Trusts & Wills: Chapter 2 - Intestacy (part 1/2)

What are the requirements for the Step-Parent and Post-Death Adoption Rules?

(1) The natural parent (NP) and the adopted person LIVED TOGETHER at any time as parent and child, OR the natural parent was MARRIED TO or cohabiting with the OTHER NP at the time the person was conceived and DIED before the person's birth --AND-- (2) The adoption was by the SPOUSE of either of the natural parents [StepParent Adoption Rule] OR AFTER the death of either of the natural parents [Post Death Adoption Rule]

What are the THREE basic systems to decide how to divide the decedent's estate in INTESTACY?

1) English Per Stirpes 2) Modern Per Stirpes 3) Per Capita at Each Generation

HYPO: Parent leaves children A, B and C. A has two children D & E; B has one child F; and C has three children G, H and I. How would Intestate's estate be distributed in each 1) English per stirpes; 2) Modern per stirpes or per capita with representation; 3) Per Capita at Each Generation (PCEG) 1) Only Parent is deceased

1) English per stirpes: A, B and C each inherit 1/3 2) Modern per stirpes: same 3) Per Capita at Each Generation: same **Differences ONLY occur if Parent had children who predeceased him.

HYPO: Parent leaves children A, B and C. A has two children D & E; B has one child F; and C has three children G, H and I. How would Intestate's estate be distributed in each 1) English per stirpes; 2) Modern per stirpes or per capita with representation; 3) Per Capita at Each Generation (PCEG) 2) A dies first, followed by Parent.

1) English per stirpes: B and C each inherit 1/3; A's 1/3 is divided equally by D and E --> so D - 1/6 and E - 1/6. Other grandkids don't inherit bc their parent is still living. 2) Modern per stirpes: same 3) Per Capita at Each Generation: same. To achieve a different result, there must be descendants of 2+ predeceased children who did NOT leave equal numbers of descendants.

HYPO: Parent leaves children A, B and C. A has two children D & E; B has one child F; and C has three children G, H and I. How would Intestate's estate be distributed in each 1) English per stirpes; 2) Modern per stirpes or per capita with representation; 3) Per Capita at Each Generation (PCEG) 3) A and B die first, followed by Parent

1) English per stirpes: C - 1/3; A's 1/3 is divided equally by D and E --> so D - 1/6 and E - 1/6. B's estate all goes to F - 1/3. C's grandkids don't inherit bc their parent is still living. Divide at the children level. 2) Modern per stirpes: Same as English per stirpes bc the FIRST level with the live taker is the children. 3) Per Capita at Each Generation: C - 1/3; but all grandchildren share the remaining 2/3 share. Thus D, E, and F get 2/9 each

HYPO: Parent leaves children A, B and C. A has two children D & E; B has one child F; and C has three children G, H and I. How would Intestate's estate be distributed in each 1) English per stirpes; 2) Modern per stirpes or per capita with representation; 3) Per Capita at Each Generation (PCEG) 4) A, B and C all die. Then Parent dies.

1) English per stirpes: Divide at the children level. A's 1/3 is divided equally by D and E --> so D - 1/6 and E - 1/6. B's estate all goes to F - 1/3. C's 1/3 is divided equally among G, H and I - each get 1/9, 2) Modern per stirpes: FIRST level with the live taker is the grandchildren. All grandchildren get equal amounts. D,E,F,G,H, and I all get 1/6. 3) Per Capita at Each Generation: same as Modern per stirpes.

What does the surviving spouse inherit under intestacy?

1) H's half of CP 2) H's half of QCP 3) H's SP - Either 100, 50 or 33% 100% of SP - if H left ONLY SPOUSE (no descendants, parents, siblings) 50% of SP - if H left spouse + 1 (issue, parent, OR sibling) 33% of SP - if H left spouse + 2 (more than one LINEAL descent). parents don't take here.

What is Modern Per Stirpes or per capita with representation?

1) If any children survived the decedent, then use English per stirpes 2) If not, then the estate is divided equally among the first generation at which there are live takers. • Treats equally each line of descent beginning at the closest living generation • Vertical equality with horizontal equality at the closest living generation So ---> all the grandchildren would get EQUAL amounts.

