Wills, Trusts and Estate
Planning
Intestate Succession
Unit 3
Testate vs. Intestate
Succession
Situation
Parties Who Receive Deceased’s Property
Deceased dies with a valid
will
Beneficiaries named in the will.
Deceased dies without a
valid will
Heirs set forth in the applicable intestacy
statute.
If there are no heirs, the deceased’s property
escheats (goes) to the state.
Historical Development of
State Succession Statutes



Male heirs inherited real property to the
exclusion of female heirs unless no male
heir existed.
If there were two or more males who
were equally related, the older male would
inherit all the land.
If there were no male heirs and several
female heirs, the females shared equally.
Protection of the “Surviving”
Spouse



The surviving spouse was not considered an
heir. But common law gave each spouse a
marital estate in the lands of the other spouse.
Widows – Dower Rights – life estate in 1/3 of
the property owned by husband during
marriage, even if property wasn’t owned by the
husband at the time of his death.
Widowers – Curtesy Rights – life estate in all the
wife’s property, if a child was born to the
marriage.
Protection of Surviving Spouse –
Under Modern Law



Dower and Curtesy have been mostly eliminated
but the majority of states make the surviving
spouse an heir under their descent and
distribution schemes.
States have also enacted specific marital
property laws.
Homestead and personal property exemptions
are also available in most states.
Marital Property Statutes


Separate Property – even if deceased left a will,
a surviving spouse can elect to take against the
will. The surviving spouse can obtain a share of
the estate even if nothing is left to them under
the will.
Community Property States – the surviving
spouse is protected against disinheritance
because the surviving spouse already owns an
undivided ½ interest in the marital property.
The Homestead Exemption


The surviving spouse may be able to
occupy the homestead free from the
possessory claims of the true title holders
as well as retain it exempt from the claims
of the deceased spouse’s creditors.
Homestead exemptions vary greatly from
state to state.
Personal Property Exemptions


The surviving spouse and minor children
are frequently granted the right to retain
certain personal property free from the
claims of creditors.
In some instances, their claim will be
superior to the claims of will beneficiaries
to whom the items were left.
The Basic Idea of
Intestate Distribution


After the decedent’s property is used to
pay debts, taxes, funeral expenses, and
administration expenses, the remainder, if
any, is distributed to the decedent’s heirs.
Non-probate assets, such as life insurance
proceeds and survivorship bank accounts,
are not affected.
Intestate Succession Laws


Determined by state law called the
intestate succession statute or statues of
descent and distribution.
Intestacy statutes vary substantially from
state to state.
More Than One State


Deceased lived in Nebraska where she owns a
home, had a driver’s license, and paid income
tax. She owned a cottage in Wisconsin and a
condo in Florida.
If she dies intestate, Nebraska’s statutes will
determine how and by whom her house and
personal property are inherited. Wisconsin’s
statues will decide who receives the house, and
Florida’s law, the condo.
Intestate Succession Laws




Surviving spouse.
Lineal descendants – blood relatives such
as children, grandchildren and greatgrandchildren.
Lineal ascendants – blood relatives such
as parents, grandparents and greatgrandparents.
Collateral Heirs – uncles, aunts, brothers,
sisters, nephews, nieces, and so on.
Additional Considerations




Adopted children – according to most
state statutes are considered blood
relatives of the adopted family.
Persons related by marriage – not
considered as part of intestate succession.
Half-blood relatives – only considered part
of intestate succession if related through
the blood relative.
Review particulars in your state statutes.
Surviving Spouse - Florida



If there are no children - the entire estate.
If the surviving children are of the
deceased and the surviving spouse $60,000 of the estate + one-half of the
balance of the intestate estate.
If the surviving children are of the
deceased but are separate from the
spouse - one-half of the intestate estate.
The Basic Distribution Scheme
(when all Decedent’s children are alive)



Each child receives an
equal share.
This is called per
capita distribution.
Per capita – equally to
each person.
Intestate
Son 1
1/3
Son 2
1/3
Daughter
1/3
Multi-Generation Succession
(when there are Predeceased Children)

If some of the intestate’s
children died before the
intestate after having
children who outlive the
intestate, there are at
least 3 methods states
use when dividing
property among
descendants when
different generations are
involved.

