Steven Arsenault
Decedents Estate
Spring 2014
1st question – is it Probate v. Non probate property?
Probate – property that passes through probate under the decedent's will or “intestacy” statutes
o Property passing by will
o Property not devised by will or not automatically transferred by a will substitute
Non probate – property that passes outside of probate by way of a will substitute.
o Inter vivos trust
o Life insurance
o Pay on death and transfer on death contracts
o Joint tenancy
§ w/ rights of survivorship
§ Entirety holdings
Probate fills the gaps if decedent did not arrange affairs during life so all property passes non probate.
7. Probate administration
1. Provides evidence of title to the new owners, making the property marketable again
2. Protects creditors by providing a procedure for payment of the decedent's debts
3. Distributes the decedent's property to those intended after the decedent's creditors are paid.
8. Jurisdiction?
0. State in which decedent domiciled (primary/domiciliary JD)
1. And, the states in which decedent owns real property (ancillary JD)
1. Determine Venue
1. Primary probate – county where decedent dies
2. Ancillary probate – county where decedent's real property is situated
9. Intestate succession
0. Primary objective in designing an intestacy statute is to carry out the probable intent of the typical intestate decedent – that is, to provide majoritarian default rules for property succession at death.
10. UPC
0. Designed to provide suitable rules for the person of modest means who relies on the estate plan provided by law. Revisions have fine-tuned sections bringing them into line w/ developing public policy and family relationships.
1. 2-102 – Spousal Share
1. Entire estate
1. If no descendent or parent of decedent survives
2. All of decedent's surviving descendants are also descendants of surviving spouse.
2. 300k + 3/4 if no descendant of decedent, but a parent does.
3. 225k + 1/2 if all decedent's surviving descendants are also descendants of surviving spouse, AND spouse has 1 or more survivors who are not descendants of decedent.
4. 150k + 1/2 if 1 or more of decedent's surviving descendants are not descendants of surviving spouse.
2. 2-103 – Share of heirs other than surviving spouse
1. Any share not passing to spouse passes in the following order:
1. To the decedent's descendants by representation
2. To decedent's parents equally if both surviving, or all to one
3. If none, then to descendants of decedent's parents by representation
4. If none, but there are surviving grandparents on both paternal and maternal sides, or descendants of grandparents
1. 1/2 to paternal grandparents, and 1/2 to maternal, or descendants if both deceased
5. If none, but one or more grandparent on only one side, or descendants of grandparents, same as above.
6. If none above, but one deceased spouse w/ one or more descendant, to them by representation
7. If more than one deceased spouse w/ one or more descendants, equal share to each set of descendants by representation.
8. If no taker – Escheats to the state.
11. UPC – per capita at each generation.
0. Estate divided into as many equal shares as there are 1) surviving descendants in the generation nearest to the decedent which contains one or more survivors, and 2) deceased descendants in the same generation who left surviving descendants, if any.
1. Each surviving descendant in the nearest generation is allocated 1 share. The remaining shares if any, are combined and divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent,
2. Achieves horizontal equality.
12. NC – Surviving Spouse
0. Real property
1. 1/2 – if survived by only 1 child, or any descendant of only 1 deceased child
2. 1/3 – if survived by 2 or more children, or by one child and any descendant of one or more deceased chil
o have descendants living.
§ The kids of each deceased descendant represent their deceased parent and are moved into their parent’s position.
§ Assures vertically equality (but shares may be unequal horizontally)
17. Modern per stirpes/per capita with representation
§ 1st look to see whether any children survived the decedent
§ If so, distribution is identical to that under English per stirpes.
§ If not, the estate is divided equally at the 1st generation in which there are living takers, which is usually the generation of the decedent's grandchildren
§ Estate divided into shares at the generational level nearest to the decedent in which one or more descendants are alive.
§ Any deceased descendant in that level is represented by her descendants.
5. Any person finally adjudged to be the father
6. Any person who acknowledged himself during his lifetime and child's lifetime to be father (in writing and acknowledged before certifying officer)
7. Any person who died before, or 1 year after child's birth and can be proven to be father by DNA testing
8. Must give written notice of claim w/in 6 months after date of 1st publication to putative father
§ Generally, under what circumstances may a nonmarital child inherit from the father?
§ Subsequent marriage of parents
§ Paternal acknowledgment
§ Paternal adjudication
§ Clear and convincing evidence after father's death.
Adopted children
Section 2-117. No Distinction Based On Marital Status. UPC
Section 2‑118. Adoptee and Adoptee’s Adoptive Parent or Parents- UPC
Section 2‑119. Adoptee and Adoptee’s Genetic Parents. UPC
29-17. Succession by, through and from adopted children NC
