1. Introduction to Intestate Succession
a. UPC drafted in 1969 to simplify, unify & reform law
i. Has had a tremendous impact on state law – 1/3 of states have it in full, nearly all states have enacted part of it.
ii. UPC good vehicle for discussing reform movement
iii. Has undergone several revisions – 1990 – big overhaul
iv. 1990 Code – policy objectives –
1. unity of probate and non-probate transfers
2. Gender equality
3. De-emphasis on formalism in the law of wills
4. Greater emphasis on changing nature of families (multiple marriages)
b. Testamentary Freedom – Big in American Law
i. Right of an individual to pass along their belongings to whoever they want to at death.
ii. Main function of wills and trusts law is to give effect to testamentary intent.
iii. Testamentary intent reinforces family ties:
1. provide for their families after their deaths
2. Can be used to encourage children to behave properly and respect their parents (or risk being cut out of the will).
3. Encourages people to make money and save – good for the economy.
c. Limitations on Testamentary Freedom:
i. Cannot completely disinherit spouses.
1. But can completely disinherit children
ii. Rule against perpetuity.
1. “Dead hand” control – try to avoid those who create the will from exercising too much control over those who benefit
iii. Can’t issue order to administrator to destroy your property.
i. Decedent- person who has died
ii. To die testate – have a will – will determines how property is transferred
1. Person – testator
iii. To die intestate – do not have a will – state intestate succession statutes/ statutes of descent and distribution
1. Person – simply called the Decedent, no special name
2. Default for items not covered by will or trust
1. Land – when given devise, action – to devise, receiver – devisee
2. Personal Property – when given bequest, action – to bequeath, Taker – Legatee
1. Land – when given descends, taker – heirs
2. Personal Property – When given – distributed, taker – next of kin/distributees
e. UPC 2-101 Intestate Estate.
i. Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in this Code, except as modified by the decedent’s will.
ii. A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent’s intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his [or her] intestate share.
2. Share of Surviving Spouse
a. UPC 2-102 Share of Spouse.
The intestate share of a decedent’s surviving spouse is:
a. The entire intestate estate if:
i. No descendant or parent of the decedent survives the decedent; or
ii. All of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;
b. The first [$ 300,000], plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent;
c. The first [$ 225,000], plus one-half of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent;
d. The first [$ 150,000], plus one-half of any balance of the intestate estate, if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse.
b. UPC 2-103(a) Share of Heirs other than Surviving Spouse.
i. Any part of the intestate estate not passing to the decedent’s surviving spouse under Section 2-102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent:
1. To the decedent’s descendants by representation;
2. If there is no surviving descendant, to the decedent’s parents equally if both survive, or to the surviving parent;
3. If there is no surviving descendant or parent, to the descendants of the decedent’s parents or either of them by representation;
4. If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents:
A. Half to the decedent’s paternal grandparents equally if both survive, to the surviving paternal grandparent if only one survives, or to the descendants of the decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation;
B. Half to the decedent’s maternal grandparents equally if both survive, to the maternal grandparent if only one survives, or to the descendants of the decedent’s maternal grandparents or either of them if both are deceased, the descendants taking by representation;
5. If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents on the paternal side, but not the maternal side, or on the maternal but not the paternal side, [the entire estate goes to those surviving relatives].
c. The Meaning of Heirs and the Transfer of an Expectancy:
i. English Per Stirpes (Strict Per Stirpes)
1. Divide the property into as many shares as there are living children of the designated person and deceased children who have descendants living.
2. Originates in English Primogeniture
3. Treats each line of descendants equally
4. Followed in about 14 states
ii. Modern Per Stirpes
1. Look to see if there are any children surviving the decedent.
A. If there is at least one surviving child, the distribution is the same as English Per Stirpes.
2. However, where no children survive the decedent, then the estate is divided equally at the first generation in which there are living takers, which is usually the decedent’s grandchildren.
3. This system treats each line beginning at the closest living generation equally.
iii. Per Capita at each Generation (1990 UPC)
1. Initial division of shares is made at the level where one or more descendants are alive (as under Modern Per Stirpes), but the shares of deceased persons on that level are treated as one pot and are dropped down and divided equally among the representatives on the next generational level.
2. This system treats each taker at each generation equally with the other takers at that generation.
A. The premise is that those equally related to the decedent should take equal shares: “Equally near, equally dear.”
c. Negative Disinheritance:
i. Negative disinheritance is an express statement in a will disinheriting a descendant.
ii. Children are constructively disinherited when their parents leave their estate to the surviving spouse rather than to the children.
iii. Under traditional American law, disinheritance is not possible by declaration. Instead a testator must devise their entire estate to other people. Anything devised by intestacy laws will still be divided among the disinherited heir.
d. Shares of Ancestors and Collaterals
i. All persons who are related by blood to the decedent but who are not descendants or ancestors are called collateral kindred. Descendants of the decedent’s parents, other than the decedent and the decedent’s issue are called first-line collaterals.
ii. Descendants of the decedent’s grandparents other than decedent’s parents and their issue, are called second-line collaterals.