Estates - Intestate Succession

upc 2-102 spousal share

(1) - spouse receives the entire estate if: (1) the decedent has no surviving descendant or parent, or (2) all of the decedent's descendants are the descendants of the spouse and there is no other descendant of the spouse who survives the decedent (2) - spouse receives first $300,000, plus 3/4 of the balance of the estate if no descendant of the decedent survives, but a parent of the descendent survives (3) - spouse receives first $225,000, plus 1/2 the balance of the estate if one or more of the decedent's descendants are not the descendant of the spouse

approaches to distribution to halfbloods

(1) 3 common law approaches (2) upc

approaches for the distribution of adopted children

(1) common law (2) upc

ways to determine the share of collateral heirs

(1) degree of kinship (2) upc / parentellic system

ways to determine shares of lineal descendants

(1) strict per stirpes (2) modern per stirpes (3) upc / per capita

approaches for the distribution of adopted children - upc 2-118

(a) - a parent-child relationship does not exist between an adoptee and their genetic parents (b) - Stepparent Adoption - a parent-child relationship exists between the adopted child and their genetic parent for purposes of intestate succession when the spouse of one genetic parent adopts the child (c) - Kinship Adoption - parent-child relationship exists between both genetic parents and the adopted child for purposes of intestate succession when the adopted child is adopted by a relative of a genetic parents or by the spouse of a relative of the genetic parent (d) - Adoption after Death of Genetic Parents - a parent-child relationship exists between both genetic parents and the adopted child for purposes of intestate succession when the child is adopted after the death of both genetic parents

upc 2-103 share of heirs other than spouse

(a) - any part of the estate that does not go to the spouse under §2-102 goes to the decedent's descendants by representation (b) - decedent's stepchildren can take if the decedent is not survived by a spouse or any blood or adoptive relatives

ways to prove paternity of a non marital child

1. Litigation with a judicial determination of paternity 2. Subsequent marriage to a child's mother - some states require an acknowledgement of paternity 3. DNA determination after the death of the father and during the probate process 4. public acknowledgement by the father of the child as his own

estate of villwock

A husband and wife were critically injured in a car accident. They were both alive when they were transferred to a hospital. All five medical technicians agreed that the husband had died minutes before the wife. The husband left a will providing all of his things be distributed to the wife. The wife had a will leaving her things to a variety of family members. The husband's daughter from a previous marriage appealed the finding the husband had died before the wife. The court holds that the husband did predecease the wife, relying on the testimony of the medical technicians and doctors. Therefore, the husband's belongings went to the wife's estate and were distributed according to her will, rather than passing to the daughter through intestate succession.

simultaneous death and intestate succession - uniform simultaneous death act

A model law providing that if two people die fewer than 120 hours apart, each person is presumed to have predeceased the other

estate fo borghi

A wife had purchased real estate prior to her marriage. The deed of the property was not executed under after the marriage and contained both spouses' names. The wife died intestate survived by her husband and a son from a previous marriage. The court determines the property is separate property because it was acquired before marriage and holds the fact a deed contains the names of both spouses is not sufficient to indicate the intent to make separate property community property. this court has taken the minority approach to the presumption

adult adoption effect on intestate succession

Adoption, even of an adult, terminates the right of the adoptee's children to inherit from an intestate decedent who was biologically related to the adoptee generally, the adoption of an adult has the same effect on intestate succession that the adoption of a child does

estate of locke

Decedent was survived by first cousins, 4 degrees of kinship, on her mother's side and first cousins once removed, 5 degrees of kinship, on her father's side. Under the applicable statute, Decedent's estate was to be split into equal shares at the decedent's grandparents and is to be distributed by representation on each side as necessary. However, the statute excluded inheritance by those more than 4 degrees of kinship from Decedent. The court allowed all of the cousins to share in the estate, stating that the statute's limitation did not apply because the cousins on each side were the same degree of kinship.

distribution of an estate with an advancement

First, all of the money distributed to heirs as advancements is added to the decedent's net estate Then, the total amount (hotchpot) is divided among the heirs in accordance with the provisions of the intestate succession statutes Amounts already received should be charged against the heirs who received those amounts if the amount of the advancement is larger than the share entitled to under intestate succession, the heir does not receive anything addition and is not required to return anything

marital child paternity presumption

If a child is born during a marriage, the child is presumed to be of the marriage In some states, this presumption is conclusive. In others, it is rebuttable

effect of divorce on intestate succession (common law)