HYPO: H + W are married. No children. Each have SP and CP (real property held in JT + pers property). 6) H + W are still married. H + W have NO children BUT W has one child, Gertrude from previous marriage. H's father Frank is living. How will H's estate be distributed if he dies intestate survived by W, F and G?

1) NONPROBATE FIRST - W gets 100% real property bc JT 2) Scenario ONE (no issue). So Surviving Spouse W gets 100% of H's CP + QCP and 50% of H's SP bc Scenario 2 (spouse +1): H left no children but did leave 1 parent. (G belongs to W). 5) Of H's remaining 50% SP --> goes to Frank, bc no issue. After surviving spouse --> IPS G SKI

HYPO: H + W are married. No children. Each have SP and CP (real property held in JT + pers property). 6) H + W are still married. H's father Frank is living. Assume H has one child C from previous marriage. C predeceases H but is survived by TWO children, A + B. How will H's estate (JT, CP and SP) be distributed if she dies intestate, survived by W, F, A and B?

1) NONPROBATE FIRST - W gets 100% real property bc JT 2) Surviving Spouse W gets 50% of the CP 3) Surviving Spouse W gets 50% of the QCP 4) Surviving Spouse W gets 50% of H's SP bc Scenario TWO: surviving issue from one dead child. 4) Of H's remaining CP and SP, A + B (surviving children of dead child) get 50%. 5) Frank does not get anything bc there are surviving spouse and issue of dead child. After surviving spouse --> IPS G SKI

HYPO: H + W lived together but were never married. They have a child, Zoe. How will H's estate be distributed if H dies intestate and is survived by W, Z and F (H's father)?

1) NONPROBATE FIRST - W gets 100% real property bc JT. And everything that is in W's name. There is no community property. Only W's SP and H's SP. 2) H's SP --> 100% to Zoe.

Next of Kin Problem: Calculate the degree of relationship between A, B, C and D and the Decedent. 1. A Decedent = 5th Degree a. M GM GGM GGGM ↓ A 2. B Decedent = 5th Degree a. M GM GGM ↓ GA ↓ B 3. C Decedent = 5th Degree a. M GM GGM ↓ GA ↓ C 4. D Decedent = 6th Degree a. F GF GGF ↓ GU ↓ FC ↓D Who inherits under Parentelic, Degree of Relationship and Hybrid?

1) Parentelic: D,B,C take equally because they are in closer parentelic lines. (See table of consanguinity) 2) Degree of Relationship: A, B, C split equally bc all are 5th degrees. 3) Who would take in a Hybrid State? (CA approach) 1. First, find out the degree or relationship. If they are the same, then parentelic lines is the tiebreaker. 2.B & C Would take in a hybrid state bc they are in the closest parentelic line (closest common ancestor)

HYPO: Decedent dies intestate owning $500K in property ($100K is CP). He is survived by registered domestic partner and the couple's daughter. What is the partner's share?

1) Partner gets Decedent's half of CP ($100K) 2) Scenario #2 (spouse + 1) so spouse gets 50% of Decedent's SP. = $200K. Total = $300

HYPO: H + W are married. No children. Each have SP and CP (real property + pers property). 3) H dies intestate, survived by father, Frank. FOUR years later, W dies intestate, survived by mother Mildred. How are their assets distributed?

1) Recapture applies to BOTH Real and Personal Property bc W dies LESS than 5 years after H. Real Property - 50% to Frank, 50% to Mildred Personal Property - per record of title, $10K or more, 50% to Frank, 50% to Mildred

HYPO: H + W are married. No children. Each have SP and CP (real property + pers property). 2) H dies intestate, survived by father, Frank. 10 years later, W dies intestate, survived by mother Mildred. How are their assets distributed?

1) Recapture applies to REAL PROPERTY bc W died LESS than 15 years after H. Frank = 50% and Mildred = 50%, 2) PERSONAL PROPERTY still goes to Mildred (W's hear and W is last to die).

HYPO: Decedent dies intestate, leaving an estate worth $750K ($150K is CP). Decedent is survived by spouse. Decedent and spouse had two children, A and B. B predeceased Decedent, leaving two children, X and Z. How is the estate divided among Decedent's family members?

