Casebook Connect - Wills, Trusts, and Estates (Chapter 2: Intestacy: An Estate Plan by Default)

Bob Cratchit owns 1,000 shares of Scrooge & Marley Corporation stock. He has four children, including Tiny Tim. He gives Tim the shares of Scrooge & Marley, at a time when they're trading at $5 a share, and includes with the gift a note saying that he's intending this gift as an advancement against Tim's inheritance. Cratchit dies some years later, without a valid will. When he dies, the shares of Scrooge & Marley are trading at $10 a share. For purposes of figuring Tim's share in Cratchit's estate, which figure will be used—the $5 valuation or the $10 valuation?

$5. The rule is that advancements are valued as of the date they're received, not the date of the intestate's death. The UPC says the valuation will be done at the earlier of the gift or the death. UPC §2-109(b).

What is "intestate succession"?

The way a person's property is distributed if that person dies without a will. So, a person who dies without a will is said to die "intestate." With that in mind, it's probably no surprise to learn that a person who dies with a valid will is said to die "testate." UPC §2-101.

Peter the Great has two daughters, Catherine and Lulubelle. Catherine has a fondness for the ponies, and runs up a debt of $10,000 at the track. Peter gives her the money to pay off her debt, along with a note saying that it's an advancement against her inheritance. He dies five years later, leaving a will naming his two daughters as his heirs, and indicating that they should each receive equal shares in his estate. His estate is worth $100,000. What will each of them get?

$50,000, because that's what his will provides. This is a bit of a sneaky question to put in with a bunch of cards about advancements, because if you were thinking of calculating the shares in light of the advancement to Catherine, you'd come up with $45,000 to Catherine and $55,000 to Lulubelle. But the catch is, advancements count only when the donor dies intestate. Here, Peter died with a will. In that case, the terms of the will control. The will doesn't say anything about the $10,000 gift to Catherine, and that's why they each get $50,000. RELATED ISSUE: Let's say that Peter actually did die without a valid will. In that case, you'd take the $100,000 estate, and add back Catherine's $10,000 advancement. That gives you an estate of $110,000. Then you'd divide it between the two heirs, and you'd get $55,000 for each. Lulubelle would get the whole $55,000, and Catherine would get $55,000 less her $10,000 advancement, or $45,000.

Mickey and Minnie Mouse are married. They have two children, Lab and Eek. Minnie leaves Mickey and the children. After she's been gone for three years, Mickey, mistakenly believing that he is divorced, marries Snow White. They have two children, Doofus and Spartan. Of the four children, Lab, Eek, Doofus, and Spartan, which ones will be considered marital children for intestacy purposes?

All of them, even though, technically speaking, Doofus and Spartan are nonmarital children because Mickey's existing marriage to Minnie means his marriage to Snow White was void. Under modern law, a nonmarital child is always the heir of the mother. To inherit from the father, paternity has to be proved. In this example, even though the marriage of the parents of Doofus and Spartan was void, under long-standing law the children of such a marriage are marital children. That means that because there is no doubt that Mickey is their father, they inherit from and through both their parents. Under the UPC, so long as Mickey is the father of these children, they all inherit from and through him because marital status of a child's parents is irrelevant to existence of a parent-child relationship. UPC §2-117.

Husband and Wife hold title to their home as joint tenants with right of survivorship. Wife kills Husband and is convicted of voluntary manslaughter. Who has title to the house?

American jurisdictions do not agree on the answer. UPC §2-803(c)(2) converts the joint tenancy (or a tenancy by the entirety)into a tenancy in common. The victim's half passes through the victim's estate, and the slayer retains the other half. Other solutions include a life estate in the slayer, with remainder to the estate of the victim or the imposition of a construction trust on the slayer requiring the slayer to convey the victim's share or perhaps all of the property to the victim's estate.

Juwon and Leslie met during basic training in the armed forces. They married a few months later but never got around to executing wills. Both were assigned to Iraq. Leslie was wounded in a firefight. Juwon was rushing to help her when his vehicle hit a roadside bomb. He suffered severe burns over 70 percent of his body. She died later that day, and he died three days later. Leslie was survived by her mother, Mae, and Juwon was survived by his father, Freddie. (a) Who takes Leslie's and Juwon's property under the traditional common law approach? (b) Who takes Leslie's and Juwon's property under the modern trend/UPC approach?

Answer: (a) At common law, to qualify as a taker, one had to prove by a preponderance of the evidence that he or she survived the decedent by a millisecond. Under the common law approach, Juwon would qualify as a surviving spouse. Because Leslie is also survived by her mother, Juwon would take 50 percent of Leslie's property, with the remainder going to Leslie's mom, Mae. When Juwon dies three days later, he does not have a surviving spouse. Leslie actually died three days before he did. All of Juwon's property (including the 50 percent that he took from Leslie's estate) will go to his father, Freddie. (b) Under the modern trend/UPC approach, to qualify as a taker under intestacy, one has to prove by clear and convincing evidence that he or she survived the decedent by 120 hours (5 days). Although Juwon actually survived Leslie, he did not legally survive her—he cannot meet the statutory survival requirement. Juwon will be treated as if he predeceased Leslie, and all of Leslie's property will pass to her mother, Mae. When Juwon died, Leslie had actually predeceased him. He has no surviving spouse, so all his property will pass to his father, Freddie.

Molly is a single mom. Her husband died years ago, and she has struggled to raise their two children, Alice and Bob. Alice has been an ideal child, excelling in school and graduating from college. Molly gave Alice $100,000 while Molly was alive, to help offset the expenses of attending a private college. Bob, on the other hand, has been an underachiever, not even graduating from high school. Molly died unexpectedly last week, with an estate of $300,000. How should Molly's estate be distributed: (a) Under the common law approach? (b) Under the modern trend/UPC approach?

Answer: (a) Under the common law approach, any inter vivos gifts made from parent to child were presumed to be advancements that should count against the child's share of the parent's estate. Here, assuming Alice could not rebut the presumption, the $100,000 would qualify as an advancement. The advancement amount is added back into the decedent's estate ($100,000 + $300,000) to create the hotchpot ($400,000). The hotchpot is then divided among the heirs, with the advancement amount credited against the share of the recipient of the advancement. Here, the hotchpot would be split 50-50 between Alice and Bob, $200,000 each. Alice's advancement would be counted against her share of the hotchpot, and she would take only $100,000. Bob would take the remaining $200,000. (b) Under the modern trend, there is a presumption against inter vivos gifts counting as advancements unless there is a writing expressing such intent on the donor's part. Here, there is no evidence of any such writing. The $100,000 was merely an inter vivos gift. Molly's estate of $300,000 would be divided equally between Alice and Bob, with each taking $150,000.

Intestate died on May 1. Heir died on May 4. Heir was Intestate's last surviving heir. Thus, if Heir does not inherit, Intestate's property will escheat. Heir's will leaves the entire estate to Charity. Who is entitled to Intestate's property in a jurisdiction with a 120-hour survival requirement?

Answer: Although Heir did not outlive Intestate by the required 120 hours, most statutes provide that the survival period does not apply if escheat would result. See UPC §2-104. Accordingly, Heir is entitled to inherit, and Charity receives Intestate's property as the sole beneficiary of Heir's will.

Intestate had three children, Arthur, Brenda, and Charles. Intestate advanced two assets to Arthur, a house worth $100,000 at the time of the advancement and a car worth $30,000 at the time of the advancement. Intestate died with a distributable probate estate of $500,000. At the time of Intestate's death, the house had appreciated to $300,000, and the car had depreciated to $1,000. What is the proper distribution of Intestate's estate?

Answer: Arthur receives $80,000, Brenda receives $210,000, and Charles receives $210,000. Advancements are typically valued as of the date of the advancement. See UPC §2-109(b). Thus, subsequent appreciation and depreciation of advanced property is ignored when going into hotchpot. The house valued at $100,000 and the car valued at $30,000 come into hotchpot. The value of the hotchpot, that is, advancements plus Intestate's estate, is $630,000. Each of the three children is entitled to $210,000. Because Arthur already received advancements valued at $130,000, he receives only $80,000 from the estate. Brenda and Charles each receive a full $210,000 share because neither of them had received an advancement.

In the situation diagrammed below, how would Intestate's estate be distributed under a parentelic system?

Answer: Because Intestate is not survived by a spouse, a descendant, or a parent, Intestate's entire estate passes to grandparents and second-line collaterals. The estate is initially divided in half with one-half passing to each side of Intestate's family. Because both of Intestate's paternal grandparents are still alive, each of them receives an equal portion of this share, or one-quarter of Intestate's estate. The half passing to the maternal side of Intestate's family passes to second-line collateral relatives because both maternal grandparents are deceased. The maternal grandparent's moiety is divided at the level of aunts and uncles with one share created for each survivor and one share for each predeceased member who left surviving descendants. Thus, there is a total of two shares, each of which represents one-quarter of Intestate's estate. Maternal Uncle, as a survivor, takes one of the quarter shares, and Maternal Aunt's share is divided between Cousin One and Cousin Two with each receiving one-eighth. Note that under these facts, the result is the same regardless of whether the jurisdiction uses per stirpes, per capita with representation, or per capita at each generation because the first relevant generation (aunts and uncles) is the same as the first generation with survivors (Maternal Uncle) and only one member of this generation has predeceased Intestate (Maternal Aunt) with surviving descendants (Cousins One and Two).

Client explains that he was approached by Parent. Parent's estate is worth $500,000, and Parent wants the bulk of the estate to pass to Preferred Child, Client's only sibling. Parent offered Client $100,000 in cash if Client executes a contract releasing all claims to Parent's intestate estate. How do you advise Client, assuming you are in a jurisdiction that enforces this type of contract?

Answer: Client may be well advised to execute the contract. Client would then receive a certain $100,000 although giving up whatever other rights Client may have in Parent's estate. If Client does not agree, Parent could simply make a will leaving everything to Preferred Child. Unless Client successfully contested the will, Client would receive nothing from Parent. In many jurisdictions, Parent runs the risk that Client may die first and be survived by descendants who outlive Parent. These descendants would take from Parent's estate by representation. The contract between Parent and Client would not prevent Client's descendants from receiving their intestate shares because they were not parties to the contract. On the other hand, in some states, Client's release would act to bind Client's descendants.

Intestate died on May 1, survived by Son and Daughter. Overcome by grief, Son committed suicide on May 4, survived by Spouse, Grandson, and Granddaughter. Son died with a valid will leaving his entire estate to Spouse. Intestate's distributable probate estate is valued at $100,000. What is the proper distribution of Intestate's estate assuming the jurisdiction has a 120-hour survival requirement?

Answer: Daughter receives $50,000, Grandson receives $25,000, and Granddaughter receives $25,000. Because Son did not survive by 120 hours, Son is treated as if he had predeceased Intestate. None of Intestate's property is in Son's estate, so Spouse has no claim to Intestate's property. Instead, the $50,000 that Son would have received had he outlived Intestate by 120 hours passes as if Son had died first. Thus, Son's two children take by representation with each receiving $25,000.

Intestate had two children, Son and Daughter. Son predeceased Intestate survived by two children of his own, Arthur and Brenda, both of whom survived Intestate. How would Intestate's property be distributed applying a per capita with representation distribution?