If divorce proceedings have been initiated between spouses, but no final decree has been entered, the survivor of the two is a surviving spouse for purposes of intestate succession

advancements and intestate succession - upc 2-109

Property given to an individual is an heir of the decedent at their death is treated as an advancement against their intestate share only if: (1) the decedent declared in a contemporaneous writing, or the heir acknowledged in writing the gift was an advancement, or (2) the decedent's/heir's contemporaneous writing otherwise indicates the gift is to be considered when computing the division of decedent's intestate estate

estate of goick

The Goicks were married but had filed divorce proceedings. They had reached an oral settlement that had never been signed and the court had never entered a final decree. The husband died and his family members argued the divorce proceedings had terminated her marital property rights. The court found the wife was still the husband's surviving spouse, despite the divorce proceedings.

kummer v donak

The administrator of decedent's estate found the only heirs of the decedent were her nieces and nephews. However, the mother of the nieces and nephews had been adopted out of the family at age 53. The court held the nieces and nephews could not inherit because their mother had been adopted out of the family.

in re estate of borden

The decedent had a son outside of marriage, with which he had minimal contact. The son had close relationships with other members of the decedent's family. Decedent had written letters to his sister stating that he was the father of the child, but that he was not interested in a relationship with him. The court found that decedent's acknowledgement of fathering the child was sufficient to establish paternity.

estate of baird

The decedent's son was in prison of assault. While in prison, he executed a written disclaimer disclaiming any interest he had in his mother's estate. One week later, the son filed for bankruptcy. The court held this disclaimer was not valid because he did not have an interest in the estate when he executed the disclaimer, as the decedent had not died and an intestate interest is only created upon the death of the decedent

intestate succession of non-marital children - modern trend

Today, the mother and father of non-marital children are treated differently Mothers - In most states, non-marital children are allowed to inherit from and through their mothers and vice versa Not all states permit non-marital children to inherit through their mothers, but all states permit them to inherit from their mother Fathers - disparate treatment is allowed between non-marital and marital children of a father through the application of procedural rules to assure adequate proof of paternity, so long as the rational basis standard of review is satisfied generally, the state's interest in the clean administration of estates and protecting against frivolous challenges of paternity are used to satisfy the standard of review

approaches to distribution to halfbloods - upc 2-107

UPC §2-107 - relatives of the half-blood inherit the same share they would inherit if they were of the whole-blood and the source of the property is irrelevant

in re estate of prince

When Prince died, some "half-siblings" questioned his paternity. The court held that because Prince's mom was married to a man when Prince was born, the man she was married to was presumed to be his father.

delivery of a disclaimer

a disclaimer must be delivered after the interest in the estate is created

disclaimer of intestate succession - upc 2-1103-05

a disclaimer of intestate distribution or testamentary gift must be: (1) in writing, (2) signed by the disclaimant, and (3) delivered to the personal representative of the estate Failure to disclaim property in a timely manner will defeat the ability of an heir to disclaim a gift

effect of divorce on intestate succession (upc 2-802)

a person whose marriage is terminated by divorce or annulment does not quality as a surviving spouse and a decree of separation does not terminate the status of husband and wife for purposes of intestate succession

status of marital property presumption

a presumption arises that separate property remains separate in the absence of sufficient evidence to show an intent to transmute the property from separate to community property in most states, find adding both spouses' names to the title of property creates a presumption of the intent of the spouse to transfer the property from separate to community property

laughing heir statutes

a statute that cuts of the right to inherit an intestate estate by representation

advancements and intestate succession - common law

a substantial gift to a child by a parent raised a presumption that the gift was an advancement of the child's inheritance, and the gift was to be charged against the child's intestate share of the estate presumption was rebuttable, but the burden of proof was on the child to demonstrate the parent did not intend the advancement

approaches for the distribution of adopted children - common law

adopted children are no longer considered an heir of their natural families for the purpose of intestate succession, even in cases of stepparent adoption

intestate succession of people related to the descendant through 2 lines of succession

an individual related to the decedent through two lines of relationship can only inherit a single share based on the relationship that would allow the individual to inherit a larger share (upc 2-113)

simultaneous death and intestate succession - common law

an individual who does not survive someone else by even a single second is treated as predeceasing the other person

