Chapter 4
09/27 Tue.
Chapter-4 Pg.88 “Death
Testate
or
Intestate”
Testacy (with Will)) Intestacy (W/O Will)
l)
Exclude until later pgs. 88-105 (top)
Begin at PG 105
Death Without a Will
 Kindred-related by blood
 Consanguinity related by blood through common ancestor with blood
 Affinity – related by marriage
 Pg.-106 - Ascendant/ancestor (before descendant)
 Descendant (after ascendant)
 Pg.-107 - Collateral – brother/sister/first cousin
 Pg. 106 - Lineal – direct descendant or ascendant (children, parents)
 Half blood – same mother or father but not both
Pg. - 108
Intestate Succession Statute
1) Probate Code 38 - Separate Property:
(a) Separate Property – (Single)
(b) Separate Property – (Married)
2) Probate Code 45 - Community Property:
Pg. - 109
Methods of distribution
-per capita = equal share
“By heads”
-per stripes (By stripes) = By family lines
-right of representation
-escheat (ON TEST) = Estate pass to the state of domicile, if no blood or spouses surviving
9/29 - Thursday
Pg. – 113
[DEGREES OF RELATION CHART 4.9]
[DIAGRAM?]
Community Estate (community property intestacy)
Separate property
Singles only (no spouse)
Property descends kindred
1. First children and descendants
2. Then to 1st father/mother
3. Then to brother/sister
[DIAGRAM]
10/04 Tuesday
Pg. 123
Not intestacy only but also will
Effect of divorce and marriage on a spouse
Divorce effects both intestacy & will
-(no will) intestacy no longer have spouse has direct effect, now use 38(a) instead of 38(b).
-will = divorce direct effect cuts of benefits and fiduciary of former spouse
 but not natural guardianship
Marriage
-Intestacy (direct effect 38(b) & 45)
-Will (no effect on will in Texas, because of definition of community property),
(in some state may effect or revoke will)
Pg. 126, 127 Natural children
Adoption child
Pg. 128 Nonmarital child
Pretermitted child (will only concept)
Omitted child (automatically added probated)
Pg. 129 Posthumous child (born after death)
No will intestacy - grants adopted child opportunity to inherent from both pairs of parents
Only adoptive parents inherit child’s intestacy
Pg.130 1845 TX Constitution Homestead exemption:
Statutory
-right for spouse to, homestead for life in deceased spouse’s home, and children until 18
Pg. 131  Property tax- homestead exemption/allowance
Protected homestead from other creditors not mortgage + equity loans
Pg. 132  Family allowance
4.8 Assignment
38 - Separate property
A - Separate single
B - Married separate
45 - Community property
!0/06 - Thur. Begin
88-105
116-123
121
124-126 Not
[DIAGRAM]
Escheat = No family therefore goes to state [ON TEST]
1982 Home – get date of marriage
1984 Ranch in TX inherited,
 1/3 life estate to spouse /w remainder to Kids +
 Fee Simple after spouse dies  1/3 Equal shares to kids (See Dia e.g. below)
12/66 4ct dia. = Gift/Engage  1/3 to Husband  2/3 to children & decedents
= 2/3 / # of Takers Child & 2 Grand = 3 2/3/3 = 2/3 x 1/3 = 2/9
= 1/3 to Atkinson, 2/9 each to Lana, Luella, David.
2011 Auto
2005 Bank
1972 401K
1997 Aspen condo
38(b) 1/3 to Husband  2/3 to children & decedents
1/3 life estate remainder kids + ¼ to kids
Separate
Personal (diamond, gift)
Real, Ranch (inherited)
Community
Home
Auto
Bank
401K -/v probate check beneficiary
* Condo Quesi out of state
* Colorado intestacy statute apply
ROS - Right of Survivor
Non probate:  So they are not divided up in the probate process
POD
Pay on Death
JTROS
Joint Tenancy Right of Survivorship
JROS
JTWROS
Joint Tenancy with Right of Survivorship
TOD
Transfer on Death
1. §38 Separate Property
a. (a) – Die Intestate (No Will) – No Spouse (Need Only §38.(a).)
b. (b) – Die Intestate (No Will) – With Spouse (Need 38.(b).)
i.  (Spouse & Kids) 1/3 to Husband  2/3 to children & decedents
ii. & Also §45 Community Property.
2. §45 Community
a. No kids or both were parents to all kids
i. Bank account 
Atkinson 100%
ii. Auto
Atkinson 100%
iii. Home
Atkinson 100%
b. Both were not parents to all kids (Half bloods/Step-children)
i.
Assets
Spouse retains his 50% Spouses non-children 50%
!0/06 - Thur. end chapter 4 Lecture
Chapter 4 – Pg. 138
Advantages of a Will
1) A will makes it possible for the testator to:
2) Designate how much and to whom all property owned, real or personal, is to be distributed
after death.
3) Leave property to family members equally or in varying amounts based on need or the
affection for or worthiness for the chosen recipients.
4) Leave property to someone who would not take under intestate succession, e.g., close
friends or special and faithful employees.
5) Make gifts to the testator’s church, or to charitable, education, scientific, and health
institutions or organizations.
6) Subject to the approval of the probate court, nominate a personal guardian to care for any
minor or incompetent person and a property guardian to manage the property inherited by
the minor or incompetent person.
7) Appoint a trustee and create a testamentary trusts which, through the proper estate
planning, can diminish death taxes, e.g. estate taxes.
8) Nominate a personal representative and grant the nominee special powers relating to the
administration of the estate.
9) Avoid many legal problems that may accompany an intestate’s estate administration, e.g., a
will can waive the bond requirement for the appointed personal representative.