Answer: Daughter receives one-half, Arthur receives one-quarter, and Brenda receives one-quarter. Although this is the same answer as under a per stirpes distribution, the reasoning is significantly different. The key issue is to determine at what level Intestate's estate is initially broken into shares. Under per stirpes, the level of children is always used because it is the first level below that of Intestate. However, under per capita with representation, shares are divided at the children level because it is the first level with a member who outlived Intestate. It is only a coincidence that the result is the same in this example under both per stirpes and per capita with representation.

Intestate had three children, Son One, Son Two, and Daughter. Son One predeceased Intestate survived by two children of his own, Arthur and Brenda, both of whom survive Intestate. Son Two also predeceased Intestate, but Son Two had no surviving descendants. How would Intestate's property be distributed applying a per stirpes distribution?

Answer: Daughter receives one-half, Arthur receives one-quarter, and Brenda receives one-quarter. If Son One had survived, Son One would have received one-half of the estate. This one-half is divided equally between Son One's descendants, Arthur and Brenda, with each getting one-quarter of Intestate's estate (one-half each of Son One's one-half). No share is created for Son Two because Son Two was not survived by a descendant, and thus Son Two has no one to represent him.

Marsha and Fred were married in 2010, and they had one child, Chris. After divorcing in 2014, Marsha married Henry. Henry wanted to adopt Chris, but Fred refused to consent. If Henry dies intestate, may Chris inherit? Does it matter how old Chris is when Henry dies?

Answer: In the vast majority of states, Chris would not be an heir because Chris is neither Henry's biological nor adopted child. Chris may argue that he is an equitably adopted child, as discussed in §3.2.4, but that argument is weak because Henry did not fail to do something that would trigger an equitable estoppel remedy. However, in a few states, such as California, a stepchild may inherit from a stepparent if the relationship began while the stepchild was a minor, continued during their joint lifetimes, and there is clear and convincing evidence that the stepparent would have adopted the person but for some legal barrier such as, in this example, Fred's refusal to consent. If Henry dies after Chris reaches the age of majority, Henry's other heirs may claim that Chris cannot inherit because the legal barrier did not exist when Henry died. Chris was an adult and could have consented to the adoption; Fred's approval was no longer required.

Intestate dies survived by Mother, Brother, and Sister. How is Intestate's estate distributed?

Answer: Jurisdictions are divided on the appropriate resolution of this situation. Some statutes mandate that Mother would inherit the entire estate as the surviving parent. This is the approach adopted by UPC §2-103. On the other hand, some states provide for the deceased parent's share to pass to Intestate's siblings. Under this type of statute, Mother would take one-half of the estate with Brother and Sister each taking one-quarter. Chapter 2 PowerPoint: Slide 23 Rule: If only one parent survives the decedent, 1/2 passes to that parent and the other 1/2 passes to the decedent's borther and sister or their descendants.

H and W are married and have two children. Thereafter, they divorce, and H marries W2. W2 adopts A and B. Thereafter, W2 becomes pregnant. H dies unexpectedly during the seventh month of W2's pregnancy, and W2 dies two months later while giving birth to C. One year later, A dies intestate, with no surviving spouse or issue. Who takes A's property under the modern trend/UPC approach?

Answer: The order of takers under intestacy is surviving spouse, issue, parents, and issue of parents. Here, the facts say that A has no surviving spouse or issue. A's genetic parents are W and H. H predeceases A, so H is not an eligible taker. W survives A, but W2 adopted A and B. Normally adoption establishes a parent-child relationship between the adoptive parent and the child and severs completely the relationship between the genetic parent and the child. But if the adoption is by a stepparent, there is a widely recognized exception that provides that the adoption severs the right of the genetic parent who is not married to the stepparent to inherit from the child, but the child can still inherit from that genetic parent. Here, though, because it is the child who predeceased the genetic parent, the exception is not applicable and the general adoption rule controls. W, the genetic parent, cannot inherit from A, and both of A's legal parents (H and W2) predeceased A. The next possible takers are the issue of A's parents. B is a whole-blooded sibling. Although H died before C was born, because H and W2 were married, it is presumed that C is H's child. Relative to A and B, C is a half-blooded sibling. Under the modern trend/UPC approach, there is no distinction between half-blooded and whole-blooded siblings. B and C will split A's estate equally.

Intestate had two children, Son and Daughter. Son predeceased Intestate survived by his only child, Arthur. Daughter properly executed a disclaimer. Daughter has two children, Brenda and Charles. Intestate's distributable probate estate is valued at $100,000. What is the proper distribution of Intestate's estate assuming the state has a per capita with representation descent and distribution statute?

Answer: Under the generally accepted application of disclaimer laws, Arthur receives $50,000, Brenda receives $25,000, and Charles receives $25,000. If Daughter had not executed the disclaimer, Daughter would have received $50,000 and Arthur, representing Son, would have received $50,000. Although Daughter executed a valid disclaimer, only the property subject to the disclaimer passes as if Daughter predeceased Intestate. Thus, $50,000 passes as if Daughter died first and was survived by Brenda and Charles. Under the law of most states and UPC §2-801, Brenda and Charles will be unable to claim a per capita share in Intestate's entire estate, which would have entitled each grandchild to $33,333. In other words, Brenda and Charles cannot treat Daughter as if she predeceased Intestate with respect to the entire estate and trigger a different type of distribution. Only the disclaimed property passes to alternate heirs. An argument may be made under some disclaimer statutes that Daughter's one-half interest is now divided among Arthur, Brenda, and Charles because if Daughter had actually predeceased, all three would have shared in the $50,000. This interpretation of treating Daughter as predeceasing is not usually followed. When a disclaiming heir has descendants, the courts do not permit one heir (Daughter) to disclaim and thereby manipulate the shares of the other heirs (Arthur); the disclaimer simply makes other more distantly related relatives of Intestate into heirs (Brenda and Charles), and they take the disclaimed property.

Tracy is a wild and crazy kind of guy, enlisting in the navy so he can have them pay to ship him around the world. He is an "old-fashioned" kind of sailor, liking to believe that he has a girl in every port. Lulu claims that Tracy is the father of her child, but Tracy refuses to acknowledge that the child is his. Tracy moved on, and Lulu raised the child, Sunshine, on her own without any help from Tracy. Sunshine grew up to have a very successful musical career, only to die in a plane crash. Tracy has stepped forward and now asserts his right to inherit from his daughter, Sunshine. Who takes Sunshine's property under the modern trend/UPC approach?

Answer: Under the modern trend/UPC approach, before a genetic parent or relative of a genetic parent can inherit from or through a child, the genetic parent must acknowledge and support the child. Tracy neither acknowledged nor supported the child. He will not be entitled to take from her estate if she dies intestate. Lulu would take all of her property.

Harry and Whilma are married. The have two grown children, Ann and Bill. Ann has two children, Ned and Mary. Bill has one child, Fred. Harry also has a child, Pat, from a prior marriage. Pat has one grown child, Tom. Harry dies intestate. Pat always liked Whilma and is concerned that now that Harry is dead, she might not have enough money to get by. Pat disclaims his right to take any property from Harry's estate. Who takes how much under the modern trend/UPC approach?

Answer: Under the modern trend/UPC approach, one of the variables in determining the surviving spouse's share is whether the decedent has surviving issue, and if so, whose issue they are. Where not all the decedent's issue are also the surviving spouse's issue, the surviving spouse takes the first $150,000, plus 50 percent of the rest of the decedent's probate estate. The issue will split the remaining 50 percent. Here, Whilma would take the first $150,000 and 50 percent of the rest of Harry's probate property. Ann, Bill, and Pat would split the remaining 50 percent. But Pat has disclaimed. The question becomes what effect, if any, Pat's disclaimer has on who takes how much. The legal effect of a disclaimer is to treat the party who disclaims as if he or she predeceased the decedent. At first blush, it might look like all Harry's surviving issue are now issue of Whilma, so she should take all Harry's property. But Pat's child, Tom, steps up to take Pat's share by representation. Pat's disclaimer does not have the consequences Pat intended because Pat did not take into consideration that Pat's child would take Pat's share by representation. Whilma still takes only the first $150,000 and 50 percent of the rest, and the other 50 percent will be split equally among Ann, Bill, and Tom.

Two brothers, Brian and Terry, were in an automobile accident. Brian's will provides that his entire estate passes to Terry, or if Terry has predeceased, to his friend Arthur. Terry has no will and only one heir, his daughter, Victoria. Brian died immediately; 110 hours have passed, and the doctor is considering pronouncing Terry dead and removing the life support equipment. The equipment could keep Terry "alive" for at least another ten hours. Victoria and Arthur are at the hospital. Assuming that a 120-hour survival period applies, what does each person want and why? Whose request should the doctor honor?

Answer: Victoria wants Terry kept alive beyond the 120 hours. Terry could then take under Brian's will and upon Terry's death, Victoria would receive the property through intestacy. On the other hand, Arthur wants Terry to die before the 120-hour period expires so Terry will be treated as predeceasing Brian. The property would then pass to Arthur under Brian's will. There is no easy answer to the doctor's dilemma, which involves ethical questions from both legal and medical perspectives.

Henry the Eighth marries Anne Boleyn and has a daughter, Elizabeth. Anne dies, and Henry marries Jane Seymour. Henry and Jane have two children, Edward and Margaret. Henry, Jane, and Edward are killed when the boat taking them on a trip to Scotland sinks. Edward dies intestate, and his only living relatives are his full sister, Margaret, and his half-blood sister, Elizabeth. How will Edward's estate be split, under the majority rule?

Elizabeth and Margaret would split the estate 50-50. That's because the majority rule treats half-bloods the same as whole-bloods for purposes of intestacy. MINORITY RULE: Half-bloods take only half of what full-bloods would take. In such a jurisdiction, that would mean Elizabeth would take 1/3 of the estate, and Margaret would get 2/3. UPC §2-107.

Grandma Walton has two children, John and Fred. John has two children, John Boy and Sue Ellen. John wants $50,000 to set up a television studio on his property, Walton's Mountain. Grandma Walton gives him the money, in return for a release of expectancy; that is, a release of any claim to her estate. He dies the following year in a freak boom accident at the studio. Five years later, Grandma dies intestate, leaving Fred and John's two children, John Boy and Sue Ellen, as her only heirs. Her estate is worth $120,000. Who gets what?

Fred gets the whole thing, because of John's release of expectancy. A release of expectancy is an heir's forfeiture or release of his intestate share of the decedent's estate. It's valid if it's accompanied by fair consideration. In this case, it was, because John got $50,000 in return, and his share of the estate would be worth $60,000 (the discrepancy would not be considered large enough to void the release). The focus here is on the effect of a release of expectancy on the releaser's heirs. The rule is that the release is binding on the heirs of the releaser. Simpson v. Simpson (IL 1885). Rest3d Prop §2.6 Comment j (1998)

Mike Brady has three sons, Greg, Peter, and Bobby. Peter wants to take singing lessons, and Mike gives him $6,000, with a note saying that this is an advancement against Peter's inheritance. When Mike dies intestate, he leaves an estate of $9,000. Among Greg, Peter, and Bobby, who gets what, and from whom?