1) Separate the property. 150K = CP, 600K=SP (Decedent). 2) Surviving spouse takes the Decedent's share of CP. 3) Regarding the SP, this is scenario 3 (spouse + 2). So spouse gets 33% of SP. Thus, spouse gets $150 CP + 200 SP = $350K. Left $400K for the issue. 4) The cut is at the child level. Modern per stirpes. A gets $200K. B's LINE gets $200k. So X and Z share B's share and get $100K each.

What are the TWO exceptions for the rule that adopted children CANNOT inherit to/from their NPs after adoption?

1) Step-Parent Adoption Rule: 2) Post-Death Adoption Rule

How many ways can a Parent-Child relationship be establish for inheritance from AND through? What CAPC covers this and what is the restriction?

1) Traditional CL approach - Parents are married 2) Traditional CL approach - Parents are unmarried plus 6 kinds of adoption: 1. Regular/Classic Adoption 2. Equitable adoption 3. Adult adoption 4. Stepparent adoption 5. Foster-parent adoption (attempted adoption) 6. Post-death adoption → preserves rights of the child to inherit from NP 7. Non-stepparent adoption → ex: adoption by mom's boyfriend REASFPN (reas for pretending natural) CAPC 6450 ONLY for INTESTACY

Can an adopted adult child inherit from his adoptive grandmother if the adopted parent inherits under the WILL? How is it different for Intestacy?

1) Under will --> 21115 applies. YES, BUT Only if he LIVED as a MINOR in the household of the adopted parent (or adopted parent's grandparent, bro, sis, surv spouse). 2) Under INTESTACY --> 6450 applies. No limitation on age, minority at all. If you are adopted as an adult, you can inherit under INTESTACY from your adopted parent's family.

Under Recapture scenario, who takes W's portion of REAL PROPERTY under 6402.5? PERSONAL PROPERTY? What is the difference btw real property and personal property in the recapture scenario?

1) W's issue 2) W's parents equally 3) W's siblings (even children out of wedlock or different marriage) 4) H's next of kin 5) W's next of kin IPS KK Same rules for real property AND personal property. Real property - if W died <15 years before H Personal property - if W died <5 years before H. Aggregate $10K with recorded title.

What is the procedure for deciding who gets your property at death?

1) Who gets your nonprobate property 2) Who gets your probate property -depends on if TESTATE (will) or INTESTATE (law of intestacy)

H dies intestate. A, B, C, D are his children. A and C are deceased. A has 1 child, R. B has 2 children, S and T. D has 2 children, X and Y. Who takes?

1. Per Stirpes a. 2 lives takes (B and D) get 1/3 each b. 1 deceased child with issue (R) gets 1/3 c. Total of 3 shares 2. Per Capita a. Same as per stirpes bc living child so cut at first generation

For the FIRST Qs, at which generation do we make the first cut, how it that answered within each method?

1. Per Stirpes a. ALWAYS first generation/children level i. Living or dead is irrelevant 2. Per Capita (Modern Per Stirpes) a. First generation w/ live taker i. If no living children, go to next generation ii. Identical result to per stirpes UNLESS no living children 3. Per Capita at Each Generation a. First generation w/ live taker

H dies intestate. A, B, C, D are his children. A has 1 child, R. B has 2 children, S and T. D has 2 children, X and Y. iii. Now assume A, B, C, and D are deceased. Children same as above.

1. Per Stirpes a. One share to each deceased child who leaves issue (A, B, D 3 shares) i. R gets 1/3 ii. S and T get 1/6 (half or B's 1/3 share) iii. X and Y 1/6 each (half of D's 1/3 share) 2. Per Capita a. Shares split between first generation w/ live taker i. R, S, T, X, Y each get 1/5

HYPO: H and W are in a plane crash. W dies a millisecond AFTER H. H's father Frank survives and W's mother Mildred survives. H has a life insurance policy. Who gets the life insurance benefits?

120 hours rule only applies to probate property W inherits it upon H's death and since W died, it goes straight to Mildred.

What is a lapse?

A gift FAILS (revoked by operation of law) when the beneficiary fails to survive Testator - effect: falls to the residue, and passes with the rest of the residuary estate - UNLESS anti-lapse statute

What do we do in intestacy if both H + W die in a plane crash?

A person who fails to survive the decedent by 120 hours [FIVE days] is deemed to have predeceased the decedent for the purpose of intestate succession, and the heirs are determined accordingly. Here→ if less than 120 hours btw death, then H dies WITHOUT a surviving spouse and we split the community into a TiC and split everything 50/50, like §6405. W's father takes her share of CP.]