approaches to distribution to halfbloods - common law

approach 1 - if a decedent is survived by relatives of the half-blood and relatives of the whole-blood in the same degree, the relatives of the half-blood take half as much as the whole-blood Approach 2 - if a decedent is survived by relatives of the half-blood and relatives of the whole-blood, the whole-blood relatives take to the exclusion of the half-blood relatives Approach 3 - half-bloods take equally with whole-bloods, unless the inheritance came to the intestate decedent by descent, devise, or gift of one of his ancestors, then those who are not the blood of the ancestors must be excluded from such inheritance

community property states

assumes that property acquired before marriage is the separate property of the respective spouse and that property acquired after marriage (other than by gift or inheritance) is the product of the joint efforts of the husband and wife and each is entitled to a 1/2 share of the property only used in 8 states

converting the status of marital property - separate to community property

can be done at the will of the spouse who holds the separate property

converting the status of marital property - community to separate property

can only be done with the consent of both spouses

strict per stirpes distribution - lineal descendants

decedent's estate is divided at the generation closest to the decedent (usually the decedent's children), regardless of whether anyone in the generation is actually alive if no one in this generation is alive, the descendants of the closest generation take their parent's shares in equal shares

modern per stirpes - lineal descendants

decedent's estate is divided at the generation closest to the decedent in which there is at least one living descendant the shares of deceased descendants pass to their descendants in equal shares

upc / per capita distribution - lineal descendants

decedent's estate is divided at the generation closest to the decedent with at least one living descendant. The shares of the dead descendants are to be recombined into a 'hotchpot' and redistributed in equal shares among the descendants of the dead in the first generations the process is repeated through all generations as necessary

intestate succession heir exclusion rules

generally, a decedent's lineal descendants will take to the exclusion of other heirs if not lineal descendants are able to take, generally the decedent's ancestors will take to the exclusion of other collateral heirs

effect of adoption on intestate succession

generally, adopted children are treated to be only the children of their adoptive families for the purposes of intestate succession Attempts to 'transplant' adopted children out of their natural families

uniform parentage act

gives inheritance rights to non-marital children, creates a rebuttable presumption that a child born to a married woman is the child of the woman's husband, directs who may bring an action to contest the paternity of a child and includes the statute of limitations for bringing a contest

half-bloods

individuals that share only one parent with the decedent there is a modern trend among states to treat half-bloods as if they were whole bloods

upc 2-210 and posthumously concieved children

limits a posthumously conceived child's claim by directing that posthumously conceived children are children of the deceased if the child is in utero no later than 36 months, or born not later than 45 months, after the individuals death

intestate succession of non-marital children - common law

non-marital children were the 'children of no one' and were no permitted to inherit through either parent

upc 2-117 and non-martial children

provides that a parent-child relationship exists between a child and the child's genetic parents, regardless of the parents' marital status This provision does not apply to the provisions regarding the termination of parental rights, adoption, or assisted reproduction

uniform parentage act 707 and posthumously conceived heirs

provides that posthumously conceived children are heirs of the deceased parents only if that parent consented in writing to the use of his or her gametes after their death Many states have come to follow this approach

intestate

refers to a person who has died without a will and whose property will be distributed in accordance with the intestate succession statutes in their jurisdiction

degree of kinship - collateral heirs

the decedent's estate is distributed to decedent's "next of kin," as it is defined by the table of consanguinity Distribution is made in equal shares to all living collateral relatives with the closest degree of kinship to the decedent

upc / parentellic system - collateral heirs

the descendants of decedent's parents (siblings and their descendants) take to the exclusion of other collateral relatives. If there are no surviving descendants of the decedent's parents, then descendants of the decedent's grandparents (aunts and uncles and their descendants) take to the exclusion of other more remote collateral relatives Distribution is made in equal shares to each of the decedent's collateral relatives, whether they are living or dead, and then is distributed in accordance with other intestate succession principles - strict per stirpes, modern per stripes, or per capita distribution

determining status of property in a community property system

the status of property as separate or community property it to be determined at the time of its acquisition

traditional spousal share

the surviving spouse shares equally with the issue the decedent's issue when the decedent leaves a spouse and issue when a decedent dies with a spouse and no issue, the spouse receives the entire estate

intestate succession and community property states

under this system, a spouse only has the power of testamentary disposition over their separate property and their 1/2 of the community property if a spouse dies intestate, all of their separate property and their 1/2 of the community property will be distributed in accordance with the state's intestacy statutes

escheat

when a decedent dies intestate and without any heirs, the estate typically 'escheats' to the state or to a governmental entity designated by statute courts often strain to avoid the escheat of an estate, even after the development of laughing heir provisions