intestate succession Flashcards
(28 cards)
What is COMPETE INTESTACY?
No will at all
Refers to a situation where a person dies without any will.
What is PARTIAL INTESTACY?
Some things are outlined in a will not everything
Occurs when a will exists but does not cover all assets.
What is a residuary clause?
A clause that sweeps up everything else, includes what is acquired later after the will
Prevents intestacy by specifying the distribution of remaining assets.
What are the tiers of intestate succession?
- Spouses
- Descendants/issue (children, grandkids, great grandkids)
- Ancestors (parents, siblings, collaterals)
- Escheat (property reverts to the state)
depends on stautue, some stop after children
This structure reflects the law’s assumption of a testator’s wishes.
What is the purpose of intestacy statutes?
Promotes economic health of the decedent’s family
Aims to provide for surviving relatives according to presumed wishes.
UPC 2-102 What happens if a decedent’s estate has no alive parents and no children outside the marriage?
Entire estate goes to the spouse
What is the split second rule in common law?
To survive someone was based on a split second
If it’s unclear who died first, both are treated as predeceased. (Common Law)
How does the UPC define survivorship w simultaneous death?
An heir who fails to survive by 120 hours is deemed to have predeceased the decedent
irrespective of cause of death
This rule simplifies inheritance in cases of simultaneous death.
What is a survival clause?
A provision in a will that sets a specific time for survival
Commonly set as 5 days, 30 days, or 6 months.
What are descendants entitled to under intestacy statutes?
All of an intestate decedent’s probate assets that do not pass to the surviving spouse
Descendants inherit the remainder after the spouse’s share.
What does ‘taking by representation’ mean?
Children take the remainder of the decedent’s property if a child has died before the decedent
Grandchildren step into the shoes of their deceased parent.
What is the parentellic system?
-Majority/UPC Rule. Intestate estate passes to grandparents and descendants, and if none to great-grandparents and their descendants, and if none to great-great-grandparents and their descendants, and so on down each parentela until an heir is found. o
Goes up to grandparents and straight down consanguinity line. Know generally, not to apply
This system is used when there are no direct descendants.
What is the degree/relation system?
intestate estate passes to closest of kin, counting degrees of kinship. To ascertain degree of relationship of decedent to claimant, count steps (counting one for each generation) up from the decedent to nearest common ancestor, and then count steps down from common ancestor to claimant. The total number of steps is the degree of relationship
lower number wins
The heir with the smallest number is awarded the estate.
What did UPC 2-101 change regarding disinheritance?
Authorizes writing a person out of a will
Previously, it was not legally permissible to explicitly exclude someone.
What happens under spousal share (UPC 2-102 ) if a decedent has children of the same marragie and a spouse?
spouse gets the entire share
UPC intestact (2-102(c)): no kids but decedents parents alive
o spouse gets first 300K, + ¾ of intestate balance
2-102(d) if there all of the decedents kids are shared, & there is one or more step kids (outside marriage not related to decedent)
first 225,000 to wife + ½ of the state balance
2-102(e) if one or more is a kid related to the decedents and not the spouse,
150,000 + 1/2 of estate blance
MA degree of relationship with parantillic tie breaker
Count relationships using consanguinity table. However closer “parentela” collects if there is a tie
sufficent evidence (Simultaneous death)
Presumption that each person predeceased other unless there is sufficient evidence of order of death.
If insured and 3d party beneficiary die together,(ie car crash) proceeds are distributed as if they died in a sequence where insured survived beneficiary
representation systems
- engligsh per Stirpes
*Modern Per Stirpes - Per Capita at each Generation
English Per Stirpes
initial division made at first generation where 1+ descendents are alive (frist taker). The shares of deceased are treated as one pot and divided equally among reps of next gen.
vertical equality
Modern Per Stirpes
- Look at whether any children survive the decedent. If any do, divide property along English per stirpes. If not, go to step 2
- If no surviving children, go to the first generation with living takers (aka surviving descendents) and begin division there.
Per Capita at Each Generation
initial division made at first generation where 1+ descendents are alive (like modern per stirpes) but shares of deceased are treated as one pot and divided equally among reps of next gen.