What is a putative spouse?

A person who had a subjective belief that he/she was lawfully married. NOTE: the property is then quasi marital property and split 50/50

What property may the decedent give away in his will?

A will may dispose of the following property: (a) The testator's separate property. (b) The one-half of the community property that belongs to the testator under Section 100 . (c) The one-half of the testator's quasi-community property that belongs to the testator under Section 101 .

HYPO: Intestate had three children, A, B and C. A died but left D and E. B died before A. How would Intestate's property be divided using English per stirpes distribution?

A's children each share A's place: D - 1/4, E - 1/4 B gets nothing bc he died & no children C - 1/2

HYPO: Intestate had three children, A, B and C. A died but left D and E. B died before A. How would Intestate's property be divided using Modern per stirpes distribution?

A's children each share A's place: D - 1/4, E - 1/4 B gets nothing bc he died & no children C - 1/2 **Same as for English per stirpes, but for a different reason. Under Modern per stirpes, the shares are divided at the CHILDREN level bc it is the FIRST level w/ a live taker.

HYPO: H and W are married. H dies intestate. A, B, C, D are his children. X and Y are A's children. A is deceased. After W takes the surviving spouse share, how is the rest of the intestate property divided?

A's issue take his share (dropped share) and split equally among X & Y. 1/8 each BCD all get 1/4 each.

Recapture Scenario: (W is predeceased spouse) HYPO: What if W owned a necklace for $8K and car is $24K?

A= Aggregate in TOTAL must exceed $10K. So both can be recaptured if exist, traceable. Same personal property that had been there when W died.

What is equitable adoption? What is it also called?

An oral agreement to adopt is inferred if adoptive parents takes child into home to raise as own a. Informal adoption b. Virtual adoption c. Adoption by estoppel **Inheritance rights only from parent, not through

What is next of kin?

Anyone in the neighboring parentelic chains.

Can you disinherit someone in your will? If so, what should you be careful about?

As a drafting matter, no problem with disinheritance, just ensure that you give everything away AFFIRMATIVELY to others. Otherwise, it will be distributed in intestacy and may likely go to the person you do NOT want it to go to.

HYPO: H + W are married. No children. Each have SP and CP (real property held in JT + pers property). 4) H dies intestate, survived by father, Frank. THREE DAYS later, W dies intestate, survived by mother Mildred. How are their assets distributed? What is special about the REAL PROPERTY?

Because LESS than 120 hours (5 days), for intestacy, treat as though there is a simultaneous death. Thus, W does NOT survive as far as intestacy goes. H's property --> Frank. W's property --> Mildred. Real property was JT and is NOT subject to the 120 hour rule. Recapture Applies. So Mildred gets W's half. Frank gets H's half bc of recapture.

HYPO: Intestate had four children, A, B, C and D. A died leaving E. B died leaving F and G. C and D survive. How would Intestate's property be divided using Modern per stirpes representation?

C - 1/4 D - 1/4 E gets A's share - 1/4 F and G share B's share - 1/8 each Only equal at the live taker line.

HYPO: Intestate had four children, A, B, C and D. A died leaving E. B died leaving F and G. C and D survive. How would Intestate's property be divided using Per Capita at Each Generation representation?

C - 1/4 D - 1/4 The remaining 1/2 of the property is shared among ALL the grandchildren in the next generation. So three live takers x 1/2 = E, F and G each get 1/6. Like Modern Per Stirpes, but true horizontal equality at the next generation, not only the first generation.

What state's law covers the distribution of your property at death?

Depends on the TYPE of property Personal Property - Law where deceased was domiciled at time of death Real Property - Law where the land is located

HYPO: Intestate had three children, A, B and C. A died but left D and E. B died before A. C died but left F. How would Intestate's property be divided using English per stirpes distribution?

English per stirpes: vertical equality but NOT horizontal equality A's children each share A's place: D - 1/4, E - 1/4 B gets nothing bc he died & no children F gets all of C's share - 1/2

What two types of adoption are NOT really adoptions? What are they?

Equitable Adoption Foster Parent Adoption They are equitable remedies when 1) BUT FOR a legal barrier, the child would have been adopted; 2) only the CHILD's inheritance rights through the adopted parent are created.