Greg and Bobby each get $4,500 from the estate. Peter doesn't get anything, but he doesn't have to give back any money, either. This question illustrates the situation in which an heir's advancement exceeds the heir's share in the intestate's estate. The standard calculation involving advancements highlights the problem. The advancement is added back into the estate to figure out the shares. That would mean adding Peter's advance of $6,000 to the $9,000. That leaves a total estate of $15,000 to be divvied among the three boys, giving them $5,000 each. But Peter already received $6,000! In that case, the rule is that the recipient of the advancement gets nothing, but doesn't have to pay anything back either—so Peter doesn't have to return the $1,000 that exceeds his share of the estate. Instead, Greg and Bobby split the remaining estate of $9,000, giving them $4,500 each.

Snow White marries Dopey, and they have two children, Sleepy and Grumpy. Grumpy's negative self-image prevents him from forming a happy marital relationship, but Sleepy manages to marry and have two children, Happy and Bashful. Dopey dies. Sleepy wants to invest in a new amphetamine invented by Speedy. He gives Speedy his right to inherit from Snow White in return for a share in the invention, worth $50,000. (This is a valid transfer of expectancy.) Sleepy dies two weeks later when he falls asleep at the wheel. That leaves Snow White, her son Grumpy, Sleepy's two children Happy and Bashful, and Sleepy's assignee of his right to a share in Snow White's estate, Speedy. Snow White dies intestate, leaving an estate worth $100,000. Who gets what?

Grumpy gets $50,000, and Happy and Bashful get $25,000 each. Speedy may be out of luck. Why? Sleepy may be entitled only to assign away what he's got, which is the right to take a portion of Snow White's estate upon her death. But if he doesn't survive her, he takes nothing. And so that's what he assigns—nothing. Therefore, by predeceasing Snow White, Sleepy isn't entitled to take anything on her death, and Speedy gets nothing. That leaves Grumpy with a half-share in Snow White's estate, which is $50,000. Happy and Bashful split Sleepy's half-share in Snow White's estate (by the rules of distribution per stirpes), meaning they get $25,000 each. Habig v. Dodge (IN 1895). RELATED ISSUE: A contrary decision might be reached if Sleepy's contract with Speedy included a clause that said the assignment would be binding "on the estate and heirs" of Sleepy. In that case, Speedy would get Sleepy's share. So the estate would give $50,000 to Grumpy and $50,000 to Speedy. But that's only because the assignment is a contract, and the contract is binding on Sleepy's children because of the clause.

When she was a few months old. both of Marina's birth parents died in an automobile accident. Marina's aunt took care of her for three months and then entrusted her to Maria and Jorge, a married couple who lived in the same town. They had no children of their own, and although there was never any legal recognition of their custody of Marina, they treated her as their daughter and she treated them as her parents. Marina did not know that they were not her birth parents until she was in her late teens. When Marina was 30, Maria died intestate with Jorge as her only heir. Five years later, Jorge died intestate; his heirs were cousins he hadn't seen since childhood. Can Marina inherit Jorge's probate estate as his equitably adopted child?

If equitable adoption is part of the law of the state of Jorge's domicile, whether or not it will apply to Marina depends on whether or not she can show that the facts of her situation match the legal requirements for equitable adoption. Even though she and Jorge behaved in every way as father and daughter, she may have to prove more, such as an unfulfilled promise by Maria and Jorge to adopt her, or that they intended to adopt her but did not. She may also have to prove these facts by clear and convincing evidence. NOTE: Even if Marina were found to be Jorge's equitably adopted child and thus his heir, if she had died intestate, unmarried and without descendants, but survived by Maria and Jorge, they could not use equitable adoption to inherit from Maria; the doctrine applies only to inheritance by the child.

Intestate had three children, Arthur, Brenda, and Charles. Intestate made a $100,000 advancement to Arthur. Arthur died survived by his two children, Sam and Susan. Subsequently, Intestate died with a distributable probate estate of $500,000. What is the proper distribution of Intestate's estate?

In Texas, a lifetime gift or non testamentary transfer is considered an advancement against an heir's intestate share only if the intention to have it so treated is declared in a contemporaneous writing by the donor or acknowledged in writing by the donee-heir. The modern view adopted by UPC § 2-109(c) is that the advancement is not considered, and hotchpot does not occur, unless the advancer specified in writing that the advancement is to be brought into hotchpot even if the advance predeceases the advancer. Here, Brenda and Charles would each receive 1/3 of intestate's probate estate (approximately $166,666) while Sam and Susan would each receive 1/6 (approximately $83,333).

Intestacy: An Estate Plan by Default (Overview)

Intestacy statutes distribute a decedent's probate property when no valid will exists. The recipients of such property are some—but not all—of the decedent's family members. Which family members receive how much is what intestacy statutes are all about. Intestacy law is vital to understand not only because large numbers of people die without leaving valid wills, but also because the terms and definitions used in intestacy statutes are often the same ones used in wills and trusts. In addition, because society's definition of what defines a "family" continues to evolve, so must the law's, making intestacy a legal barometer of sorts, registering changes that affect all of us.

Wife kills Husband and then takes her own life. Husband is survived by children from his first marriage and Wife is survived by children from her first marriage. Under the applicable law that applies to probate and nonprobate property, the slayer is treated as having predeceased the victim. Wife was the beneficiary of a life insurance policy on Husband. Her children are named as contingent beneficiaries who will take if she does not survive Husband. Do Wife's children take the death benefit under the insurance policy?

It depends. There is no generally accepted rule. In some jurisdictions the descendants of the slayer are also disqualified, in some the answer depends on whether the victim was testate or not, and in others courts decide on a case-by-case basis. The UPC does not expressly address the question.

What does it mean if you die "intestate"?

It means that you died without a valid will. NOTE: If you die intestate, your property is distributed among your heirs according to your jurisdiction's intestacy statute. UPC §2-101.

What is an "intestacy statute"?

It's a statute that determines who gets your probate property if you die without a valid will—that is, if you die "intestate." Every state has an intestacy statute that details who gets what. As a rule of thumb, the people most closely related to you, like a spouse, children, or parents, will get your probate property before your third cousins twice removed. UPC §§2-103, 2-106, 2-107.

What does the term "next of kin" mean?

It's used to determine who gets what when a person dies intestate. Statutes of intestacy typically say that the person's property goes to his/her "next of kin." The way you calculate your "next of kin" is to look at which people stand at the same closest degree of consanguinity, or blood relationship, to you. By way of example, your parents are one degree of consanguinity from you. Your grandparents are two degrees of consanguinity from you (first degree, you to your parents; second degree, you to your grandparents). Your children are one degree of consanguinity from you. And your grandchildren—what a surprise—are two degrees of consanguinity from you (first degree, you to your children; second degree, you to your grandchildren). UPC §§2-103, 2-106, 2-107.

PARTIAL INTESTACY

Partial intestacy occurs when (1) a will does not dispose of all of the testator's probate property or (2) when a negative will excludes an heir from taking any property, but all inheriting heirs die before the disinherited heir does. Under the common law, negative words intended to disinherit someone do not override the intestacy statute if the will does not make an otherwise effective gift of the probate property. Today, however, the law of many states, often by adopting UPC §2-101, gives effect to negative wills by treating a disinherited party as if he had died before the testator. Restatement (Third) of Property (Wills and Other Donative Transfers) §2.7 also expressly authorizes negative wills and therefore reverses the common law rule.

What is the legal status of children of a child born through artificial insemination?

Legislation in a vast majority if not all of the states says that the child is the child of the mother and if the mother is married and her husband consents to her artificial insemination the child is his child, too. The sperm donor has no rights over or obligations to the child, at least, not if the donor is anonymous. In such a case the mother has used the services of a sperm bank to procure the semen sample used in the artificial insemination. There is no need for the husband to adopt the child, and the child is related to all of its parents' relatives just as any other birth or adopted child of the couple. Although these statutes do not mention children conceived through in vitro fertilization, the same rules seem to usually apply. A birth certificate naming the birth mother and her husband as parents would be conclusive. NOTE: UPC §2-120 provides a complete scheme for establishing the legal status of children of assisted reproduction. The presumption that the husband of the birth mother is the father of the child exists only if he provided the sperm used and the child is conceived in his lifetime, but a birth certificate presumptively establishes the child's parentage. Otherwise, parentage depends on acting as a parent within two years of the child's birth. UPC §1-120(d), (e), (f)

Jane had two children, Will and Mark, by her first marriage. After the death of her first husband, she remarried and had one child, Kane, by her second husband, Steve. Jane then died. One year later, Mark died intestate. Mark was survived only by Will and Kane. Steve is still alive. How should Mark's estate be distributed? a. To Will. b. To Will and Kane, in equal shares. c. One-third each to Steve, Will, and Kane. d. One-half to Steve; one-fourth each to Will and Kane.

NOTE: this answer is not the same for TEXAS. Will and Kane would NOT inherit equally. Kane (a half-blood) would receive half as much as Will. b. To Will and Kane, in equal shares. Rationale for Correct Answer: Relatives of the half-blood inherit the same as if they were of the whole-blood. (UPC §2-107.) Although Kane is a half-brother of Mark (i.e., they share only one common parent), he is entitled to inherit from Mark just as if he were a whole-blood brother. Mark died without surviving issue or parents. (Steve is not Mark's parent, because that term excludes any person who is only a stepparent. [UPC §1-201(32).].) Therefore, Will and Kane as Mark's brothers share Mark's estate equally. (UPC §2-103(a)(3).) Choice A is incorrect since Kane is entitled to inherit equally with Will. Choices C and D are incorrect because Steve is not related to Mark in the degree required by the principles governing intestacy. Note: Texas treats whole and half bloods differently!! (Chapter 2, slide 30) Rule: Collateral kin of the half blood (with only one common parent) inherit only half as much as relatives of the whole blood. TEC § 201.057

Norman Bates kills his mother by lacing her oatmeal with arsenic. He is convicted of murder. She dies without a will. Can he inherit anything from her estate?

No. In most states, anyone who intentionally kills the decedent cannot inherit from that person by intestate succession. COMPARE: Say that the killing was voluntary manslaughter instead of murder. Some states would bar Norman from inheriting, but others would not. The UPC approach would bar anyone who "feloniously and intentionally" kills the decedent from inheriting. COMPARE: What if Norman were acquitted of the murder or other intentional killing? Some states would still bar Norman from inheriting, if there was proof before the civil court by a civil standard of proof that he committed the killing. Some states use the standard civil "preponderance of the evidence" standard, and others use the stricter "clear and convincing evidence" standard. UPC §2-803(g).

Patrick learns he has cancer. There is a high probability that his treatment will cause him to be sterile. He and his wife, Debbie, agree to bank some of his sperm just in case. While they are on the way to the spverm bank, they are in a bad accident. Patrick sustains severe head injuries and slips into a coma. While he is in a coma, Debbie has some of his sperm extracted. Tragically, Patrick never recovers from his injuries and dies. Shortly thereafter (and while his estate is still open), Debbie has herself artificially inseminated with his sperm and becomes pregnant. Is her child, Patrick Jr., entitled to share in the distribution of Patrick's estate?

