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Trusts + Estates > Intestate Succession > Flashcards

Intestate Succession Flashcards

1
Q

How many Americans die without a will?

A

1/2

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2
Q

Who gets the property if there is no will?

A
  1. No one
  2. Escheat to the state
  3. List of recipients handed out by the state
  4. Hearings to determine the intent of the dead
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3
Q

Determinative Order

A
  1. Spouse (2-102)
  2. Issue (2-103(C))
  3. Parent (2-103(d))
  4. Issue of Parent (2-103(e/f))
  5. Grandparents (2-103(g))
  6. Step-descendants (2-103(j))
  7. State (2-105)
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4
Q

Why pass to family first?

A

Want relatives to succeed the decedent’s assets, they are the natural object to the decedent’s bounty

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5
Q

Why does giving the choice of who succeeds important?

A

If we write the rules to guess what the decedent wants, they will waste less time writing wills and

giving to the closest relative will make law seem fair

might reduce theft

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6
Q

Community Property States

A

LA, TX, NM, AZ, CA, NV, ID, WA, WI

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7
Q

Community property definition

A

Earnings from labor during the marriage + earnings from community property, can include other income during the marriage

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8
Q

How is the property communal

A

Both of the spouses, even if just one name is on the title

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9
Q

When spouse dies in CPS

A

(1) alive spouse’s half of the community property and the surviving spouse’s separate property are kept by the surviving spouse

(2) decedent’s half passes under the will

(3) NO WILL?
(a) Passes to surviving spouse (CA) - COMMUNITY PROPERTY
(b) Surivivng spouse + others (TX) in a way similar that happens in NCPS - SEPARATE PROPERTY

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10
Q

Noncommunity property states

A

If the decedent is intestate, the surviving spouse takes a share of the decedent’s estate

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11
Q

Dower

A

Common law idea, LE in 1/3 of the lands which the decedent was seized during the marriage of an inheritable estate (few today)

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12
Q

Traditional Statutory Rule in NCPS

A

1/3 or 1/2 of the probate estate to the spouse

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13
Q

If D leaves issue, and if D + S have all the same issue, OR if D leaves no parent or issue

A

S takes all

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14
Q

If D leaves no issue but leaves a parent, the parent takes:

A

1/4 of the amount above $300K

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15
Q

If D is survived by spouse and siblings,

A

Sibling takes NONE

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16
Q

If one or more of the decendent’s surviving descendants are not descendants of the surviving spouse -

A

Spouse gets $150K plus 1/2 of the rest, giving the smallest portion to the spouse

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17
Q

O has a child, A, by mate X. When A is two years old, O and S marry. They have children, B and C. When A is 11, O dies leaving an intestate estate of $426,000 (after allowances and
creditors)

A

Spouse: 150K + 1/2 of $276K = $288K
Kids: $46K each
protect the stepkids**

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18
Q

If all of the decedent’s surviving descendants are also
descendants of the surviving spouse and the surviving
spouse has one or more surviving descendants who are not descendants of the decedent

A

Spouse gets $225K plus 1/2 of the rest

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19
Q

UPC 2-102(4) assumes

A

the survivor might be like Cinderella’s mom, and the law should help the decedent reduce that favoritism

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20
Q

What happens to the portion of the decedent’s estate that does not pass to the spouse under UPC 2-102?

A

The next in line are the issue (2-103(c))

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21
Q

If one descendant in a generation of takers is predeceased, leaving an issue?

A

The issue takes place of the predeceased descendant

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22
Q

If 2 of D’s issue in the same generation predecease D and leave issue, the result varies by state (4 options)

A
  1. Strict per stirpes
  2. Modern per stirpes
  3. 1969 UPC
  4. 1990 UPC
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23
Q

Classic (Strict) Per Stirpes

A

Starting with the decedent’s children, divide by the stocks (counting living and dead with living descendants); do the same at each generation

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24
Q

Modern (Modified) Per Stirpes

A

Starting at the oldest generation in which a descendent of the decedent is alive, distribute per stirpes (a court might read “per stirpes” this way)

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25
Q

1969 UPC

A

Per capita with per capita representation: skip any generation without living descendants, then distribute to living roots and from any deceased roots by representation as if each root were a decedent

26
Q

1990 UPC

A

Per capita at each generation (redefining representation), skip any generation without living descendants, distribute to living roots, at every generation collect the shares of deceased roots (those died before the decedent) and drop the bundle to all of their issue

27
Q

If no issue, parent, or spouse

A

Pass by representative to issue of parents

28
Q

No issue, spouse, parent, descendants of parents

A

pass to the grandparents and the issue of grandparents in the same manner as to parents and their issue

29
Q

No spouse, grandparents/descendants

A

pass by representative to issue of deceased spouses of decedent (i.e. step kids - but many stakes do not allow)

30
Q

Disclaimants share in the per stirpes web

A

Dropped down as if they were dead to their issue, cannot be manipulated others (can in some states)

31
Q

Laughing heir

A

Heirs who take but do not know the decedent

32
Q

Who is a child under the UPC?