What if the foster child is not officially adopted by the foster family bc the NPs won't give up rights?

Foster parent provides a home for a child. BUT→ what if NPs do not consent to the adoption? Foster child is essentially part of the foster family, but foster child does not legally inherit from the foster family. When child turns 18, he can consent to the adoption and do not need NP's consent.

HYPO: Rebecca is married to Chase, then have two sons and then Chase dies. If Rebecca marries Paul, and Paul formally adopts the two sons, then from whom can her sons inherit?

From BOTH Chase and Paul bc the two requirements are met. 1) Sons lived with their natural dad Chase as parent and child 2) New stepdad Paul MARRIES Rebecca and adopts the boys.

Intestate succession follows _______________. If the decedent is not survived by issue or parents or siblings, then the intestate's property not passing to ___________, passes to _____________ and other second-line collaterals. What are the three Next of Kin 3 Approaches (if no first-line collaterals)?

IPSGSKI them grandparents 1) Parentelic System 2) Degree of Relationship 3) Hybrid (CA)

How could a child inherit from FOUR parents?

If his parents die and he is adopted by a stepparent who MARRY your widow parent. Adoption must be by new stepparent who marries your widow mom/dad] If these are met→ then you PRESERVE the right to inherit from your natural parent. Thus→ adopted child could have up to FOUR parents to inherit from (two natural parents, two stepparents)

What process covers the distribution of PROBATE property that is NOT covered by a will? Can a person die partially intestate?

Intestate Succession Yes - he can be intestate as to PROPERTY, if the person's will fails to dispose of ALL his probate estate.

HYPO: H + W are married. No children. Each have SP and CP (real property + pers property). 1) H dies intestate, survived by father Frank. 20 years later, W dies intestate, survived by mother Mildred. How are their assets distributed?

Mildred (W's heir) inherits ALL. Beyond time for recapture (15 yrs for real property, 5 years for personal property)

What intestate rule is used in CA?

Modern Per Stirpes or per capita with representation

HYPO: Intestate had three children, A, B and C. A died but left D and E. B died before A. C died but left F. How would Intestate's property be divided using Modern per stirpes distribution?

Modern per stirpes: vertical equality AND horizontal equality The live takers are at the grandchildren level. All grandchildren get EQUAL shares: D, E & F - all get 1/3 B's line gets nothing bc he died & no children

Does a person named to inherit in a will have any enforceable rights during the testator's lifetime?

NO! A will during the donor's lifetime is like telling donee you'll give him a gift. Changeable. Donee has expectancy that does NOT MATURE until donor's death

HYPO: H + W are married. No children. Each have SP and CP (real property held in JT + pers property). 5) Assume H + W die simultaneously in a plane crash. Both bodies are burned beyond recognition. Both die intestate. H dies intestate, survived by father, Frank. W dies intestate, survived by mother Mildred. How are their assets distributed?

Neither spouse leaves a surviving spouse. 6402 applies. IPSGSKI Partition the property evenly.

Can the adoptive parent inherit through the adopted child?

No, but the adopted child CAN inherit from the adoptive parent. One-way benefit for child of adoption a. Parent cannot inherit from and through child b. Wholeblood sibling can inherit

Recapture Scenario: (W is predeceased spouse) HYPO: Would there be any recapture if H sold everything of W's and then bought a new tv? Or gave the Microsoft stock away?

No. Recapture ONLY applies if it is STILL THERE when W dies. W's "fingerprint" must still be there. Cars, receipts, brokerage accounts that are traceable. MATERIALITY STANDARD = $10K.

Can nonmarital children (born out of wedlock) inherit from their parents?

Nonmarital Children [ex: "illegitimate children"]. All states permit inheritance by a "nonmarital child" from the child's MOTHER.

Mom + Dad lived together when Child was conceived. Dad died before Child was born. Mom's new boyfriend adopted Child. From whom can Child inherit?

Only from Mom and boyfriend (the new stepdad). Not from Dad bc that is severed. This falls short of qualifying under the Step-Parent Adoption Rule. Child can inherit from BOTH NP and Step-Dad ONLY if Step-Dad is married to Mom.

What if Fred leaves his wife Wilma for girlfriend Betty? Can Fred leave his property to Betty?