Per Stirpes (by Right of
Representation)


Per Capita with
Representation
Per Capita at Each
Generation
Determining the Distribution Scheme in the
Case of Multi-generation Succession



Identify the Intestate’s Children
Determine if Any Predeceased Child Left a
Descendant who Outlived the Intestate.
Ascertain the Governing State’s Method of
Handling Multi-Generation Succession.



per stirpes
per capita with representation
per capita at each generation
Per Stirpes (by Right of
Representation)



The intestate’s children are the root of the
distribution process.
Younger generation descendants divide
the share their predeceased ancestor
would have taken had he survived the
intestate.
In other words, the younger generation
“represent” or stand in the shoes of the
older generation.
Per Stirpes –
Children and Grandchildren
Intestate
Son One
Deceased
Arthur
1/4



Son Two
Deceased
Daughter
1/2
Brenda
1/4
If Son One would have survived, Son One would have received ½
the estate.
Because he predeceased the intestate, his ½ share is divided
equally between his children.
No share for Son Two because he had no heirs to represent him.
Per Stirpes –
Grandchildren
Intestate
Son One
Deceased
Arthur
1/4


Son Two
Deceased
Brenda
1/4
Daughter
Deceased
Charles
1/2
Although all takers are of the same generation,
they do not receive equal shares.
This approach stresses blood line over degree of
relationship and may cause equally related
individuals to be treated differently.
Per Capita with Representation



The “root” is the generation nearest to the decedent
with those who survive the instate.
If all takers are of the same generation, they take
per capita but …
when the takers are of different generations, the
share of the younger generation descendants is
based on the share that the older generation would
have received had the older generation survived the
intestate.
Per Capita with Representation –
Children and Grandchildren
Intestate
Son
Deceased
Arthur
1/4


Daughter
1/2
Betty
1/4
Although this is the same answer as under a per stirpes
distribution, the reasoning is different.
The key issue is the level at which the shares are
divided, here it’s at the children level because it’s the
first level with members who survived the intestate.
Per Capita with Representation –
Grandchildren
Intestate
Son
Deceased
Arthur
1/3


Daughter
Deceased
Betty
1/3
Charles
1/3
Because the level of grandchildren is the nearest
generation to the intestate with survivors, it is the root
generation.
This approach is regarded as being fairer to both the
intestate and the heirs than per stirpes and is the
majority approach.
Per Capita with Representation –
Children and Grandchildren from Multiple
Predeceased Children
Intestate
Arthur
Deceased
Edward
1/4


Brenda
Deceased
Fran
1/8
Charles
1/4
Doris
1/4
George
1/8
Intestate’s property is divided into shares at the first
generation with survivors, that is, children.
The initial division is into quarters - one for each of the
surviving children and one share for each of the
deceased children who left surviving descendants.
Per Capita at Each Generation



Newest approach – contained in the Uniform
Probate Code.
Equality among like-related persons is achieved.
Basic plan begins with per capita with
representation but once the division is done at
the first generation with survivors, the deceased
member’s shares are combined and distributed
per capita among the younger generation heirs.
Per Capita at Each Generation Children and Grandchildren from Multiple
Predeceased Children
Intestate
Arthur
Deceased
Edward
1/6


Brenda
Deceased
Fran
1/6
Charles
1/4
Doris
1/4
George
1/6
The initial division is into quarters - one share for each
of the surviving children and one for each of the
deceased children who left surviving descendants.
The shares of the predeceased children are combined,
then equally divided among their children, intestate’s
grandchildren.
Escheat



No surviving heirs.
Estate passes or escheats to the state.
Life insurance will pass to named or
contingent beneficiaries.
Tasks for this Unit




Seminar
Quiz
Discussion Board
Assignment
Your State’s Intestate
Succession Laws


For the first Discussion Question research
your own state’s intestate succession laws
and share how your state distributes
property of a person who dies intestate.
Discuss any provision of the intestate
succession statute that you find
interesting and provide the citation to your
state’s statute.
Intestate Succession Process


For the second Discussion Question go to
LexisNexis and research your state
statutes to see how the state treats
illegitimate children in the intestate
succession process.
Report your findings and provide the
citation to your state’s statute.
Discussion Board Instructions





Post your thoughts and responses to the
Discussion Board as to each question.
Read and comment on posts from your
colleagues.
Do not hesitate to pose questions to your
colleagues.
Discuss constructively with your colleagues
their posts and positions.
Post as early in the week as possible to foster
interaction
Property Distribution


For this week’s writing assignment you will
review the following article: Montana
State University's article, "Dying Without a
Written Will in Montana: Who Receives
Your Property?"
Then go to the Illinois General Assembly
website and review the laws of succession
of the State of Illinois.
Write three paragraphs based upon the following facts: The
Lees, a family made up of a mother, father, and three children,
live in Montana. Mr. and Mrs. Lee have one child together. In
addition, Mrs. Lee has one minor child from a previous marriage,
and Mr. Lee has a minor child from a previous marriage. All three
children reside with the couple. Assume that one of the parents
died today without a will, and his or her estate was valued at
$250,000.
Devote a paragraph to each of the following questions:
1. Under the laws of Montana, how would the property be
distributed?
2. What would happen if this same family lived in
Illinois? How would the property be distributed?
3. Do you prefer Illinois’ or Montana's statute? Why?
Answer the questions in a brief short answer essay, being
sure to fully explain your responses.
Next Week


This week we addressed the Laws of
Intestate Succession.
Next week we will address Trusts.