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Trusts and Estates
University of North Carolina School of Law
Orth, John V.

1.     Intestacy Introduction
DG=Dead guy, testator, etc.
A.Intes is the default rule. It will come into play if:
                                                        i.             DG has no will,
                                                      ii.             DG has will, but it fails
a.             Partially intestacy – will only covers part of the property; Usually covered by a residuary clause
                                                    iii.             If will says so
B.Terminology: Intestacy statutes commonly use the following terminology:
                                                        i.             Decedent: the dead person;
                                                      ii.              Descendants or Issues: kids, grandkids, and so on straight down the line;
                                                    iii.             Ancestors: parents, grandparents, and so on strait up the line;
                                                    iv.             Collateral Kin: everyone else who is not strait up or down the line (e.g. aunts, uncles,cousins, nieces, nephews, etc…).
C.Intes is solely a creature of statute (like wills), so statutes determine everything
                                                        i.             Controlling statutes:
a.             Personal property is governed by the domicile state of DG
b.             Real property is governed by state where property is located.
                                                      ii.             Takers (in typical order)
a.             Spouse
b.             Kids
c.              Rents
d.             Sibs
e.             Grandrents and their desc
f.              Next of kin
g.             Escheat
                                                    iii.             Takers (under UPC):
a.             Spouse (2102)
                                                                                            i.                         The entire estate if:
a.                         There are no kids or surviving parents of DG
b.                         All surviving kids are also spouse’s kids
                                                                                          ii.                         The first 200k, plus 75% of any balance if the only survivor is DG’s parent and there are no desc. 
                                                                                        iii.                         The first 150k plus 50% of the balance if all DG’s desc are kids of the two spouses and surving spouse has kids which are not also DG’s.
a.                         This deals with the multiple marriage problem. There can be desc of DG and kids who are not his. We used to assume that if W got everything, some of it would find its way to DG’s kids, but that is not assumed anymore. One of the problems with UPC is that in trying to deal w/ every problem, it gets less intuitive and harder to work with. 
                                                                                        iv.                         The first 100k plus 50% of the balance if DG’s surviving kids are not also surviving spouse’s kids.
b.             Other than spouse: Remainder after surv spouse’s share or any intes portion goes (in the following order): (2103)
                                                                                            i.                         DG’s descendants by representation
                                                                                          ii.                         DG’s parents of the surv thereof
                                                                                        iii.                         If there are no suv parents, to desc of rents by representation
                                                                                        iv.                         Then to desc of grand rents
a.                         Note: UPC stops here, after GPs. There are no laughing heirs that can take.
c.              No takers: estate escheats to state.
D.Share of the Surving Spouse
                                                        i.             Spouse is defined as someone with whom DG had a legal marriage at time of death
a.             Any state that recognizes SSM, CL marriage, etc, will recognize that partner as a spouse for intes purposes
b.             2102B would have allowed an intes share for committed partners, but this has not been adopted yet. CP was anyone sharing a ‘marriage like relationship.’
                                                      ii.             Simultaneous Death: usually there must be a suving heir to inherit. Cars crashed make this a sticky issue
a.             Uniform Simultaneous Death Act (1940) stated that unless there was sufficient evidence of the order of death, donor was deemed to have died before the beneficiary. 
                                                                                            i.                         If JT die at the same time, half the land goes as if A died first, and half as if B died first. 
b.             Janus v. Tarasewicz: Survivorship is a fact that must be proven by a preponderance of the evidence by the party whose claims depends on survivorship. Jury is allowed to believe whichever expert they choose. Here, they picked H’s, who claimed that the electrical activity in W’s brain was not from interference from other electrical stuff in the room, but from a (semi) functioning brain. Jury determined there was sufficient evidence to show that W survived H
                                                                                            i.                          Note, this rule and USDA kinda presume that folk die simultaneously unless there is evidence they don’t.
                                                                                          ii.                         Circumstantial evidence and conjecture cannot be used to show that W survived H. In re Estate of Campbell, 641 P.2d 610, holding that evidence wife was a better swimmer was not sufficient to show she survived longer than H in a boating accident)
a.                         however evidence that H died instantly in a plane crash while W surved long enough to inhale Carbon Monoxide is sufficient to show W surved H.
c.              New USDA (1991) requires at least 120 hours to pass for there to be survship. This is a brightline rule, not worried about if there is any chance of recovery for a vegetable. 2104 and 2702 have the same rule.
E.Shares of Lineal Desc.
                                                        i.             Initial concerns:
a.             Desc=Issue=heirs of the body (ie lineal desc)
Always need to use ‘desc’ or ‘issue’. Using ‘children’ in a will leaves gk w/ nothing if their rents die before gp/DG. 
B.      Generally, after the spouse’s share is set aside, everything else is divided among desc.
                                                                          i.            When one of the kids dies first, his desc represent him and split the share he would have gotten.
a.       Systems:
                                                                                                              i.       English per stirpes (EPS): Everything is divided at the generation immediately following DG (ie his kids). If DG had two kids, A and B, and A dies leaving 1 grandchild, and B dies leaving 12, A’s kid gets half of DG’s estate and B’s 12 kids split half of DG’s estate.
                                                                                                            ii.       Modern per stirpes (MPS): If DG has surviving kids, this is the same as English per stirpes. If there are no surving kids, then the estate is divided at the first generation where there are surving takers (usually grandkids). In the above example, DG’s estate would be divided into 13ths at the grandkid level. If A’s kids had died, leaving 20 GGK, they would split 1/13 of DG’s estate, with the remaining 12/13 going to B’s 12 kids. The original UPC (1969) largely followed this. Desc can stand and take by rep the share of dead ances. 