Posthumuous Heirs Rule: No right of inheritance accrues to a person unless the person was born before or was in gestation at the intestate's death and survived for at least 120 hours. A person is presumed to have been in gestation if born within 300 days after the intestate's death. TEC § 201.056 Assisted Reproduction Rule: A person is considered to have been in gestation at the intestate's death if insemination or implementation occurred BEFORE the intestate's death. Chapter 2: Slide 41 Answer: Whether Patrick Jr. can take from Patrick's estate depends on the jurisdiction's approach. Under the Uniform Status of Children of Assisted Conception Act, a posthumously conceived child is not treated as a child of the deceased parent. Under the Restatement (Third) of Property, and some state statutes, a posthumously conceived child can be treated as a child of the deceased parent if the deceased parent consented to the posthumous conception. Here, while it is clear that Patrick consented to the banking of his sperm (he and his wife had agreed to it, and they were on the way to the sperm bank), it is unclear whether Patrick consented to using it only during his life or also after his death. Even assuming the latter, in some states, the consent must be in writing, and some states require it to be witnessed. Here, there is no evidence of a writing. If the jurisdiction requires that the consent be in writing, Patrick Jr. is not entitled to participate in the distribution of Patrick's estate (unless Patrick's will expressly provided for it). If the jurisdiction does not require the consent to be in writing, it depends on whether the court finds that Patrick's intent in banking the sperm included posthumous use. (There may be other requirements, depending on the jurisdiction.)

David and his wife, Marian, are both in their 70s and David's health is failing. David receives income from a trust created by an uncle, which is to terminate on David's death and be distributed to his issue, but he has never had children and the trust property will therefore go to the issue of his sister. Because David and Marian have relied on the trust income to pay their basic expenses, David adopts Marian with the hope that as his child she will get the trust property on his death. Will this adult adoption have the desired effect?

Some courts would say yes. The standard rules of adoption say that adopted children are treated the same as birth children when it comes to benefiting from wills and trusts, and some courts make no distinction between persons adopted as children and those adopted as adults. However, you're not talking about the standard adoption here; you're looking at an adoption intended to make Marian the remainderperson of the trust. Some courts would hold that the creator of the trust did not intend to benefit persons adopted into the family as adults, especially where the purpose of the adoption was to make the adopted person a beneficiary. Other courts would hold that all adoptions are to be treated alike. N.B.: Under UPC §2-705(f), an adopted person is a child of the adoptive parent for purposes of a gift to a class like the one to David's issue in a will or trust of a family member other than an adoptive parent only if the person was adopted before age 18, was the stepchild of the adoptive parent, or the adoptive parent functioned as the adoptee's parent before the adoptee reached age 18.

O.J. and Nicole are married. They own Brentwood estates as joint tenants. They both have life insurance policies, with the other as sole beneficiary. They also have wills leaving all their probate property to their surviving spouse. Nicole is found dead one night, her throat slashed. Nicole is survived by O.J. and her parents. O.J. is tried for her murder, but he is acquitted. In a related civil case, however, he is found responsible for her wrongful death. What is the most likely result as to who gets her property?

Texas Slayer Rule - Murder by Heir or Beneficiary 1. Beneficiary who kills insured forfeits proceeds or life insurance policy. 2. Constructive trust imposed to prevent killer's unjust enrichment. Chapter 2: Slide 45 Under the homicide doctrine, if one is civilly responsible for the intentional and felonious murder of the decedent, the killer is not entitled to receive any of the decedent's property, be it nonprobate, probate testate, or probate intestate. The general rule is to treat the killer as if he or she predeceased the decedent. The issue of whether someone intentionally and feloniously killed the decedent, for purposes of determining distribution of the decedent's property, is a civil issue to be determined by a preponderance of the evidence. The civil finding that O.J. was responsible for Nicole's wrongful death is probably sufficient to bar O.J. from taking the proceeds of her life insurance policy or from taking under her will. As for the joint tenancy, it is converted into tenancy in common. O.J. will keep his half, and her half will fall into probate, where it will be distributed with the rest of her probate property as if he predeceased her.

What property is disposed of by the intestacy statute if a person dies intestate?

The intestacy statute disposes of the decedent's probate property, which is property that can be transferred only by the decedent. Some examples of probate property are real estate, title to which is in the decedent's name alone; a checking account whose checks can be signed only by the decedent; a brokerage account titled in the decedent's name alone; and a bank account or certificate of deposit from which only the decedent can make withdrawals. N.B.: If a person dies testate, the will disposes of the testator's probate property. Any property not disposed of by the will passes according to the intestacy statute. UPC §2-101

If not all intestacy statutes are exactly alike, how do we know which statute governs a decedent's estate?

The intestacy statute that applies is the intestacy statute of the decedent's domicile, the place which we consider to be our home and to which we always intend to return no matter how long we are away. NOTE: When the probate estate includes real property, the real property is governed by the intestacy statute of the state where the real property is located.

What is the legal status of a child of born from posthumous reproduction?

There is no easy answer. Several cases have dealt with the status of children born to a widow who has conceived using her deceased husband's sperm. Most of these cases have found that the child is the child of the mother's deceased husband. The question has almost always arisen in the context of the mother's claim for Social Security benefits, to which the surviving minor children of a person covered by Social Security are entitled. There is a single New York case, Matter of Martin B., which held the posthumously conceived children of the son of the settlor of a series of family trusts were the settlor's grandchildren and therefore beneficiaries of the trusts. The cases holding that the child is the child of the deceased sperm donor (all of the cases have involved the use of sperm from a deceased male) and the small number of statutes dealing with the issue require that the person whose sperm or ova are used in posthumous concept during life agree to the use of the stored gametes to conceive a child after the person's death. Most of the statutes (for example, California Probate Code §249.5) and the Uniform Parentage Act (§707) require that the consent be in writing. Restatement (3d) of Property (Donative Transfers) §2.5 and UPC §1-121 require only that consent be indicated in some way, and the UPC provision presumes the requisite consent where the woman giving birth to the child is the widow of the sperm donor. Under the UPC the child is an heir of the deceased donor of the sperm or ovum only if conceived not later than 36 months after the donor's death or born not later than 45 months after the person's death. Matter of Martin B., 841 N.Y.S.2d 207 (Sur. Ct. 2007) UPC §1-120(k); Rest3d Prop §2.5 Comment l; UPC §2-121

Grandpa Munster has two children, Fester and Herman. Herman has two children, Eddie and Phoenicia. Herman has an idea he wants to patent for a gizmo called "instant water" for campers—"just add water." Grandpa gives him $10,000 to patent it, with a note saying that the money is an advancement against Herman's inheritance. Herman dies when the hearse he drives spontaneously combusts with him in it. Then Grandpa dies intestate, leaving an estate of $30,000. His only three heirs are Fester, Eddie, and Phoenicia. We'll give you this much: Eddie and Phoenicia split Herman's share. However, how much will they get?

They'll get $5,000 each. The issue here is the effect of an advancement when the recipient predeceases the donor, which is what happened when Herman predeceased Grandpa. The traditional rule is that the heirs who take through the recipient have their shares in the estate reduced by the amount of the advancement. So here's the calculation. You add back the value of the advancement to the estate, $30,000 plus $10,000, for a total of $40,000. That would leave $20,000 for Fester, and $20,000 to be split between Herman's two children, Eddie and Phoenicia. (Remember, the rules of determining shares among descendants call for a per stirpes distribution when the heirs are in different generations, as they are here.) The $20,000 share to Eddie and Phoenicia is reduced by the $10,000 advancement to Herman, so that they split $10,000. That leaves them $5,000 each. This is the majority view. MODERN AND UPC VIEW: The modern view says just the opposite of the traditional view; that is, if the recipient predeceases the donor, the advancement has no effect on the shares in the estate unless the donor's contemporaneous note says that it does. This is also what the UPC provides. UPC §2-109(c).

Here are Popeye and his next of kin, at the time of Popeye's untimely death at the hands of a spinach-processing machine run amok: Popeye sweet pea dorothy (Popeye's children) BABBOO toto (Popeye's grandchildren) LASSI FLIPPER (Children of Bamboo) Any name in lowercase letters denotes that the person died before Popeye Assume Popeye dies intestate, who are Popeye's heirs?

Under every intestacy statute in the United States, Babboo is Popeye's sole heir (if Popeye was not married at death) or takes the entire intestate estate that passes to Popeye's descendants. Lassie and Flipper are descendants of Popeye, but their parent who is also Popeye's descendant has survived Popeye. If they look up the family tree toward their grandfather, there is a living person in the way: their parent. That means that their parent, Babboo, is their grandparent's heir and they are not.

Father and Mother have one child, Andrea. Father and Mother die in a motor vehicle accident and Andrea is adopted by Mother's sister, Auntie Em, and her husband, Uncle Joe. What are Andrea's inheritance rights from her birth parents and her adoptive parents?

Under the law of most states, Andrea will inherit from her adoptive parents, Auntie Em and Uncle Joe, just as would a birth child of Em and Joe. However in a small number of states and under the newly revised UPC §2-119, Andrea inherits in her birth relationships, that is, from and through Mother and Father (referred to in the UPC as Andrea's genetic parents because she was conceived through the union of Mother's ovum and Father's sperm) because she was adopted by a relative of her birth parents (under the UPC limited to grandparents and descendants of grandparents). Therefore, if Father's parent dies intestate, Andrea inherits as parent's descendant even though she has been adopted by people unrelated to her father. In addition, she inherits from Mother's family (with the exception of Auntie Em, her adoptive mother) as Mother's child. Therefore, if Mother's parent dies intestate, Andrea will inherit as Mother's child and will share in the intestate estate even though Em and Joe's birth children and other adopted children will not if Em is alive. In effect, Andrea has three sets of grandparents for inheritance purposes: Father's, Mother's, and Joe's, and inherits from and through all of them. UPC §2-119

Here is the family tree of an unmarried, intestate descendant: A, B, C, and D are X's children; 1, 2, 3, and 4 are A's children; 5, 6, and 7 are B's children; 8 and 9 are D's children; a and b are 1's children; c, d, and e are 4's children; f is 5's child; g, h, i, and j are 7's children; k and l are 8's children; and m is 9's child. A, B, D, 2, 5, 7, 9, f, and k have died before X.How is X's intestate estate distributed under modern per stirpes (per capita with representation) system of representation?

Under the modern per stirpes system the division of the intestate estate begins at the eldest generation of the decedent's descendants in which someone is alive. Because one of X's children (C) did survive X, the result is the same as that under the per stirpes system because the division begins in the children's generation. That means the intestate estate is divided into four parts; C gets one of those parts, and each part set aside for a deceased child of X "falls down" the child's family tree. 1, 3, and 4 get 1/3 of 1/4, or 1/12 each; 6 gets 1/2 of 1/4, or 1/8; g, h, i, and j get 1/4, of 1/8, or 1/32 each; 8 gets 1/2 of 1/4, or 1/8; and m gets 1/2 of 1/4, or 1/8.