Chapter 4 – Pg. 138
Disadvantages of a Will
1) The probate of a will is often time-consuming and expensive and can cause inconvenience
to the decedent’s family.
2) In addition to the delays and costs, probating a will also causes bureaucracy (red tape)
problems.
3) A will does not eliminate complicated procedures, e.g., the problems that accompany the
transfer of ownership from the decedent to the beneficiary.
4) The loss of confidentiality concerning the decedent’s property and names beneficiaries. All
wills are filed in the county courthouse of the decedent’s domiciliary state, and they are open
to the public.
5) If the will is ill-fitting, poorly drafted, outdated, or inadequate, having no will might be more
acceptable.
Definitions
1) Uniform Probate Code (UPC) – A uniform law available for adoption by the states to
modernize and improve the efficiency of the administration of a decedent’s estate.
2) Testacy – Death with a valid will.
3) Intestacy – Death without a valid will.
4) Succession – The act of acquiring property of a decedent by will or by operation of law
when the person dies intestate.
5) Abatement – the process that determines the order in which gifts made by the testator in the
will shall be applied to the payment of the decedent-testator’s debts, taxes, and expenses.
6) Kindred – Kindred refers to persons related to one another by blood. (kin or next of kin)
7) Consanguinity – Consanguinity refers to persons who are related by blood through a
common ancestor.
8) Affinity – Affinity refers to persons who are related by marriage, only blood relatives can
inherit from the intestate’s estate, none by affinity can inherit.
9) Ascendant/Ancestor – A claimant to an intestate’s share who is related to the decedent in an
ascending lineal or collateral blood line.
10) Collateral – An heir or relative, not in a direct line of lineal ascent or descent, who traces
kinship through a common ancestor.(Bothers, Sister, Aunts, Uncles, Nieces, Nephews,
Cousins)
11) Lineal – An heir or relative, in a direct line of lineal ascent or descent, who traces kinship
through a common ancestor.(Children, Grand Children, Parent, Grandparent)
12) Half blood – the degree of relationship that exists between persons who have one parent in
common, but not both.
13) Per Capita Distribution – The method of dividing an intestate estate and giving an equal
share to a number of individuals without the right of representation.
14) Per stripes distribution – Distribution of property that depends on the relationship to the
intestate of those entitled by the estate. Distribution by representation.
15) Escheat – The passage of an intestate’s property to the state when there are no surviving
blood relatives or a spouse.
16) Right of Election – The right of a surviving husband or wife to choose to take, under the
decedent’s state law, his or her statutory share in preference to the provision made in the
deceased spouse’s will.
17) Elective or forced share statute – The statute that grants the surviving spouse the election or
choice. Also called statutory share.
18) Issue – All persons who have descended from a common ancestor.
19) Adoption – The legal process b statute that establishes a relationship of parent and child
between persons who are not so related by nature.
20) Natural Child – Birth of a mother & biological father.
21) Adopted child – A person (child) adopted – establishes legal parenthood.
22) Nonmarital child – A child born to parents who are not married.
23) Pretermitted (omitted) child – A child omitted in a parent‘s will.
24) Posthumous child – A child born after the death of his or her father.
25) Homestead exemption – A statute that protects a family form eviction from their home by
creditors.
26) Homestead allowance – A statute that provides a modest cash award for the benefit of a
surviving spouse or minor children; it is priority payment to them and is not subject to
creditors’ claims.
27) Exempt property – The decedent’s personal property up to a specific dollar amount that is
given surviving spouse and/or minor children and is exempt from creditors’ claims.
28) Family allowance – A statute that allows the court to award to the surviving spouse and/or
minor children a monthly cash allowance for their maintenance and support.
Chapter 4 – Pg. 137 – Assignment 4.8
1) Who is the intestate?
2) Who is the administrator or administratrix?
a) When not selected by will often a surviving spouse get assigned.
3) Name the laws that govern passage of the decedent’s estate.
a) Intestate Succession Laws
b) Intestacy Statutes
4) Find and cite the state statute that would determine the passage of Mary’s estate in your
state.
a) §38(b) Married separate property
b) §45
Community Property
5) Name the decedent’s lineal relatives who are ascendants and descendants.
a) Lana, Nancy, Denise, David, Luella, Theresa, Lorenzo
6) Name the collaterals related to the decedent.
a) Rose, Oscar, Thor, William, Nadine, Faith, Sharron, Diane, Donnie, & Kevin
7) List all the potential successors (heirs) of the decedent.
a) Atkinson, Lana, Luella, David, Theresa, Lorenzo, Faith, Nadine, Thor, Diane, Donnie,
Kevin, Oscar, Rose
8) Name the relationship that entitles the persons in question 7 to possibly share in the
decedent’s estate.
9) List persons who might be excluded from receiving any of the decedent’s property.
a) Affinity relations except current spouse, Desceased, Foster Children
10) How are the persons in question 9 related to the decedent?
11) Name relatives who might receive their share of the decedent’s estate per capita.
a) Atkinson, Theresa, Lorenzo, Lana
b) Current Spouse, Children, Brothers/Sisters, Mother/Father
12) Name relatives who might receive their share of the decedent’s estate per stirpes.
a) Children of Deceased Heirs
13) What would happen if the decedent had no surviving spouse or relatives?
a) Escheats to State
14) Diagram a family tree for Mary and her relatives.
When not clear presumed to be community property
Separate
Pre-marriage
Inheritances
Personal Injury
 (not replacing income/not interest earned)
Gifts
Identified Prenuptial items
Community
All Assets bought during Marriage
All Assets earned during Marriage
For Separate Property split into Real & Personal Property