Intestate Succession

Question 1

Intestate Succession: GR

Answer 1

Divides per capita (equally) with right of representation. This means look to the first generation with living issue and divide at that generation, with equal shares for all living and all deceased who leave issue.

“Right of representation” means the issue of the deceased parent from that generation stand in the parent’s shoes.

Per stirpes (not CA): divide at the first generation, with equal shares for each living issue (if any) + any deceased issue who leaves issue

Question 2

Intestate Succession: Order

Answer 2

1. Spouse
2. Issue
3. Parents
4. Issue of Parents
5. Grandparents, then their issue
6. Step-Children
7. Next of Kin
8. Parents of Deceased Spouse
9. Escheat

Question 3

Intestate Succession: Separate Property: surviving spouse takes

Answer 3

• 1/3 if more than one child (or issue of child)
• 1/2 if 1 child or issue of child, or parent, or issue of parent
• All, if neither condition (above) applies (but note that an omitted spouse never takes all SP - it’s capped at 1/2 by statute)

Question 4

Intestate Succession: Advancement

Answer 4

• intervivos gift with T’s intent for it to represent intestate share (so this is the intestate equivalent of satisfaction)
• California requires a writing:
  
  • by T (contemporaneous); OR
  • acknowledged as such by heir

-hotchpot: add all shares and divide by number of takers

Question 5

Intestate Succession: Simultaneous Death

Answer 5

For intestate succession, when passage of title to property depends on priority of death and there is insufficient evidence (clear and convincing evidence) that persons have died other than simultaneously, property of each person passes as if he survived (i.e. under the 120-hour rule, you must survive by 120 hours or be treated as predeceased for intestate succession purposes

Question 6

Simultaneous Death: 120-Hour Rule

Answer 6

• you must survive by 120 hours or be treated as predeceased for intestate succession purposes
• CP will be evenly divided among spouses’ heirs in cases where spouses die within 120 hours of each other
• Note: does not apply to a will - if there’s a will, law will assume that the devisee predeceased the testator (the 120-hour rule does not apply)