Only his half of CP and his SP. Automatic presumption that its community property UNLESS the property is TRANSMUTED [must be in writing with intent]. o Pension is also CP and subject to division at divorce and to spouse at death. o Includes overtime.

Where does the decedent's property go in probate if there is no surviving spouse OR the rest of the property AFTER the surviving spouse has taken her share?

PC 6402: IPSGSKI 1) Issue 2) Parents equally 3) Issue of Parents equally (SIBLINGS) 4) Grandparents or issue of grandparents equally 5) Issue of predeceased spouse, equally - STEPKIDS 6) Next of KIN, equally 7) Parents of Predeceased Spouse (your IN-LAWS or issue of those parents)

HYPO: Parent had three children - A,B and C. C predeceased Parent but was survived by his spouse H. C has no descendants. How do you distribute Parent's estate?

Parent's estate passes 50% each to A and B. No shares set aside for C because C did not have any descendants who survived Parent. Spouse H has NO CLAIM to the property. As a son-in-law, H is NOT a descendant to Parent.

What personal property is covered under the Recapture Scenario? Who bears the burden of proof to show the exact PERSONAL property to be distributed under the Recapture Scenario?

Personal Property where there is a WRITTEN record of TITLE or ownership AND the value is $10K or more. Not here to argue over pots and pans. Not getting into this nightmare over chump change. 1) W's part of CP 2) W's part of CP that she gave to H 3) W's property that vested in H by right of survivorship (ex: JT) The claimant heir.

What is a posthumous child? What is the rule for children to inherit that were born posthumously?

Posthumous child: conceived before, but born after father's death ii. Common law: Any child born 280 days after death, presumed to be child of father iii. Modern Trend (CA rule section 7611 family code): If child born 300 days after death, presumed to be child of father 1. IF OUTSIDE of the 300 day window, then the presumption is not there that the child is that of the father's.

What is quasi-CP?

Quasi CP = property that is acquired in a different state. WOULD have been CP IF you had been living in CA. Ex: property acquired while you were in OH. For purposes of death or divorce, Quasi CP is treated as CP.

When is quasi-CP counted?

Quasi-CP does not apply until death or divorce. Thus, the decedent has no interest in any property acquired by his spouse that would be quasi-CP until divorce OR upon spouse's death.

There are TWO special rules about JT real property: 1) ___________ can reach real property held in JT. 2) Regarding simultaneous deaths, the _____________ rule does not apply.

Recapture 120 hour

What is per stirpes distribution? What is English per stirpes?

Right of Representation "by the stocks" - vertical equality, but NOT horizontal equality • Vertical equality. [it's ALL about the CHILDREN. If three live children→ 3 shares. The next generation SHARES evenly from the one spot it descended from. • Produces equal shares across the decedent's line of descent. But grandchildren may get UNEQUAL amounts, depending on how many siblings they had.

What happens to your CP if you get separated?

Separation stops the accrual of CP assets, but not the marriage.

What is per capita at each generation?

Shares that are unclaimed on the first level are treated as one pot and divided equally among the next generation. *Only applies if there are no live children

How can a child inherit from his stepparent? What is the child's NP is still living?

Stepparent must adopt the child. Must have NP's consent. If NP is a disappearing dad, then natural mother cannot remarry if they're not divorced. If they are, stepparent STILL needs NP dad's consent.

If there are no first-line collaterals, who inherits under the Degree of Relationship System?

The heir with the lowest Degree of Relationship ii. Degree-of-relationship system 1. Focus on number of links in chain between you and decedent a. The shorter the chain (fewer number of links between you and next of kin), the better 2. How to count steps a. From decedent to nearest common ancestor and b. Then count down to claimant from common ancestor c. Total steps = degree of relationship

What if there is no one to take your leftover probate property under PC6402?

The property escheats to the State.

What happens to the natural parent-child relationship when the child is adopted by adoptive parents?

The relationship is severed. The child can no longer inherit from and through the NP and vice versa.

What is required for a child to inherit from his Foster Parent (who didn't officially adopt the child)?

The relationship of parent and child exists between that person and the person's foster parent or stepparent if both of the following requirements are satisfied: [creates a DE FACTO parent-child relationship] 1. (a) The relationship BEGAN during the person's minority and continued throughout the joint lifetimes of the person and the person's foster parent or stepparent. 2. (b) It is established by clear and convincing evidence that the foster parent or stepparent WOULD have adopted the person but for a legal barrier

Ned + his son lived together. When son was 8, Ned died and son went to live with his mom Nancy. Nancy's husband StepDad formally adopted Ned. From whom can Ned inherit?