Here is the family tree of an unmarried, intestate descendant: A, B, C, and D are X's children; 1, 2, 3, and 4 are A's children; 5, 6, and 7 are B's children; 8 and 9 are D's children; a and b are 1's children; c, d, and e are 4's children; f is 5's child; g, h, i, and j are 7's children; k and l are 8's children; and m is 9's child. A, B, C, D, 2, 5, 7, 9, f, and k have died before X. How is X's intestate estate distributed under modern per stirpes (per capita with representation) system of representation?

Under the modern per stirpes system the division of the intestate estate begins at the eldest generation of the decedent's descendants in which someone is alive. That gives a different result from that under the per stirpes system; the division begins in the grandchild's generation generation where five are alive and two are dead with descendants who survive X. That means the intestate estate is divided into seven parts, each living grandchild gets one part (1/7 of the estate). The parts set aside for the deceased grandchildren with living descendants "fall down" the grandchild's family tree: g, h, i, and j get 1/4 of 1/7 or 1/21; m gets 1/7. NOTES: 1. Because 5 and f both died before X, no share is set aside for that family line in the initial division of the estate into shares. 2. Even though all of the grandchildren who are heirs receive the same share of the intestate estate, how much each great-grandchild who is an heir receives depends on how many siblings he or she has.

Here is the family tree of an unmarried, intestate descendant: A, B, C, and D are X's children; 1, 2, 3, and 4 are A's children; 5, 6, and 7 are B's children; 8 and 9 are D's children; a and b are 1's children; c, d, and e are 4's children; f is 5's child; g, h, i, and j are 7's children; k and l are 8's children; and m is 9's child. A, B, C, D, 2, 5, 7, and 9 have died before X. How is X's intestate estate distributed under the modern per stirpes (per capita with representation) system of representation?

Under the modern per stirpes system the division of the intestate estate begins at the eldest generation of the decedent's descendants in which someone is alive. That gives a different result from that under the per stirpes system; the division begins in the grandchild's generation where 5 are alive and 3 are dead with descendants who survive X. That means the intestate estate is divided into 8 parts, each living grandchild gets one part (1/8 of the estate). The parts set aside for the deceased grandchildren with living descendants "fall down" the grandchild's family tree: f gets 1/8; g, h, i and j get 1/4 of 1/8 or 1/32; m gets 1/8. Note: Even though all of the grandchildren who are heirs receive the same share of the intestate estate, how much each great-grandchild who is an heir receives depends on how many siblings he or she has.

Here is the family tree of an unmarried, intestate descendant: A, B, and C are D's children; 1-3 are A's children; 4 is B's child; 5-8 are C's children. A and B have died before D; all the other descendants survive D. How is D's intestate estate distributed under the per capita in each generation system of representation?

Under the per capita in each generation system of representation, division of the intestate estate begins in the eldest generation in which there is a living descendant of the decedent, just as in the modern per stirpes system. However, instead of passing the share of a deceased member of that generation down that person's family tree, the shares of all of the dead members of the eldest generation are combined and divided into as many shares as there are living members of the next generation who are heirs and deceased members of that generation would have been heirs who have living descendants. In this family tree, then, C still gets 1/3 of the intestate estate, but the 1/3 shares set aside of A and B are combined (that equals two-thirds of the intestate estate) and given equally to 1, 2, 3, and 4, who now each receive 2/12, or 1/6 (1/4 x 2/3 = 2/12 or 1/6). Under this system, every person who is an heir receives the same share as every other person in the same generation who is an heir. Remember that 5, 6, 7, and 8 are not heirs because C survived D. This is the system used by the UPC intestacy statute. UPC §2-106

Here is the family tree of an unmarried, intestate descendant: A, B, C, and D are X's children; 1, 2, 3, and 4 are A's children; 5, 6, and 7 are B's children; 8 and 9 are D's children; a and b are 1's children; c, d, and e are 4's children; f is 5's child; g, h, i, and j are 7's children; k and l are 8's children; and m is 9's child. A, B, C, D, 2, 5, 7, and 9 have died before X. How is X's intestate estate distributed under the per capita in each generation system of representation?

Under the per capita in each generation system of representation, division of the intestate estate begins in the eldest generation in which there is a living descendant of the decedent, just as in the modern per stirpes system. However, instead of passing the share of a deceased member of that generation down that person's family tree, the shares of all of the dead members of the eldest generation are combined and divided into as many shares as there are living members of the next generation who are heirs and deceased members of that generation would have been heirs who have living descendants. Thus each grandchild who is an heir receives exactly the same share as under the modern per stirpes system, but the shares set aside for 5,7 and 9 are combined and distributed equally among the great-grandchildren who are heirs: f, g, h, i, j, and m each receive 1/6 of 3/8 or 3/48. NOTE: Under the per capita in each generation system, each heir receives exactly the same share of the intestate estate as every other heir in the same generation, that is, all the living grandchildren receive 1/8 and all of the great-grandchildren who are heirs receive 3/48.

Here is the family tree of an unmarried, intestate descendant: A, B, C, and D are X's children; 1, 2, 3, and 4 are A's children; 5, 6, and 7 are B's children; 8 and 9 are D's children; a and b are 1's children; c, d, and e are 4's children; f is 5's child; g, h, i, and j are 7's children; k and l are 8's children; and m is 9's child. A, B, C, D, 2, 5, 7, 9, f, and k have died before X. How is X's intestate estate distributed under the per capita in each generation system of representation?

Under the per capita in each generation system of representation, division of the intestate estate begins in the eldest generation in which there is a living descendant of the decedent, just as in the modern per stirpes system. However, instead of passing the share of a deceased member of that generation down that person's family tree, the shares of all of the dead members of the eldest generation are combined and divided into as many shares as there are living members of the next generation who are heirs and deceased members of that generation would have been heirs who have living descendants. Thus each grandchild who is an heir receives exactly the same share, 1/7, as under the modern per stirpes system, but the shares set aside for 7 and 9 are combined and distributed equally among the great-grandchildren who are heirs: g, h, i, j, and m each receive 1/5 of 2/7, or 2/35. NOTES: 1. Because 5 and f both died before X, no share is set aside for that family line in the initial division of the estate into shares. 2. Under the per capita in each generation system, each heir receives exactly the same share of the intestate estate as every other heir in the same generation, that is, all the living grandchildren receive 1/7 and all of the great-grandchildren who are heirs receive 2/35.

What is the legal status of a child born to a gestational carrier?

Where surrogacy contracts are legal, the child is usually the child of the person or persons who made the contract with the gestational surrogate, and the surrogate has neither parental rights over nor parental obligations to the child. Although procedures vary, in California, the most prominent jurisdiction recognizing surrogacy contracts that involve a payment to the gestational surrogate, the parent or parents obtain legal recognition of their parental status through a court proceeding, which is not an adoption, and the child is legally their birth child and not their adopted child. NOTE: UPC §2-121 provides a complete scheme for dealing with the legal status of children born to a gestational carrier. Under the statute, in the absence of a court order establishing the child's parentage, a parent is someone who functioned as a parent within two years of the child's birth. UPC §2-121(d)

Here is the family tree of an unmarried, intestate descendant: A, B, C, and D are X's children; 1, 2, 3, and 4 are A's children; 5, 6, and 7 are B's children; 8 and 9 are D's children; a and b are 1's children; c, d, and e are 4's children; f is 5's child; g, h, i, and j are 7's children; k and l are 8's children; and m is 9's child. A, B, D, 2, 5, 7, 9, f, and k have died before X. How is X's intestate estate distributed under the per capita in each generation system of representation?

Under the per capita in each generation system of representation, division of the intestate estate begins in the eldest generation in which there is a living descendant of the decedent. Because X's child C survived X, the initial division is into four parts, just as in the other two systems. However, instead of passing the share of a deceased member of that generation down that person's family tree, the shares of all of the dead members of the eldest generation are combined and divided into as many shares as there are living members of the next generation who are heirs and deceased members of that generation would have been heirs who have living descendants. The 3/4 set aside for the deceased children who have living descendant is divided into seven parts, one for each living grandchild and one for each deceased grandchild with living descendants. Thus each grandchild who is an heir receives, 1/7 of 3/4, or 3/28. The shares set aside for 7 and 9 are combined and divided equally among the great-grandchildren who are heirs: g, h, i, j, and m each receive 1/5 of 2/7, or 2/35. NOTE: Under the per capita in each generation system, each heir receives exactly the same share of the intestate estate as every other heir in the same generation; that is, all the living grandchildren receive 1/7 and all of the great-grandchildren who are heirs receive 2/35.

Here is the family tree of an unmarried, intestate descendant: A, B, ,C and D are X's children; 1, 2, 3, and 4 are A's children; 5, 6, and 7 are B's children; 8 and 9 are D's children; a and b are 1's children; c, d, and e are 4's children; f is 5's child; g, h, i, and j are 7's children; k and l are 8's children; and m is 9's child. A, B, D, 2, 5, 7, 9, f, and k have died before X. How is X's intestate estate distributed under the per stirpes (classic per stirpes, English per stirpes) system of representation?

Under the per stirpes system the division of the intestate estate begins at the generation of the decedent's children. One share is set aside for each living child and for each dead child who has descendants who survived the decedent. Each living child takes his or her share, and the share of a deceased child "falls down" the family tree to the child's descendants. In our family tree only one of X's children, C, survived X, and X's other three children have descendants who survived X. That means the intestate estate is divided into four parts, and each part "falls down" the child's family tree. C gets 1/4; 1, 3, and 4 get 1/3 of 1/4, or 1/12 each; 6 gets 1/2 of 1/4, or 1/8; g, h, i, and j get 1/4 of 1/8, or 1/32 each; 8 gets 1/2 of 1/4, or 1/8; and m gets 1/2 of 1/4, or 1/8. NOTES: 1. Because 5 and f also died before X the 1/4 share set aside for B's descendants is divided into two parts, one for 6 and one for 7's children. 2. Not all grandchildren and great-grandchildren who are X's heirs receive the same share as other grandchildren and great-grandchildren who are heirs. How much they receive depends on how many siblings they have.

Here is the family tree of an unmarried, intestate descendant: A, B, and C are D's children; 1-3 are A's children; 4 is B's child; 5-8 are C's children. A and B have died before D; all the other descendants survive D. How is D's intestate estate distributed under the per stirpes (classic per stirpes, English per stirpes) system of representation?

Under the per stirpes system the division of the intestate estate begins at the generation of the decedent's children. One share is set aside for each living child and for each dead child who has descendants who survived the decedent. Each living child takes his or her share, and the share of a deceased child "falls down" the family tree to the child's descendants. In our family tree there is one living child and two dead with living descendants, so C gets 1/3, 4 gets the 1/3 that was set aside for B's descendants, and 1, 2, and 3 share equally the 1/3 set aside for A (that is, 1/9 each: 1/3 x 1/3 = 1/9).

