Flashcards in Wills Deck (142)
What is intestate succession?
A fixed set of rules that govern where property goes upon death based on the degree of relationship.
What are examples of non-probate property (filter them out from the question)?
There are three principal categories of nonprobate assets: (i) property passing by contract, (ii) property passing by right of survivorship, and (iii) property held in trust.
1. Inter vivos outright gifts (already gave away property)
2. Inter vivos trusts (property has already transfered)
3. Future interests (already transfered at date of deed)
4. Co-ownership of property (tenancy in common passes through to probate, but joint tenancy does not)
5. "Pay on death" property
6. Contracts (provides benefits payable on death to named beneficiary, e.g. pension, retirement, life insurance)
What is total intestacy?
Decedent dies without valid will
What is partial intestacy?
Decedent dies with valid will but it does not dispose of all of decedent's property
How can you tell which state's marital rights law (domestic relations law, e.g.) applies?
It's the law of domicile at the time of marriage; rights don't change as the couple moves
How can you tell which state's intestacy law applies to succession rights (personal and real property)
Personal property: intestate's domicile at time of death.
Real property: law of situs (where land is physically located)
What are the common law way of providing intestate shares to surviving spouses?
Spouse wasn't an heir at common law, so widows received dowers and men received curtesy.
Dower: life estate was 1/3 of property husband owned during marriage, regardless of whether property was still owned at time of death.
Curtesy: life estate in all of wife's real property, provided she proved her worth and brought a child into the world!
What is the modern law way of providing intestate shares to a surviving spouse?
Note: have to be married.
Spouse is made an heir. Share of surviving spouse depends on number of children, whether surviving spouse is parent of all the spouse's children.
If decedent is survived by spouse but no descendants, surviving spouse takes estate. Note that under UPC, decedent's parents take 1/2.
Could be in dollars, percentages, based on lenght of marriage.
How does intestacy split up descendant shares when all children survive the intestate (or all of the intestate's predeceased have no descendants who survive the intestate)
Each child receives an equal or per capita share.
The younger generation descendant (grandchild) cannot take if older generation (child) is still alive.
What are the three ways for computing descendant shares when at least one descendant has predeceased the intestate and is survived by a descendant who survives intestate?
Ex. all descendants belong to second generation (grandchildren) or descendants are from multiple generations (some children, some grandhilcren)
1. Per stirpes (common law minority)
2. Per capita with representation (majority)
3. Per capita at each generation (UPC, large minority)
What is the per stirpes (common law minority) method of computing descendant shares?
1. Divide into shares at first generation below decedent (i.e. children) even if no survivors.
2. One share for each surviving child, one for each deceased child who left descendants.
3. Each surviving child receives one share, and a share of each deceased child passes to the grandchildren.
Under this model, heirs from similar generation could receive unequal shares.
What is the per capita with representation model of splitting descendant shares?
1. Divide into shares at first generation with survivors.
2. If all children are deceased, each grandchild receives equal share, rather than dividing at generation above.
Can create same outcome as per stirpes if one child is dead and one alive (split it at that generation; grandchildren still get unequal shares).
What is the per capita at each generation model of splitting descendant shares?
Modern majority. Approach was adopted by Uniform Probate Code.
1. Divide intestate property into shares at first generation with survivors.
2. Shares created on behalf of predeceased children are pooled, and then divided pro rata among grandchildren.
3. Give all equally related persons the same share. Each child gets the same as other child. Every grandchild gets the same as other grandchild.
Who are "ancestors" and "collaterals" for purposes of intestacy?
Ancestors - related in ascending lineal line (parents, grandparents)
Collaterals - persons related but not in lineal line (brother, sister, niece, nephew).
What is the general rule for passing intestacy property when a decedent has no descendants?
All property not passing to the surviving spouse passes to the ancestors and collaterals.
If both parents of a decedent survive, and the decedent has no spouse/descendants, how does intestacy split those shares?
If both parents are alive, each parent gets half.
If no parents, then to descendants of parents (siblings, niece/nephew).
If none, to maternal grandparents or descendants (grandparent, aunt/uncle, cousins)
If none to nearest kin
If none, escheats to the state.
If one parent and a sibling (or descendant of sibling) survive, and the decedent has no spouse/descendants, how does intestacy split the share?
Some states at Uniform Probate Code give entire estate to surviving parent.
Some states give half to the parent, half to first-line collaterals.
If a decedent has no, spouse, or descendant, but at least one sibling (or descendant of sibling), how does intestacy split the share?
All property would then be divided among first-line collaterals (siblings)
How does intestacy deal with second-line collaterals, grandparents, and more distant relatives?
Property passes according to state law. Some cut it off at a predetermined level (descendants of grandparents, i.e.) and others look to more distant relatives.
What is escheat to state government?
If decedent has no heirs, estate passes to state government.
What are the inheritance rights of an adopted child?
Viewed as child for purposes of inheriting their parent's estate.
Re: bio parents - jurisdictions as to whether they can inherit through bio parent.
What are the inheritance rights of an adoptive parent?
Parents can take from and through adopted child.
What are the inheritance rights of biological parents to an adopted child?
Bio parents do not take from and through adopted child.
Minor exceptions: one of the natural parents marries an adopting parent, or the child is adopted by a close relative (then might be able to)
What is adoption by estoppel, aka equitable adoption?
Conduct of parent makes it appear as if that person had adopted a child even though a formal adoption did not occur. If parent dies without completing formal adoption, some states allow child to inherit as a child. However, if child dies, many states prohibit parent from inheriting.
Do states distinguish between the adoption of a child and of an adult, for intestacy purposes?
Most states don't distinguish.
How are non-marital children vis-a-vis mother treated?
Treated the same as marital children.
How are non-marital children vis-a-vis father treated?
Many states impose additional requirements on non-marital children in order to inherit from father, such as determination of paternity or father acknowledging the child as his own
The child will inherit from his father if:
1. The father married the mother after the child's birth,
2. The man was adjudicated to be a father in a paternity suit, or
3. After death and during probate proceedings, the man is proved by clear and convincing evidence to be the father.
How does intestacy treat stepchildren?
Stepchildren are not included in intestate distributions, unless the parent has adopted the child.
Minority includes them.
May still be included under the doctrine of estoppel.
How does intestacy treat a collateral heir who shares only one common ancestor with the decedent?
"Half-blooded heirs" i.e. a half sibling
Jurisdictions vary as to the effect. Options:
1. No distinction (UPC and majority)
2. Half shares (minority)
3. Cut them out if other whole-blooded collaterals exist (minority)