Rules of Intestacy Flashcards
(36 cards)
Testacy
Decedent leaves a will that provides for the disposition of property at death (also allows testator to select guardians for minor children and an executor for the estate)
Intestacy
Decedent leaves no will. The probate estate passes by intestacy
Partial Intestacy
Decedent leaves a will that disposes of only part of the probate estate; the part of the estate not disposed of by the will passes by intestacy
UPC:
S; no D; no P
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§2-102(1)(A) all S
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UPC:
S; D�
- §2-102(1)(B) all S only if all D are also S’s and S’s only kids
- §2-102(3) $225K + 1/2 S if D are also S’s but S has others; rest D
- §2-102(4) $150K + 1/2 S if one or more D is not S’s; rest D
UPC:
S; no D; P
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§2-102(2) $300K + 3/4 S; rest P
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UPC:
no S; D�
§2-103(a)(1) all D (per capita at each generation)
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UPC:
no S; no D; P
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§2-103(a)(2) all P
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UPC:
no S; no D; no P; B or S
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§2-103(a)(3) B or S (per capita at each generation)
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UPC:
no S; no D; no P; no B or S; G or GD
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§§2-103(a)(4) and (5) 1/2 paternal G; 1/2 maternal G or all to maternal or paternal if no survivors on other side – per capita at each generation
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UPC:
no S; no D; no P; no B or S; no G or GD
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-§2-103(b) stepchildren
-§2-105 escheat to state; therefore no “laughing heirs”; note: no great grandparents
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Indiana Comparison
-If no living parents or descendants, spouse receives entire estate under UPC and in IN
-If the decedent has living descendants only through the spouse, spouse still receives entire estate under UPC but first $25,000 plus half of the remaining estate in IN (with rest to descendants)
-If no living descendants but a living parent, spouse receives first $300,000 plus ¾ of the remainder under UPC or first $25,000 plus ¾ of the remainder under IN (with rest to parents)
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Indiana Comparison (continued)
- UPC and IN include grandparents and descendants of grandparents in their list of potential heirs (i.e., aunts and uncles and their descendants), but neither includes more distant relatives.
- UPC turns to step-children if the list of blood relatives is exhausted and the spouse is deceased (2-103(b)), but IN does not.
Indiana Comparison (continued)
-UPC reduces spouse’s share if either decedent or spouse has a child from a previous marriage (2-102(3)-(4))
-IN reduces spouse’s share if decedent had a child from a previous marriage, but only when the spouse and decedent had no children together (29-1-2-1(c))
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Uniform Simultaneous Death Act
- UPC §§ 2-104, 2-702 (1990, rev. 2008); �
- Claimant must establish survivorship by 120 hours (5 days) by clear and convincing evidence
English Per Stirpes
Vertical equality – each line of descent treated equally
Modern Per Stirpes
Each line of descent treated equally beginning at first generation with a living taker
1990 UPC Stirpes (Per Capital at each generation)
Horizontal equality – each taker at each generation treated equally (“equally near, equally dear”)
Adoption
- “On adoption, a child no longer shall be considered a child of either natural parent, except that upon adoption by the spouse of a natural parent, the child shall be considered the child of that natural parent” (current law)
- “Upon entry of a decree of adoption, the adopted child shall lose all rights of inheritance from its parents and from their natural collateral or lineal relatives” (prior law)
Adoption (UPC)
b) [Stepchild Adopted by Stepparent.] A parent-child relationship exists between an individual who is adopted by the spouse of either genetic parent and:
(1) the genetic parent whose spouse adopted the individual; and
(2) the other genetic parent, but only for the purpose of the right of the adoptee or a descendant of the adoptee to inherit from or through the other genetic parent.
UPC 2-119
�-Some states allow adopted children to inherit from both adoptive and genetic parents
If an adopted child can inherit through the genetic parent after being adopted by a step-parent, why can’t the genetic parent inherit through the adopted child? Why is it a one-way street?
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-Inheritance would become too complex if genetic relatives as well as adoptive relatives could inherit from or through the child;
-Is not clear that this is what the intestate decedent would want; and
-If adoption records are sealed, it may not be possible for the adopted child to prove who the genetic relatives are and vice versa.
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Adoption (Indiana)
For all purposes of intestate succession, including succession by, through, or from a person, both lineal and collateral, an adopted child shall be treated as a natural child of the child’s adopting parents, and the child shall cease to be treated as a child of the natural parents and of any previous adopting parents. However, if a natural parent of a child born in or out of wedlock marries the adopting parent, the adopted child shall inherit from the child’s natural parent as though the child had not been adopted, and from the child’s adoptive parent as though the child were the natural child. In addition, if a person who is related to a child within the sixth degree adopts such child, such child shall upon the occasion of each death in the child’s family have the right of inheritance through the child’s natural parents or adopting parents, whichever is greater in value in each case.
Ind. Code 29-1-2-8 (emphasis added)
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Adoption and Wills
Does an adopted child also step into your shoes as a genetic child for purposes of your share under someone else’s will (e.g., child adopts grandchild)?
Traditional trusts and estates law said no—testators who were “strangers-to-the-adoption” were not viewed as intending that the adopted children take
Current law includes a presumption that adopted children will be treated as genetic children. If testators do not want adopted children to be treated as genetic children, they need to say so (something to remember when advising clients whose wills you draft)
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Posthumously-born children
- If H dies, and W is pregnant, their posthumously-born child will be treated as a child for purposes of trusts and estates law
- The State requires certainty of the decedent’s paternity - not difficult to establish with posthumously-born children
- The usual limitations period is one year. (not fair for posthumously-conceived children)