Ellen Morris recently died intestate. Her husband Ed had predeceased her. Ellen and Ed adopted a daughter, Lisa, and they also had a biological son, Tom. One year ago, Ellen gave Tom $10,000 to invest in a fast-food franchise, telling him orally that it would be deducted from his share of her estate, unless it was repaid prior to her death. A friend of Ellen was present when the conversation with Tom took place and is prepared to testify as to Ellen's statement. Ellen's net estate available for distribution is separate property of $150,000. How should her estate be distributed? a. $75,000 each to Lisa and Tom. b. $80,000 to Lisa; $70,000 to Tom. c. $150,000 to Tom; nothing to Lisa. d. $150,000 to Lisa; nothing to Tom.

a. $75,000 each to Lisa and Tom Rationale for Correct Answer: An adopted child is treated as a natural-born child for purposes of inheritance. (UPC §2-118.) Lisa will inherit equally with Tom because she was adopted by Ellen. The $10,000 will not be treated as an advancement, because the only evidence of Ellen's intent was oral. (Section 2-109(a) requires that if an individual dies intestate, advancements must be established as such either in a writing contemporaneous with the gift signed by the testator or in a written acknowledgment by the heir.) Because the condition upon Tom's gift was oral and not written, Lisa and Tom will each take $75,000. Choice B is incorrect because it assumes that the $10,000 will be treated as an advancement against Tom's share of the estate. Choice C is incorrect because it assumes that Lisa is not treated as Ellen's child for purposes of inheritance. Choice D is incorrect because it fails to provide for inheritance by Tom.

John and Betty met in Hawaii, where both were vacationing. They spent much of their time together. After they returned to their homes, Betty discovered that she was pregnant. After her child, Jennifer, was born, Betty, who had never married John, sued John to establish paternity. Although John denied that Jennifer was his child, the jury found by clear and convincing evidence that John was the father. The court entered judgment accordingly. Thereafter, John refused to acknowledge Jennifer as his child or to spend any time with her, but did pay the support ordered by the court. When John died, his will (executed prior to the birth of Jennifer) left his entire estate to ABC Charity. John was survived by Betty, Jennifer, and his parents. How should his estate be distributed? a. To Jennifer. b. To ABC Charity. c. Half to Jennifer, and the remainder to ABC Charity. d. Half to Jennifer, and the remainder to John's parents, in equal shares.

a. To Jennifer Rationale for Correct Answer: Because paternity was established prior to John's death, Jennifer is treated as his child. (UPC §2-117.) Jennifer is a pretermitted child (Jennifer was born after John had made his will). A pretermitted child (the UPC refers to an omitted child) takes as if her parent had died intestate. (UPC §2-302.) When testator is unmarried and leaves only one child, that child's intestate share is the entire estate. (UPC §2-103(a)(1).) Therefore, Jennifer receives the entire estate. Choice B is incorrect because Jennifer's claim to the intestate share as a pretermitted child supersedes the devise to ABC Charity. Choices C and D are incorrect because they do not state Jennifer's share correctly — Jennifer is entitled to the entire estate.

Mother is financially secure and very generous with her four children: A, B, C, and D. She made an unqualified gift of $10,000 to A in 2005, an interest-free loan of $10,000 to B in 2010, a qualified advance to C of $10,000 in 2015, and accepted a release from D in 2020, for which she paid him $10,000. If Mother dies in 2025 survived by all of them but no spouse or other descendants, and with a net probate estate valued at $50,000, who will take what from her intestate estate? a. A, B, C and D will each inherit ¼ of $50,000, or $12,500 apiece. b. A and B will each inherit $20,000; C will inherit $10,000; D will inherit nothing. c. A-C will each inherit 1/3 of $90,000, or $30,000 apiece. d. Only A will inherit, as the rest have forsaken their share.

b. A and B will each inherit $20,000; C will inherit $10,000; D will inherit nothing. Rationale for Correct Answer: The answer turns on characterization of the assorted inter vivos transactions between Mother and her children. "Pure" or "unqualified" gifts are truly "free." They need not be paid back; they are not deducted from an intestate share. "Loans" must be paid back; once paid to a decedent's estate, they are not again deducted from the particular borrower's share. "Advances" that qualify under applicable law (e.g., requiring a writing) need not be paid back. However, the value of a qualified advance is added to the decedent's probate estate to generate the "hotchpot," an accounting mechanism under which the hotchpot (rather than the decedent's actual estate) is distributed to the intestate heirs and any individual advances are deducted from the advancee's share. "Releases," under which a releaser exchanges any claim to an expectancy for a sum, need not be paid back and are not deducted from the releaser's intestate share—but that is because the releaser is no longer entitled to a share, in effect settling for some sum in exchange for intestate participation. Having released her share and thus "cashing out early," D may no longer participate in the distribution of Mother's estate. Therefore, A is incorrect. B's gift is "free" and is irrelevant to the calculation or distribution of Mother's estate. C's loan is similarly irrelevant. C has already paid the principal sum back to the estate. Even though its "interest free" component is a gift, C need not account for it in any form. Therefore, C and D are incorrect. Adding A's advance of $10,000 to Mother's $50,000 probate estate equals $60,000. That amount is divided equally between A, B, and C at $20,000 apiece, after which C's earlier advance of $10,000 is deducted out. Applying the principles and the math, B is the correct answer.

One year ago, Dan, an unmarried 19-year-old who was illiterate and without issue, asked his friend to write the following: I, Dan Smith, do hereby declare that this is my will. I want everything I have to go to my mother. My brother, Les, is not to get anything I own. X Witnessed: Ben Jones ... Thorp Curry The mark "X" that appeared at the bottom of the will was made by Dan in the presence of Ben Jones and Thorp Curry, who signed as witnesses. Dan died, survived only by his brother, Les, and by his grandmother, Ann Smith. Dan's mother predeceased him by one week. How should Dan's estate be distributed? a. All to the estate of Dan's mother. b. All to Dan's grandmother, Ann Smith. c. Half to Dan's grandmother, Ann Smith; half to Dan's brother, Les. d. All to Les.

b. All to Dan's grandmother, Ann Smith Rationale for Correct Answer: This is an unusually tricky question, so follow closely. Any person 18 or older who is of sound mind may make a will. Every nonholographic will must be in writing signed by the testator and by two other persons each of whom witnessed either the signing or the testator's acknowledgment of either (a) the signature or (b) that the document is a will. A mark made by the testator suffices as a signature. The will was valid because Dan was 19, he signed the document with a mark, and the execution of the will was witnessed by two witnesses. Because Dan's mother predeceased him, the gift to her fails. Under the antilapse statute, Les would normally take his mother's share, as her sole descendant — but this would happen as a substitute gift, not by having Dan's property pass through the mother's estate. (UPC §2-603.) However, the antilapse doctrine applies only [i]n the absence of a finding of a contrary intention . ... (UPC §2-601.) A court would probably conclude that the language in the will disinheriting Les manifests Dan's intent not to have the antilapse provision apply. If so, the estate would pass by intestacy because all bequests would have failed. Here, too, Les would ordinarily take, under UPC §2-103(a)(3). But again, the UPC honors the testator's wishes: UPC §2-101(b) protects a decedent's choice to expressly exclude or limit the right of an individual ... to succeed to property of the decedent passing by intestate succession. The disinheritance language here would certainly meet this test. Consequently, the estate would go to the next in line — the decedent's grandmother. (UPC §2-103(a)(4).) Choice A is incorrect, because Dan's mother predeceased him. Choices C and D are incorrect. Les takes nothing for the reasons described above.

Ann and Bob are married with two joint children: Cain and Doug. Cain and Doug each have one child apiece. Ann also has a child from a non-marital relationship—Edward—who does not have any descendants of his own. Ann, Bob, and Doug are involved in a serious accident. Ann is pronounced dead at the scene. Bob is pronounced dead three days later; Doug is pronounced dead the day after that. Cain, Cain's child, Doug's child, and Edward are arguing over the proper distribution of Ann's estate. In a jurisdiction that continues to follow the typical common law rule (which is usually the same or very similar to the original Uniform Simultaneous Death Act), who should inherit from Ann? a. Bob, Cain, Cain's child, Doug, Doug's child, and Edward will all inherit some share of Ann's estate. b. Only Bob, Cain, Doug, and Edward will inherit some share of Ann's estate. c. Only Bob, Cain, and Doug will inherit some share of Ann's estate. d. Bob alone will inherit some share of Ann's estate.

b. Only Bob, Cain, Doug, and Edward will inherit some share of Ann's estate. Rationale for Correct Answer: B is the correct answer. Typically, the common law and the original Uniform Simultaneous Death Act only required that an heir be established, by a preponderance of the evidence, to have survived by only an "instant." One fraction of an instant could be sufficient. Here, because everyone survived Ann by at least that much, all of them qualify as survivors. However, not all of them will actually inherit. Because both Cain and Doug have survived Ann, there is no need for their children to "represent" them by inheriting in addition to them, or in their place. Therefore, A is incorrect. C is incorrect because along with Cain and Doug, Edward is also Ann's descendant and is entitled to an intestate share. Modernly, Edward's being a non-marital child of Ann's does not automatically disqualify him, particularly given that most statutes demand proof of paternity, but not maternity, before children born out of wedlock can inherit. D is incorrect because, although Bob survived Ann, she has descendants who are not also Bob's. In no jurisdiction will the surviving spouse take everything in a "Cinderella Situation," i.e., one where the decedent left one or more descendants who were the stepchildren of the surviving spouse.

X has many relatives, who are related biologically as well as by marriage or adoption: 3 children, 3 grandchildren, 3 great-grandchildren, 3 parents, 6 grandparents, 6 aunts, 6 uncles, 12 cousins, and a nephew. How would those relatives be categorized for purposes of interpreting or applying "heirship" designations under intestacy schemes, and with what differences, if any, drawn? a. There are no critical distinctions drawn between relatives; all of them are considered actual or apparent "heirs," and they will all inherit equally. b. The children, grandchildren, and great-grandchildren are "descendants" (i.e. "issue") and are favored; the parents and grandparents are "ascendants" (i.e. "ancestors"); the aunts, uncles, cousins, and nephew are "collaterals" (relatives who are neither descendants nor ancestors of the decedent). c. The only categorization that is favored is that of descendants; ancestors and collaterals are always treated equally. d. The only categorizations that matter are descendants and ancestors; collateral relatives can never be heirs.

b. The children, grandchildren, and great-grandchildren are "descendants" (i.e. "issue") and are favored; the parents and grandparents are "ascendants" (i.e. "ancestors"); the aunts, uncles, cousins, and nephew are "collaterals" (relatives who are neither descendants nor ancestors of the decedent). Rationale for Correct Answer: B is the correct answer. Notwithstanding jurisdictional variation in intestate succession design, every jurisdiction draws distinctions across different types of relatives when determining heirs, and, further, every jurisdiction favors relatives who are descendants over those who are either ancestors or collaterals when making that determination. In failing to recognize these primary distinctions, A is incorrect. C and D are also incorrect. Collateral relatives (siblings, nieces, nephews, aunts, uncles, and cousins, i.e., relatives to the "side") are often heirs, and, indeed, will sometimes even hold priority in that determination over the decedent's ancestors. For example, a sibling of the decedent will usually inherit everything before a grandparent of that same decedent will inherit anything, notwithstanding that both are related to the decedent in the second degree of kinship.