This qualifies under the Step-Parent Adoption Rule so Ned can inherit to and from both his NP (Ned)'s family AND from StepDad's family. NP (Ned) + adopted person lived together when adopted person was a child. AND person who adopted (StepDad) was the spouse of the adopted person's NP (Nancy).

As soon as the adopted child is adopted, what happens to the rights btw AP and NP?

To/from inheritance rights ATTACH btw child & AP To/from inheritance rights SEVER btw child & NP

What if the deadbeat parent deserts the child but then tries to inherit when the child wins the lottery and dies?

Under S6452 (a) A parent does NOT inherit from or through a child on the basis of the parent and child if: (2) The parent did not acknowledge the child. (3) The parent left the child during the child's minority without an effort to provide for the child's support or without communication from the parent, for at least seven consecutive years

What if H is a widow. H dies (<15 years later) w/o having remarried + H has no issue + no will. And some portion of H's assets are "attributable" to H's predeceased spouse W who died <15 years prior → who are we going to give that property to? Under trad rule and new rule?

Under traditional rules of 6401, H's family gets EVERYTHING. W's family doesn't get anything. §6402.5 is designed to solve this. RECAPTURE. → If you die relatively close to the time your spouse did, then your family does not get to keep everything from W. • 15 years - real property • 5 years - personal property

What case considered whether children born to frozen genetic material could be considered heirs and allowed social security benefits from dead dad?

Woodward v. Commissioner of Social Security: After finding out he had leukemia, husband preserved some sperm. 2 years after his death, his widow conceived twins using his specimen. Mother applied for social security survivor's benefits. SSA rejected claim bc she had not established that the twins were the husband's children. Issue re whether posthumously conceived child conceived after father's death will enjoy inheritance rights of natural children. Holding: Yes, in certain narrow circumstances - here it was ok. (under CA state law, Woodward would not be satisfied under CAPC §249 - bc 1) Dad did not give written CONSENT and 2) babies were not in UTERO w/in two years of dad's death)

You can adopt s.o. to make them __________. But you cannot adopt s.o. to make them ________________. APPLIES to ________

YOUR heir SOMEONE ELSE'S HEIR. WILLS For purposes of construing ANYONE ELSE'S WILL→ Ex: the adopted person will not be in Grandma's will unless he was adopted as a MINOR. But the adopted person will always be able to inherit from his adopted parent. But from that parent ONLY if not adopted while a minor.] Prohibits adopted adults from inserting themselves in someone else's family tree

HYPO #2: Rebecca is married to Chase, then have two sons and then Chase dies. Then Rebecca marries Paul, who adopts the sons. What if Chase's brother dies intestate. Can the boys inherit from their uncle? What case is this like? Whose rights do we consider?

Yes, from uncle. 1. Inheritance rights would be preserved from and through displaced natural parent and be able to inherit from uncle 2. Either approach would satisfy→ FROM and THROUGH. Uncle could NOT inherit from nephews. But from Father 2 (Paul), the inheritance is UP and DOWN bc he is the new legal adoptive father. Hall v Vaallandingham - Boys were not allowed to inherit from uncle bc they were adopted by stepdad. Not CA law. The child's rights. Not the parents to inherit from the children.

Do halfbloods inherit the same as wholebloods? HYPO: F and W are married. They have 4 children; A, B, C, D. F dies and W remarries F2. They have one child; E.

Yes. All children inherit equally, so ABCD and E all inherit the same even though they had different fathers.