                                                                                                          iii.       Per capita at each generation (PC) (UPC 1990 2106b): The estate is divided equally at the first level where there are living desc. That share is then divided equally among all survs of that line. Assume DG had three kids, B,C, and D; B and C died before DG. B left one gk (E), C left 2 (F and G). DG’s estate is split into thirds (DG had three kids, one of whom surved). D gets 1/3. The remaining estate is split equally among E, F, and G, who each get 2/9 of DG’s original estate (2/9 x 3=3 6/9=2/3). Each taker at a generation is txed equally with all other takers at that generation (ie, ‘equally near, equally dear.’)
C.      Note on (negative) disinheritance: This cannot be done merely by having a will that says that ‘son gets squat’; all the property must be devised to someone else. If there is a partial intes, son will get his typical intes share. 
                                                                          i.            UPC 2102b changes this and allows disinheritance. It is txed as if disinherited party had died before DG, so his share would go to his desc.
F.Shares of collaterals
                                                        i.             If DG does not have desc or parents living, the estate will go to his bros and sis and their desc, with the estate being divided the same way it would if he’d had desc (ie, EPS, MPS, or PC)
a.             First line collaterals: Bro and sis
b.             Second Line collaterals: anyone else (ie, desc of grandparents: cousins, etc.)
                                                      ii.             If there are no first line collats, then the estate passes to second line collats; however, the system to decide which SLC varies by state:
a.             Parentelic system: estate goes to GP and desc. If none, then to GGP and desc, etc, until a living taker is found
b.             Degree of relationship system: count up the steps from DG nearest common ancestor, then down the steps until reaching taker. (see table of consanguinity on pg. 79 for details and nifty use of the word ‘thrice’)
c.              Some states will use a hybrid system, using degree for the initial determination and parentelic preference to break a tie. 
                                                    iii.             Laughing Heirs are those who are desc of GP (ie one so distantly related to DG that he feels no sense of loss, but laughs all the way to the bank). 
a.             The UPC eliminated this concern by prohibiting inheritance beyond gp and their desc. 
b.             Some oth

                                    i.             Under CL got squat
                                                      ii.             Trimble v. Gordon, 430 US 762 held uncon as a violation of DP an IL statute that prohibited bastards from inheriting from the father. While not subject to ss, bastards are due intermediate scrutiny, and the state interest in obtaining reliable proof of parentage was not rationally related to the total disinheritance.
a.             But see: Lalli v. Lalli, 439 US 259, scotus upheld NY statute disinheriting bastards unless father married mother or there was a ct adjudication that daddy was daddy w/in daddy’s lifetime.
                                                    iii.             Uniform Parentage Act will create a parent-child relationship between daddy and bastard if child lives w/ daddy while kid is less than two and daddy holds kid out as his own; or daddy acknowledges kids as his own in a properly filed writing
                                                    iv.             Most states recognize parentage if dad marries mom, acknowledges kids, gets adjudicated during his life, or by clear and convincing proof after death.
a.             Equitable legitimacy: allows kid to inherit (where required) if there is clear and convincing evidence of paternity and it was dad’s intent that kid be an heir (see Prince v. Black, 344 S.E.2d 411—this from the same GA SC that did not allow equitable adoption in O’Neal v. Wilkes).
b.             Exhumation to establish paternity.  CT current allows. NY will allow testing on stored samples, but no one is getting dug up. The trend in most states is to allow digging into the past.
c.              Some states will allow folk claiming to be kids who claim to be naturally conceived kids of DG to have DG’s undisputed daughter submit a DNA sample for comparison. Some states will not.
F.ART and New Forms of Parentage (Posthumous conception)
                                                        i.             Generally, posthumously conceived kids are bastards, since their parents were not married at the time of conception.
                                                      ii.             Woodward v. Comm’r of Soc. Sec.: W did IUI w/ dead hubby’s sperm and got twins. Fed law allowed benefits to DG’s surving kids. The issue was whether or not the twins were surving kids. Ct balanced the state’s need for orderly succession and folks’ need to direct their own procreation. 
a.             Case was remanded to determine by CCE if:
                                                                                            i.                         Twins were the genetic kids of DG; and
                                                                                          ii.                         That DG intended to conceive them.
b.             Some states clearly allow posthumously-conceived kids to take as heirs. This same issue in this case was raised in LA, which required a successor to ‘exist at the time of death.’ Comm’r mooted the issue by extending the benefits voluntarily.
                                                    iii.             Hecht v. Superior Court, 20 Cal. Rptr. 2d 275 (101). DG devised sperm in a bank to his girlfriend with a proviso and notifying the bank that she could use it for procreation. There was a question as to whether or not this was property that could be devised. 13A eliminates a property interest in human beings, and this walks up closely to that line. Ct decided it was not property, but was in the nature of property, and, therefore, subject to probate ct jurisdiction. 
a.             NB, there is also uncertainty about who owns a corpse.
                                                    iv.             R3Property holds a PC kid will inherit if he is conceived w/in a reasonable time after DG’s death, indicating DG’s desire that kid be conceived. 
                                                      v.             Uniform Parentage Act denies parentage unless donor states in a record that he will accept parentage of PC kid. 
                                                    vi.             CA is even more strict: there must be a writing that donor consented to PC kids, user must serve notice of intent to inseminate w/in 4 months of DG’s death, and kid must be in utero w/in 2 years.