Intestacy: Estate Plan by Default (§§2-101-09, 20-7-1770-1825, 2-803, 2-110, 1-501-08, 2-801, 2-114) Pate v. Ford
Introduction
Ø Intestate estate: any part of estate not disposed of by will §2-101
oComplete intestacy – no will
oPartial – will doesn’t dispose of all prop b/c no residuary clause (everything else to Z)
oDefault estate plan – based on who state thinks more worthy
oLaw that rules is law in affect @ time of death
Ø Probate assets = assets that pass by will or intestacy
Ø Non-probate assets (life ins, joint tenancy) pass by some other means – different law
Basic Theme
Ø Surviving Spousal Share – §2-102: Entire estate – if no issue OR ½ if decedent has surviving issue (lineal descendant)
Ø Heirs – §1-103
oIssues of decedent take their share
ü Equally if same degree of kinship,
ü If unequal degree the more remote take by representation
a. Representation – younger generation takes pre-deceased older gen. heir share
b. SC recognizes modern representation – (2-106)
-Divide estate @ every generational level you have a taker –
-DON’T divide if @ 1st generational level everyone is dead
-If pre-deceased and no issue – do NOT carve out a portion
oNo issueàparent(s) /issue of parent(s) àGP(s)/issue of GP(s)àgreat-GP(s)/issueà stepkid/issue of step kidàstate
ü Half goes to paternal, half to maternal – If none on paternal (inc. issues) all to maternal, vice versa
ü Laughing heir problem – Step child: spouse dead & not decedent’s issue, don’t know if includes all prior step kids?
ü Table of Consanguinity: legislature choice, SC = parentelic: passes to GP/GP issues, then GGP so on
ü Degree of relationship: counting the degrees of kinship, then passes to the closest of kin
ü Collateral kindred:1st line collaterals (decedents of parents), 2nd GP. Blood related, not descendants/ ancestors
Ø Half blood relatives = regular relatives, no distinguish-ment (2-107)
Ø Heir must survive decedent by120 hours or born w/i 10 mo. of death – 2-104 & 2-108
oConsidered pre-deceased if you don’t survive by 5 days – Should always have a sub-beneficiary
oAfter born heir – conceived b/f death but born w/i 10mos applies only to issue to decedent (D’s kids)
oThese don’t apply if estate escheats to the state
Ø Adopted Children – 2-109 (1) §§20-7-1770, 1820, 1825 (only applies to issues of decedent, not nieces/nephews)
oNo longer kid of natural parents after date of final decree: NP no longer inherent thru kid (terminated – voluntarily, or not)
oAdopted child inherits from & through adopted parents and loses ability to inherent from natural parent,
ü Except stepkid adoption– natural parent (& spouse of adoptive parent) of kid rights aren’t affected & child can still inherit from natural parent married to adoptive parent
ü Potential Windfall – inherent from natural father /mom, then if adopted can inherit thru that parent
oStranger to adoption rule:
ü Presumed T didn’t want to treat adopted kids same as a natural child (not for one’s own adopted kids)
ü Not followed in SC so T must specify if doesn’t want to treat adopted like the natural children
oAdult adoption Allowed if §1825:
ü Have consent of (1) person to be adopted/ his guardian (2) Spouse (if any) of the adoptive parent
ü Must be filed in court, 2-109 and 1770 don’t apply to adult adoption Minary case: if just for $$, not allowed
Ø Bastard Children – 2-109 (2)
oConsidered child of mother, but may be child of father if:
ü Parents married b/f or after birth even if marriage void
ü Paternity est by adjudication (and only thru adjudication)
a. B/f death (family ct): Preponderance of evidence (easier than C & C, but Dad could write out of will)
b. Or probate ct: w/i 8mos (6mos if appointed personal rep of estate) & Est w/clear & convincing proof
oNOTE: This § used for Posthumous (2-108 – 10 months) & Nonmarital kids – 1st need to make sure kid is legit
oApplies for child to inherit from dad, not for dad/ his kindred to inherit thru kid unless,
ü Dad openly treated kid as his & hasn’t refused to support kid, then dad can i
Ø 506: not applied to person who died b/f 1948
Ø Can be overruled by construction of will, trust, deed, or K of ins (1-507) – – Contrary intent overrides rule
oLanguage like “Beneficiary deemed to survive (allows transfer – for tax reasons502)”
o508: Rules of construction – to make uniform the law
Transfers of Shares
Ø No living person has heirs, heirs have only expectancy to inherent but no legal interest
oExpectancy can be transferred to another and Probate court could uphold for equitable principles
oBinding as giving up inheritance, risky b/c could get less than expectancy or could predecease the will
Ø Advancements: §2-110(satisfaction applies to testacy)
oLifetime transfer is an advancement and not a gift if
ü Complete intestate
ü Property given to an heir,
ü Recognized as an advancement,
a. By the decedent in a contemporaneous writing signed by decedent or
b. Writing signed by heir acknowledging as advancement
oHotchpot – Try to equalize among the heirs (non-receiving heirs can excuse advancement if they would like)
ü EX: T dies w/ 50K estate and 3 kids – probate estate (minus taxes, claims, debts, expenses, etc)
ü C1 got 10K advancement, if she wants to share in decedent’s probate estate, then 10K must become part of the estate (60K). So now all three kids get 20K C1 will receive just 10K
ü C1 received 40K, then
a. A will elect to stay out of probate estate and no hotchpot and
b. Would not have to give back a portion b/c T wanted A to @ least have 40K
ü Value of advancement either: @ time came into possession or @ time of death of decedent (whichever is 1st)