What is an example of equitable adoption? What is the CA rule?

a. Ex: O'Neal v. Wilkes: virtual adoption or adoption by estoppel. O'Neal was basically raised by the Cook couple (who had no kids). Though they did not officially adopt her, held O'Neal out as their daughter. b. Follows K law. CPC §6455 - CA recognizes equitable adoption, but it a CONTRACT-based

Long HYPO: D has 3 children, A, B, and C. A has 5 children, P, Q, R, S, and T. T has 1 child, F. B has 1 child, V, and a living spouse. C has 2 children, Y and Z. Z has 2 children, G and H. 1. Assume A, B, C, R, T, and Z die. Who takes?

a. Per Stirpes i. First cut at first generation children ii. 3 shares to A, B, C equally iii. A's 1/3 share drops to P, Q, S, and F equally (1/12 each) iv. B's 1/3 share drops to V 1. Spouse does not inherit from D v. C's 1/3 share drops to Y and Z (1/6 each) 1. G and H split Z's share (1/12 each) b. Per Capita i. First cut at second generation bc of 1st live taker rule ii. 7 shares 1. One for each live taker and one for each deceased w/ issue iii. 1/7 to P, Q, S, V, Y, F iv. 1/14 to GH c. Per Capita at Each Generation i. First cut at second generation bc of 1st live taker rule ii. 5 shares 1. One for each live taker and one for each deceased w/ issue a. 1/7 to P, Q, S, V, Y iii. 2 dropping shares (T and Z) 1. 2/7 of D's total estate divided among all potential takes in dropped generation a. 2/21 to F, G, and H

For intestacy→ you not only need to show you ________________survived, but _____________survived for 5 days. Two-pronged actual + legal survival for intestacy. If it fails, for intestacy purposes, you did _____________.

actually LEGALLY NOT survive.

Wills are _____________. This means they are created during your lifetime and ________________.

ambulatory wills can be changed until death Only become EFFECTIVE at death.

CP is a _________________ with rights ________________. It is like a hybrid between _________ and ____________. Why?

concurrent estate of survivorship JT and TiC o If you die intestate (w/o a will), the presumption of the CP is that the surviving spouse owns it [DEFAULT rule of testacy]. (like JT). Also - if you divorce - automatically 1/2 CP goes to each spouse. o If you die TESTATE, then you can will your half away. (like a TiC)

W marries H. That does not mean that H inherits from W's parents. BUT if W adopts a child, the child ______________.

gets to inherit from W's parents. (intestacy and if express in will)

What is the Three Prong Analysis for deciding intestate succession?

i. At which generation do we make the first cut? ii. Into how many shares do we divide? iii. What do we do w/ dropping shares?

What is an example of clear & convincing evidence that would show the Foster parent WOULD have adopted the child?

i. Child uses foster parent's last name ii. Witness testimony that foster parent always said he really wanted to adopt child iii. Hired PI to find natural parent

If there are no first-line collaterals, who inherits under the Parentelic System?

i. Parentelic system 1. If there are no issue, property passes to a. GRANDPARENTS and their descendants b. If none, to GREAT-grandparents and their descendants c. If none, to great-great grandparents and their descendants

For the SECOND Q in the Three-Prong analysis --> ii. Into how many shares do we divide?

ii. Into how many shares do we divide? 1. Per Stirpes a. One for each live child b. One for each deceased child who leaves issue behind 2. Per Capita a. One for each live TAKER (could be different than child generation) b. One for each deceased take who leaves issue 3. Per Capita at Each Generation a. One for each live taker b. One for each deceased who takes issue

From whom can the child inherit if he once lived with his natural dad and now lives with stepparent? What is the catch?

ii. Per §2451→ the NP dad + child did live together, child can inherit from both old and new dads. iii. BUT→ what if stepdad is not married to the natural mother? Per §2451→ they MUST marry. "Spouse of either parent". Mom's boyfriend can't adopt. 1. Ex: Kurt Russell & Goldie Hawn do NOT get married. Kurt can adopt any of Goldie's previous children (if that natural father consents) BUT the child will LOSE the inheritance rights from his natural father.

If there are no first-line collaterals, who inherits under the HYBRID Approach?

iii. Hybrid (Ca approach) 1. Start by looking at degree of relationship 2. If tie the one in closest parentelic line wins a. If same parentelic line both share equally

For the THIRD Q in the Three-Prong Analysis --> iii. What do we do w/ dropping shares?

iii. What do we do w/ dropping shares? 1. Per Stirpes a. Straight bloodline descent through deceased into bloodline of decedent until we find a live one 2. Per Capita a. same as per stirpes: Bloodline 3. Per Capita at Each Generation a. Pooling: dropping shares reallocated and combined for the same generation similarly situated

Assuming S does not have a will, the ___________ decides where S's property goes at his death.

probate code

What does the probate code decide?

what the legislature thinks should be your intentions if you DON'T leave a will.