adopted child inherit from their adopted parents?

Answer 15

Yes

Question 16

Does an adopted child inherit from their biological parents?

Answer 16

Generally no

Question 17

What is equitable adoption?

Answer 17

Conduct of parent/child makes it seem like they were formally adopted, even though it never officially happened.

In this instance, usually child can inherit from adoptive parent, but parent who didn’t formalise adoption cannot inherit from child

Question 18

Are step-children included in intestate distributions?

Answer 18

Generally not

Question 19

What are the rules for half blooded heirs inheriting?

Answer 19

• Some states treat them same as full blood siblings
• some stages provide they get half as much
• some states say they don’t inherit at all

Question 20

Does a posthumous child inherit?

Answer 20

States vary on whether a child born after the parent dies will be able to inherit.

Question 21

What is the effect of a slayer statute?

Answer 21

If an heir murders the deceased, they cannot take under intestacy rules.

Question 22

If a pair own priority as joint tenants with rights or survivorship and person A murders the other, will they inherit the property?

Answer 22

No, the victim’s 1/2 share will pass under the will or by intestacy as though the killer predeceases her. However, the killer does not forfeit their own interest, but hold it as a tenant in common with the victim’s estate.

Question 23

If a parent fails to support a child, what might they be?

Answer 23

An unworthy heir who will not inherit through intestacy

Question 24

If an heir abused the deceased, will they be an unworthy heir?

Answer 24

Some states limit their right to inherit under intestacy rules in these circumstances

Question 25

What is an advancement?

Answer 25

An irrevocable gift intended by the donor as preparing of inheritance

Question 26

What proof do you need to show an advancement (minority and majority rule)?

Answer 26

Majority = writing signed by the donor or donee Minority = oral proof

Question 27

What is the effect of the deceased making an advancement?

Answer 27

The advancee has to account for the gift if they want a share in the estate (known as going into hotchpot)

Question 28

What is the rule of survival under the Uniform Simultaneous Death Act?

Answer 28

When any disposition of property (by will, intestate, JT etc.) depends on the order of death AND the order cannot be established, the property is disposed of as if one survived the other.

Question 29

Will the Uniform Simultaneous Death Act apply where there is evidence of a person surviving another (even by a few minutes)?

Answer 29

No, where there is evidence, the USDA doesn’t apply

Question 30

What is the rule of survival under the Uniform Probate Code?

Answer 30

A person must survive the deceased by 120hrs in order to take any distribution.

Question 31

Can an heir disclaim their property and if so how?

Answer 31

Yes, an heir may disclaim by - making a writing - which they sign - file with a notary - filed with the court within 9 months from the testa tor’s death.

Question 32

If you accept property under intestacy rules, but then change your mind, can you still disclaim it?

Answer 32

No, once accepted property cannot be disclaimed

Question 33

If a beneficiary disclaims property, what is the effect?

Answer 33

The property passes as if you predeceased the testator and you cannot chose to whom the property is passed.

Question 34

Is a negative will or an express disinheritence clause effective in most states?

Answer 34

Common Law rule = ineffective if the testator dies all or partially intestate. The will just dispose of all property for the clause to be effective. Intent of the T is irrelevant. UPC = effective (even through intestacy)