When Lisa was seven years old, her parents were killed in an automobile accident. The night of the accident, her aunt and uncle, Harvey and Ann, arrived and told Lisa that she was going to go live with them and "be our little girl." Several years later, they told Lisa, "You're going to court with us so that you can be our little girl forever." Harvey and Ann held Lisa out as their daughter. She participated in every way as a member of their family. Harvey had a son, Bob, from a previous marriage. When Harvey died intestate, Ann claimed his entire estate. After consulting an attorney, Lisa found out that, while Harvey and Ann had obtained legal custody of her, there had been no formal adoption. Harvey was survived by Ann, Lisa, Bob, and Harvey's parents. How should his estate be distributed? a. The first $300,000, plus three-quarters of the balance of the estate to Ann; the remaining one-quarter of the estate to Harvey's parents. b. The first $150,000, plus one-half of the balance of the intestate estate to Ann; the remaining one-half to be divided between Bob and Lisa, equally. c. One-half of the intestate estate to Ann; the remaining one-half to be divided between Bob and Lisa, equally. d. The entire intestate estate to Ann.

b. The first $150,000, plus one-half of the balance of the intestate estate to Ann; the remaining one-half to be divided between Bob and Lisa, equally. Rationale for Correct Answer: Foster children do not ordinarily inherit from their foster parents. Section 1-201(5) of the UPC defines child so as to exclude a foster child. However, most jurisdictions recognize equitable adoption/adoption by estoppel when there is an unperformed agreement to adopt. In this case, the statement made to Lisa could reasonably have been interpreted by her as a promise of adoption. Taken together with the fact that Harvey and Ann held Lisa out as their daughter, most jurisdictions would probably treat Lisa as an adopted child by estopping Harvey's estate from denying that an adoption existed. If there are surviving descendants of the decedent, one or more of whom are not descendants of the surviving spouse, the intestate share of the surviving spouse is $150,000, plus one-half of the balance of the estate. (UPC §2-102(4).) Because Harvey left a descendant, Bob, who is not a descendant of Ann, Ann's intestate share is $150,000, plus one-half of the balance of the estate. Because Lisa would probably be considered Harvey's adopted child and his descendant, she takes one-half of the remainder along with Bob. Choice A is incorrect because it would control the distribution only if Harvey had no descendants. Choice C is incorrect in that it misstates Ann's share. Choice D is incorrect. It applies only if all of the decedent's surviving descendants were also descendants of the surviving spouse. Here, Harvey had a son by a previous marriage.

Mom died intestate. She had two daughters, Debbie and Ashley. Debbie predeceased Mom, leaving two sons surviving her, Drew and Derek. Ashley has two daughters, Pam and Patty, and two sons, Paul and Peter. At Mom's death, everyone else is alive except Debbie. Ashley disclaims her interest in Mom's estate. How is Mom's estate to be distributed? a. In equal shares to Drew, Derek, and Ashley. b. 50 percent to Ashley and 25 percent each to Derek and Drew. c. 25 percent each to Derek and Drew, and 12.5 percent each to Pam, Patty, Paul, and Peter. d. In equal shares to Drew, Derek, Pam, Patty, Paul, and Peter.

c. 25 percent each to Derek and Drew, and 12.5 percent each to Pam, Patty, Paul, and Peter. Rationale for Correct Answer: UPC §2-1106(b)(3)(A) provides that the disclaimed interest passes as if the disclaimant had died immediately before the time of distribution (emphasis added). If Ashley had not disclaimed, she would have been entitled to 50 percent of the estate. Ashley might have hoped that by disclaiming, then she would be treated as having predeceased her mother so that UPC §2-106(b) would apply and division of the estate would begin at the level of living descendants. Under this approach, the shares of her four children would be equal to the shares of Drew and Derek. However, the language of the disclaimer section refers to the disclaimed interest. Ashley's interest was 50 percent, so her share is divided among her four children, and Drew and Derek receive 25 percent each. The statute therefore prevents Ashley from increasing her family's share of the estate by disclaiming. Choice A is incorrect because Drew and Derek are at a different generational level from Ashley and would have to share their mother's share of the estate. Choice B would be correct if Ashley had not disclaimed, but because of her disclaimer she receives nothing. Choice D may have been the result Ashley was hoping for, but as explained previously, it is not the result under the UPC.

Advancements loosely can be described as "an early gift of a later intestate share." Identify which one of the statements below most correctly states the policy thrust of advancements. a. Advancement theory is designed to ensure that advancees will never "take twice" from the decedent; having received a "take" early, all advancees are barred from sharing in the advancer's intestate estate. b. Advancement theory is designed to ensure that every taker of an advance will always "take twice" from the decedent: first through the lifetime gift, and again from the intestate estate. c. Advancement theory is designed to generate rough equality between heirs by adding the value of qualified advances to the decedent's estate (the "hotchpot"), allocating an intestate share of the hotchpot to the heirs, and then subtracting any advance from any advance/heir's share. d. Advancement theory is designed to treat advancees as equal to debtors of the estate by forcing advancees to pay the amount of the advance back into the decedent's estate for sharing with all of the other heirs.

c. Advancement theory is designed to generate rough equality between heirs by adding the value of qualified advances to the decedent's estate (the "hotchpot"), allocating an intestate share of the hotchpot to the heirs, and then subtracting any advance from any advance/heir's share. Rationale for Correct Answer: The correct answer is C. Advancements are gifts that are intended to reduce the intestate share of any advancee who ends up qualifying as an heir to the decedent's estate. Loans must be repaid; gifts do not. Therefore, D is incorrect. The effect that an advance will have on the amount ultimately passing to heirs will turn on the size of that advance relative to the size of the decedent's estate and the number of heirs entitled to a portion of it. Because these factors fluctuate, it is not always true that advancees will either "never take" or "always take" a portion of the decedent's estate. Therefore, A and B are incorrect.

Henry died survived by no spouse, descendants, or biological/adoptive parents, but two stepparents and eleven siblings and step/foster-siblings with whom he is very close. Alvin, Barney, and Carlina are the children of Henry's predeceased parents, Mimi and Pop; Carlina was adopted by them in infancy. Dagmar and Edna are the children of Henry's predeceased mother, Mimi, but not his father. Feliz and Gregory are the children of Henry's predeceased father, Pop, but not his mother. Hannah, Inez, Jasper, and Kate are all either children of Henry's stepparents or foster children who are currently living and thriving in the foster home. Henry loved them all, equally. How will Henry's estate be divided? Assume that the jurisdiction has an intestacy statute providing that "siblings of the half-blood take a half-share." a. All eleven of Henry's "equally loved siblings" and his two stepparents will take an equal 1/13 share; his equal affection for them supersedes the intestate statute. b. All seven of Henry's "equally loved siblings" will take an equal 1/7 share; his equal affection for them supersedes the intestate statute. c. Alvin, Barney, and Carlina will each take a 1/5 share; Dagmar, Edna, Feliz, and Gregory will each take a 1/10 share. d. Alvin, Barney, and Carlina will each take a 1/3 share; Dagmar, Edna, Feliz, and Gregory will each take ½ of that, or a 1/6 share.

c. Alvin, Barney, and Carlina will each take a 1/5 share; Dagmar, Edna, Feliz, and Gregory will each take a 1/10 share. Rationale for Correct Answer: The correct answer is C. Although rare in modern sighting, a jurisdiction may have retained a statute treating collateral relatives (such as siblings or cousins) with whom the decedent shares only one ancestor differently than collateral relatives with whom the decedent shares two ancestors. One form of that sort of statute appears above, and can lead to appealing but mathematically unworkable answers such as that represented in D. The easiest way to complete the math per the statute is to count up all who are entitled to a share of the decedent's estate, but in doing so, to count each person entitled to a full share twice, and each person entitled to a half share, once. Here, counting Alvin, Barney, and Carlina twice = six, counting Dagmar, Edna, Feliz, and Gregory once = 4; the total = 10. Thus, Alvin, Barney, and Carlina each inherit a "double share" (i.e. 2/10 or 1/5) apiece since they were counted twice, with the others simply getting their single, 1/10 share. Note that under the modern "transplant" theory, Carlina's adoption brings her fully within Henry's family irrespective of any literal blood-based or biological connection as suggested by the statute. Note also that no matter how close Henry is to his stepparents or step/foster siblings, they rarely qualify as heirs, and they definitely do not under these facts, so A is incorrect. Henry should have written a will.

On July 1, Jim Williams died intestate from injuries received in an automobile accident. His wife Wanda died the next day from injuries received in the same accident. Jim and Wanda were survived by one child, Bob, and two grandchildren, who are the children of the deceased daughter of Jim and Wanda. Jim's net estate available for distribution is $200,000. How should Jim's estate be distributed? a. $125,000 to Wanda's estate; $37,500 to Bob; and $18,750 each to the two grandchildren. b. $125,000 to Wanda's estate; $25,000 each to Bob and the two grandchildren. c. Nothing to Wanda's estate; $100,000 to Bob; $50,000 each to the two grandchildren. d. Nothing to Wanda's estate; $66,666 each to Bob and the two grandchildren.

c. Nothing to Wanda's estate; $100,000 to Bob; $50,000 each to the two grandchildren. Rationale for Correct Answer: An heir who does not survive the decedent by 120 hours is deemed to have predeceased the decedent. (UPC §2-104.) Because Wanda is deemed to have predeceased Jim, her estate takes nothing. The deceased daughter's grandchildren are entitled to take their parent's share of the estate by right of representation. (UPC §2-103(1).) Thus, the estate is split into two shares of $100,000 each. Bob takes one share and the grandchildren split the other share. Choices A and B are incorrect, because they assume that Wanda is entitled to take a share of the estate. Choice D is incorrect, because it assumes that Bob and the grandchildren take per capita instead of by representation.

Zara had many descendants. She had four children (Ann, Barb, Carl, and Dan). Ann had two children, Amy and Allen. Barb had one child, Barb, Jr., who also had her own child, Ben. Carl had five children: Carson, Callie, Cobb, Calyn, and Cole. Dan had one child, Dara, who herself had two children (Dabs and Dee Dee). Were Zara to die intestate tomorrow, predeceased by all of her children as well as Barb, Jr. and Dara, who would take from Zara's estate and in what shares? a. In a jurisdiction that has adopted a pure (also known as "strict," "classic," or "English") per stirpes system of representation, Amy will take 1/8, Allen will take 1/8, Ben will take ¼, Carl's five children will each take 1/20, Dabs will take 1/8, and Dee will take 1/8. b. In a jurisdiction that has adopted a modified (also known as "modern") per stirpes system of representation, Amy will take 1/9, Allen will take 1/9, Ben will take 1/9, Carson will take 1/9, Callie will take 1/9, Cobb will take 1/9, Calyn will take 1/9, Cole will take 1/9, Dabs will take 1/18, and Dee Dee will take 1/18. c. In a jurisdiction that has adopted the Uniform Probate Code (UPC) system of representation (also known as "per capita with representation at each generation"), the answer will be identical to B, except that Ben, Dabs, and Dee Dee will each share equally the 2/9 that Barb, Jr. and Dara would have inherited had they survived Zara. d. A, B, and C are all correct.

d. A, B, and C are all correct Rationale for Correct Answer: In a "pure per stirpes" jurisdiction, the number of "live roots" is always counted at the child generation, no matter what. Here, although all four of Zara's children predeceased her, because all of them left living descendants to continue to "represent" that particular line, each of those four "roots" remains "alive." Therefore, the estate would be divided into four initial shares and divided down accordingly. Thus, A is correct. (TX) In a modified per stirpes jurisdiction, the number of "live roots" is always counted at the first generation that contains at least one living member, which may or may not be the child generation. Here, that is the grandchild generation. Therefore, the estate would be divided into nine initial shares and divided down accordingly. Thus, B is also correct. Finally, the 1990 Uniform Probate Code similarly counts "live roots" at the first generation with at least one living member. It diverges, however, by only allocating a share to any actually living member of that generation, combining the remainder, and distributing it equally to the qualified takers at the generation below that. Here, therefore, 7/9 of Zara's estate would be distributed to her 7 living grandchildren, and then the three qualified great-grandchildren would each take an equal share of the leftover 2/9. One-third of 2/9 equals 2/27. Therefore, Ben, Dabs, and Dee Dee will each take 2/27 of Zara's estate. Thus, C, too, is correct. Because A, B, and C are all correct, D is the correct answer.

