2/3 of Americans do not have a will
Intestacy rules are the rules that determine what happens to the probate property of a decedent who
died without a will
The intestacy statutes of the state where the decedent was domiciled at death will determine how
probate property is distributed.
Important even in drafting wills
1. Terminology
2. Probate court may invalidate all of part of a will
3. A will may not dispose of the entire probate estate
Default rules of priority
1. Surviving spouse
2. Children (and their descendants)
3. Parents
4. Descendants of parents
5. Grandparents
6. Descendants of grandparents
7. Stepchildren
8. Descendants of step children
Two theories
1. Presumed intent theory - statutes reflect what most decedent's would have wanted.
2. Duty theory - statutes assume responsibility of the decedent to support the intestate's
dependents
Who is a spouse?
1. Ceremonial
2. Common law
a. Requires
i.
Living together for a certain period of time
ii.
Holding themselves out as married
iii.
Having the mutual intent to be married
b. Few state allow common law marriage
c. Once established, it is recognized by every state
3. Putative spousehood - a putative spouse is a person who cohabitated with the decedent in
good-faith but mistaken belief that he or she was married to the decedent.
4. Civil union
5. Domestic partnership
a. Ex-spouses do not qualify as an hier
Equitable apportionment - divide the intestate estate among the claimants as appropriate in the
circumstances
Spousal share
A. Non-UPC share - wide variation; usually 1/3 or 1/2. share determined by existence of other
claimants. Ie, less if the decedent has children, more if the decedent has parents, all if the
decedent has neither.
B. UPC Share a. the surviving spouse's share cannot be determined without reference to whether the
following individuals also survive the decedent
i.
Descendants who are joint descendants with the surviving spouse
ii.
Descendants who are not also descendants of the surviving spouse
iii.
Descendants of the surviving spouse who are not also descendants of the
decedent
iv.
Decedent's parents
b. The surviving spouse receives the decedent's intestate estate if
i.
The decedent left no surviving descendants and no parents; or
ii.
The decedent's surviving descendants are also descendants of the surviving
spouse AND the surviving spouse has no descendants who are not descendants
of the decedent.
c. The surviving spouse receives less if the decedent left no surviving descendants but at
least one surviving parent.
d. The surviving spouse receives even less if the decedent's surviving descendants are also
descendants of the surviving spouse but the surviving spouse of one or more other
descendants.
e. The surviving spouse receives the least if the decedent has one or more surviving
descendant who are not descendants of the surviving spouse.
Share to children, descendants, and parents
A. Who is a child?
a. A child is no a stepchild, foster child, or a descendant of a child
b. The Marital Presumption - the offspring of a married couple is presumed to be the child
of their parents.
c. In some jurisdictions, a relative of the half-blood inherits only half, in other states they
are not treated differently.
B. Adopted Children
a. Historically, adopted children could not inherit from or through their adoptive parents
b. Recent changes allow them to inherit from and through adoptive parents, not biological
parents
c. If the adoptive parent is married to a biological parent, the child may inherent
from/through the adoptive parent or either biological parent.
C. Foster Children
a. Generally, foster children cannot inherit
b. Very Rarely, if a person fails to adopt but hold out a child as their own, the court will
consider this an equitable adoption.
D. Parents
a. Determining parenthood requires the same analysis as determining childhood.
b. Sometimes, a parent's parental rights are terminated by the court prior to the death of a
child
c. Sometimes, losing parental rights doesn't mean the parent can't take from the estate.
d. The UPC disinherits if the parent could have, or did have, their rights terminated.
(abandoned, failed to support, abused, neglected, etc.)
E. Share to other relatives and Escheat
a. Parentela system - find the closest relatives on the family tree
b. Degree of Relationship - count up to common ancestor then count down to claimant.
c. Escheat - if there is not claimant in the first three parentela, the state takes the estate
Common rules of representation
1. if there is on descendant, then no other relatives take anything
2. If all members of the generation at which the property is dispersed are still alive, then there is
no representation
3. Representation is only needed if, at the generation at which a disbursement occurs, there is at
least one descendant who has died, leaving descendants themselves.
4. A descendant who predeceases the decedent cannot be represented by a spouse or
stepchildren.
5. Only the highest priority surviving generation member of a family may receive a share, that
person cuts off the rights of her descendants.
Representation models
1. Strict (English) per stirpes - establishes the number of shares based on the represented
bloodlines at the first (or child) generation, even if no child is alive at the decedent's death.
a. Divide the decedent's estate so that each bloodline has an equal share, such that one
share is set aside for each living child of the decedent (if any) and deceased child with
descendants then living who will represent them
b. Distribute one share to each living member of the highest generation
c. If any bloodlines with at least one survivor have not received a share, then distribute the
probate property in the same manner as step two.
2. Modern per stirpes - distributes the decedent's property per capita at the first generation where
there are survivors and then by representation for descendants at lower generations. Skips dead
generations if everyone in that generation is dead.
a. Find the generation where there are living descendants. At that generation, determine
the number of shares by dividing the estate into as many equal shares as there are living
descendants of the decedent and deceased descendants with living descendants who
will represent them
b. Assign one share to each living member of the generation
c. Repeat one and two for each generation
3. Current UPC - "Per Capita at each generation." - equity between generations rather than
bloodlines
a. Begin at the first generation where there are living descendants. Divide the estate into
equal parts based on the number of living children of the decedent (if any) and
deceased children in the same generation with descendants then living. Assign one
share per capita to each living member at this generation
b. Combine the remaining share if any into a pot for sharing by lower generations
c. Move down to the next generation and repeat steps 1-3 until the entire estate is
distributed.
4. Reducing for advancements
a. Advancements are large payments made to children that would be deducted from their
inheritance