A

UPC does not allow for stepkids to be considered

33
Q

Hall v. Hall

A

Termination of parental rights means that the child cannot inherit

Child not defined by WV legislation

34
Q

UPC 2-114

A

Bars bad parents from taking from their children (parent rights were terminated, child died before 18, parental rights could have been terminated non-support, abuse, neglect, other actions/inactions)

35
Q

UPC 2-119

A

Parent-child relationship does NOT exist between adoptee + the individual who was adoptee’s parent before adoption UNLESS
1. Otherwise provided by court order or law
2. Adoption was: by spouse of parent before adoption, was by a relative or spouse or surviving spouse of relative of parent before adoption

36
Q

There is a parental-child relationship when:

A

the child and the person’s de facto parent have been adjudicated (any age child)

37
Q

Hall v. Vallandingham

A

An adopted person does not have the right to inherit from the estate of a natural parent who dies intestate, nor the right to inherit through that natural parent by way of representation

38
Q

In re Gallegos

A

A parent-child relationship exists between both genetic parents and an individual who is adopted by a relative of a genetic parent… but only for the purpose of the right of the adoptee or a descendent of the adoptee to inherit from or through either genetic parent”

39
Q

O’Neal v. Wilkes

A

Georgia 1994 - No legal contract because the parties to the contract had no authority to execute the contract regarding the adoption of Hattie

Hattie performed, but it did not matter because there was no legal authority to the contract

40
Q

Equitable or Virtual Adoption

A

recognized by many states

allows courts to find adoption where the adoption formalities were not completed

Child can be an heir, devisee of class gift to children, heir of the family

Parent cannot inherit from them

41
Q

Dehart v. Dehart

A

No contract required: only intent and consistent action showing intent is enough in equitable adoption

42
Q

Born out Wedlock

A

Common Law: no one

UPC 2-117: parent-child relationship extends equally to every child + parent REGARDLESS of marital status of parents

43
Q

What some states require of fathers

A

Father acknowledges the child
Father married the mother
Child proved paternity during father’s life; or
Child proved paternity by clear and convincing evidence after father’s death

44
Q

Astrue v. Capato

A

Twins born 18 months after the decedent passed
Florida 1994 – children were NOT children of the decedent under the law
The semen was NOT yet transferred to the mother
Potential title transfer conflict

45
Q

UPA 708: Parental Status of Deceased Individuals

A

if an individual INTENDS TO BE A PARENT of a child convinced by assisted reproduction DIES during the PERIOD BETWEEN THE TRANSFER OF THE GAMETE AND BIRTH, the individual’s death does not preclude the establishment of parentage if the individual would parent the child

REQUIRES: Tranfer, then death, then birth of child

Consent in record that includes what would happen if the parent died in before the death and the intent was clear by C+C evidence

46
Q

UPA 708 Length of Time/UPC 2-104(b)(3)

A

Embryo must be used no longer than 36 months after death or no later than 45 months born after death to inherit

47
Q

Astrue v. Capato

A

In FL, twins cannot inherit from dad because they were born 18 months after the father passed away

UPC 2008 - YES

UPC 2019 - maybe

48
Q

Why limit a time for birth?

A

1) interest in finality

2) Intent of decedent could be different for those born sooner than later

49
Q

Social Security is

A

a system of social insurance, not a savings account

50
Q

Problems with Nearly Simultaneous Deaths

A

1) Issue with who takes next
2) Determining key facts can be costly

51
Q

Janus v. Tarasewicz

A

Both husband and wife died from poisoning

Under the Uniform Simultaneous Death Act, the party whose claim to the decedent’s assets or insurance must prove this by a C+C evidence there was outlasting by 120 hours

52
Q

The evidentiary standard for nearly simultaneous deaths

A

Clear and convincing

53
Q

Negative wills

A

Common law: no effect, pass through normal intestacy
UPC 2-101: act like disclaim, accept the negative will

54
Q

Advancement

A

gift by the decedent during life that reduces an heir’s intestate share at death

55
Q

According to UPC 2-109, who can be charged with an advancement?

A

Heirs (including next of kin) —– those who can take in intestate succession

States have more narrow rules

56
Q

Does advancement with partial intestacy work?

A

Common law: No

UPC: yes

57
Q

What is the rebuttable presumption regarding that the decedent’s intent as to whether a gift is or is NOT an advancement?

A

Common law: gift, during life, to those who qualify is an advancement (only in total intestacy)

UPC 2-109: presume no advancement, unless there is evidence there is (writing)

58
Q

Hotchpot

A

Common law method of determining the distribution where there is an advancement

59
Q

How does hotchpot work?

A

advancements are added to the probate estate to make up the hotchpot estate, then it is divided according to the rules of intestate succession

60
Q

O dies intestate, leaving $50,000, and is survived by 3 children, A, B, and C. With writings to show O’s intent, A had been given $34,000 as an advancement and B had been given $6,000 as an advancement. If B chooses hotchpot, what do A, B, and C end up with?

A

$56K in hotchpot, divided between B + C at 28K each. If A is included there would be $90K in hotchpot, and then it would be divided as 30K each

61
Q

Possible bias in the advancement

A

1) Deviation by birth order
2) Deviation based on sex

Trusts + Estates (14 decks)

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