Depending on jurisdictional rules, in which of the following scenarios might Babe be deemed to have predeceased Ahn? a. Babe died 4 days and 23 hours after Ahn. b. Babe survived Ahn by 3 weeks, but disclaimed his testate or intestate share of Ahn's estate. c. Babe was convicted of murdering Ahn. d. All of the above.

d. All of the above Rationale for Correct Answer: D is the correct answer. This may seem confusing unless one remembers that there is a difference between actually, and biologically predeceasing the decedent from a medical perspective and being deemed to have predeceased the decedent—i.e., constructively—from a legal perspective. More specifically, the law "treats" survivors "as though they had" predeceased the decedent in numerous instances, including all of those identified above. For instance, both the modern Uniform Probate Code and Uniform Simultaneous Death Act require that to be a survivor, one must survive the other by a full 5 days, or 120 hours. Those who die sooner than that 120-hour period, kill the decedent intentionally, divorce the decedent, disclaim a share of the decedent's estate, or release the right to later inherit from the decedent's estate, are all treated as having predeceased the decedent for succession purposes, a result that is usually justified on some theory of actual or presumed intent.

Adam and Bart, married, have adopted twin daughters: Isabel and Martine. Neither Adam nor Bart has any other biological or adopted children or other descendants. The will that Adam attempts to execute, which leaves his entire estate to Bart, is invalid under the "strict compliance" law of the relevant jurisdiction for failure to have two witnesses. In a jurisdiction that has adopted the intestate succession rules (but not the execution formality rules) of the Uniform Probate Code (UPC), how should Adam's estate be distributed at his death? a. Isabel and Martine should each inherit ½ of Adam's estate. b. Bart should inherit ½; Isabel and Martine should each inherit ¼ of Adam's estate. c. Bart, Isabel, and Martine should each inherit 1/3 of Adam's estate. d. Bart should inherit all of Adam's estate.

d. Bart should inherit all of Adam's estate. Rationale for Correct Answer: D is the correct answer. One of the ways in which the Uniform Probate Code (UPC) protects spouses more than many non-uniform statutory schemes is by distributing a decedent spouse's entire estate to the surviving spouse, no matter how many children or other descendants the decedent may have left behind, when all descendants of each spouse are also those of the other. In theory, this situation ensures that no one's loyalties are divided. Additionally, when distributing an adopting parent's intestate estate, the UPC treats adopted children identically with biological children. This will be true whether those children are adopted as minors or as adults. Because both Isabel and Martine are the only descendants of both Adam and Bart, and because neither Adam nor Bart had "other" descendants with someone else, Bart will inherit Adam's entire estate. That it also matches what Adam had actually intended is a happy accident. A is incorrect because, barring a valid and enforceable agreement, spouses are always entitled to at least some portion of an intestate decedent's estate. B and C are incorrect because they both divide the decedent's estate between the spouse and the decedent's descendants, which will not happen when all of the descendants are "joint," as described above.

Malia is not married and has no children. Moreover, she has not executed a will. Were Malia to die intestate survived by no fairly immediate relatives other than a maternal grandfather, a sister, and two nieces (children of a deceased brother), who would likely inherit her estate? a. Her grandfather b. Her sister c. Her nieces d. Her sister and her nieces

d. Her sister and her nieces Rationale for Correct Answer Intestate death is all too common, particularly where a few traditional prompts for engaging estate planning, such as marriage or the adoption or birth of children, have not occurred. Although people may disagree over whether they meet this goal, intestate succession schemes codified in state statutes of descent and distribution are essentially designed to approximate what most people would want, most of the time. Although states might theoretically answer the question posed above in many different ways, most jurisdictions would split the estate among those relationally "closest" to the decedent, factoring "representation" into the analysis. In most jurisdictions, therefore, D is correct, under the theory that decedents would presumably prefer that their estate pass to siblings and siblings' descendants (with whom the decedent will have shared a parent) rather than some further removed ancestor or collateral relative. Under that thinking, both A and C are incorrect; siblings are "closer" to a decedent than either grandparents or nieces. Moreover, descendants of a predeceased relative of the decedent will often "represent" their parent by taking what would have been their parent's share. In ignoring this reality, B is also generally incorrect. For example, under the Uniform Probate Code (UPC), the sister would inherit ½ of the estate, and the nieces would split the other ½ by representation, taking ¼ apiece. Note, however, that the particular result in any jurisdiction will depend on that particular state's intestacy scheme, which for ancestors and collaterals (rather than descendants), will usually be either a parentelic system (as reflected within the UPC), a civil law/degree of relationship system (which literally counts degrees of separation between the decedent and the surviving relative), or a modified civil law system (essentially, a civil law system with a parentelic "tie-breaker").

Bert died on July 1 from multiple gunshot wounds received in the course of a family dispute. His wife, Sofia, was convicted of murdering Bert. The conviction was affirmed on appeal. Bert left a will disposing of all of his property to Sofia, if she survived him. His estate consists of $100,000 in cash, a life insurance policy payable to Sofia as the primary beneficiary (with Bert's issue as secondary beneficiaries), and a home held in the name of Bert and Sofia as joint tenants with right of survivorship. Bert was survived by Sofia and three grandchildren. How should Bert's estate be distributed? a. The cash should be distributed to Sofia pursuant to the will. The insurance proceeds should be payable to Sofia pursuant to the beneficiary designation, and the joint tenancy is extinguished leaving title in Sofia alone. b. The cash should be distributed to the three grandchildren equally. The insurance proceeds should be payable to Sofia pursuant to the beneficiary designation, and the joint tenancy is extinguished leaving title in Sofia alone. c. The cash should be distributed to the three grandchildren equally. The insurance proceeds should be payable to Sofia pursuant to the beneficiary designation, and the joint tenancy is severed with the half owned by Bert passing to the three grandchildren equally. d. The cash and insurance proceeds should be distributed to the three grandchildren equally. The joint tenancy is severed and the half owned by Bert should pass to the three grandchildren equally.

d. The cash and insurance proceeds should be distributed to the three grandchildren equally. The joint tenancy is severed and the half owned by Bert should pass to the three grandchildren equally. Rationale for Correct Answer: A person who kills another intentionally and feloniously loses any right to benefit financially from his or her victim's estate, whether the assets are part of the probate estate or pass outside the estate. This principle is codified in UPC §2-803(c)(1), which provides that the felonious and intentional killing of the decedent revokes any revocable ... disposition ... of property made by the decedent to the killer in a governing instrument .... Both wills and insurance policies are covered by the definition of governing instrument. (UPC §1-201(18).) The bequest to Sofia and the designation of her as policy beneficiary are both canceled. Therefore, the cash and insurance proceeds pass into Bert's intestate estate. Under UPC §2-803(c)(2), the felonious and intentional killing also severs the interests of the decedent and killer in property held by them at the time of the killing as joint tenants with the right of survivorship, transforming the interests of the decedent and killer into tenancies in common. Therefore, Bert's intestate estate holds a one-half interest in the home as tenant in common; this tenancy then passes to the grandchildren equally. Choice A is incorrect in that it assumes the conviction of murder has no effect upon any of the assets owned by Bert. Choice B is incorrect in that it assumes that the conviction affects distribution of probate assets only, not the insurance policy or the joint tenancy in the home. Choice C is incorrect in that it also assumes the conviction does not affect an insurance policy.

What underlying theory should guide the design of any state statute of descent and distribution? a. The outcomes should match what every individual intestate decedent actually wanted to have happen to her or his property at death; it is a subjective legislative question. b. The outcomes should match what the majority of the legislators would want to have happen to their own property at death; it is a subjective legislative question. c. The outcomes should match how judges would likely rule were they asked to determine what should happen to another's property at death; it is a subjective judicial question. d. The outcomes should match what most intestate decedents presumably wanted to have happen to their property at death; it is an objective legislative question.

d. The outcomes should match what most intestate decedents presumably wanted to have happen to their property at death; it is an objective legislative question Rationale for Correct Answer: D is the correct answer. Intestacy Rules are "default" rules, which means that they determine the outcomes to which the law will "default" when the decedent has failed to exercise testamentary freedom and actuate some subjective testamentary intent, through a valid will. Intestacy rules are, therefore, mindful to balance two existing (but not always complementary) policies: efficiency and intent. A is incorrect because, although a search for every individual intestate decedent's intent might yield results that are intent-positive, that search would come at the expense of efficiency. B and C are incorrect because they prioritize the intent of courts or legislatures over the intents that should truly matter: those of the person who has died. D is correct because it balances efficiency with likely intent by standardizing the intestate result (efficiency), but with an eye toward maximizing likely desired outcomes (intent) so as to target what, objectively, most decedents would have wanted, most of the time.

Tim executed a valid will disposing of his real estate to "my nephew Albert" and devising the remainder of his estate "to my brothers and sisters, share and share alike." Tim specifically disinherited his own children. When he died, Tim was survived by Albert, two brothers, one sister, and his (Tim's) three children. Albert has one child, a son. After Tim's death, Albert filed a valid, written statement renouncing his interest in Tim's estate. How should Tim's estate be distributed? a. Real estate to Albert; residue to Tim's brothers and sister. b. The entire estate to Tim's brothers and sister. c. The entire estate to Tim's children. d. The real estate to Albert's son; residue to Tim's two brothers and sister.

d. The real estate to Albert's son; residue to Tim's two brothers and sister. Rationale for Correct Answer: A person who is a devisee under a testamentary instrument may disclaim the right to take any property or interest therein by filing a written disclaimer. (UPC §2-1105.) Because Albert renounced his gift, he is treated as though he had predeceased the testator. If Albert had predeceased Tim, the antilapse statute would have come into play: Because Albert is a descendant of a grandparent of the testator and was himself survived by a descendant, that descendant (Albert's son) would take the real estate under the antilapse statute. Consequently, Albert's disclaimer means that his son takes the real estate. The remainder of the estate is divided among Tim's brothers and sister. Choice A is incorrect because a devisee is permitted to disclaim his or her interest in a devise, and Albert validly did so here. Choice B is incorrect because the antilapse statute applies when a devisee is deemed to have predeceased the testator. Choice C is incorrect because Tim's children would take the real estate only if the whole will were to fail, which it does not here.