Intestate Distribution

Question 1

Types of intestacy

Answer 1

(1) total intestacy
(2) partial intestacy

Question 2

Total intestacy

Answer 2

Decedent dies without a properly executed will

Question 3

Partial intestacy

Answer 3

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

Question 4

Intestacy rules for surviving spouse

Answer 4

The portion of decedent’s estate that SS takes depends on who survives decedent

Question 5

Five scenarios in intestacy if surviving spouse

Answer 5

(1) no children or parents alive
(2) only children of SS + D (no step)
(3) no children, but parents of D or SS alive
(4) children + step-children of only SS
(5) children of D only

Question 6

Intestacy rule if SS only

Answer 6

No surviving descendants or parents → SS takes entire intestate estate

Question 7

Intestacy rule if SS + children only (no step)

Answer 7

Surviving descendants are the children of both SS and decedent (i.e., no stepchildren)
→ SS takes entire intestate estate

Question 8

Intestacy rule if SS + parents only

Answer 8

No surviving descendants but decedent’s parents survive → SS takes first $300,000 plus three-quarters of balance of intestate estate

Question 9

Intestacy rule if SS + children + stepchildren of only SS

Answer 9

Surviving descendants of decedent and also surviving step-children of decedent → SS takes first $225,000 plus one-half of balance of intestate estate

Remainder is split equally by decedent’s descendants

Question 10

Intestacy rule if SS + children of only D

Answer 10

Surviving descendants of decedent only → SS takes first $150,000 plus one half of balance of intestate estate

Question 11

If no SS or SS not entitled to take

Answer 11

If there is no SS or the SS is not entitled to a share in the estate, the descendants take by:

• Pure/strict per stirpes (least common now)
• Modern/modified per stirpes (most common now)
• Per capita by representation at each generation (UPC approach)

Question 12

Pure/strict per stirpes

Answer 12

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Question 13

Modern per stirpes

Answer 13

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Question 14

Per capita approach (UPC)

Answer 14

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Question 15

Treatment of adopted children under UPC

Answer 15

UPC follows a transplantation theory → an adopted child loses any relationship with natural parents and is treated as the natural-born child of the adoptive parents

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

Question 16

Advancement

Answer 16

Inter vivos gifts from decedent to an heir are treated as an advancement against the estate if:

(a) Stated in a contemporaneous writing by decedent (contemporaneous with gift), or
(b) Acknowledged in a writing at any time by the heir as an advancement

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