Non-Probate Property
- Inter Vivos Gifts
- Living Trusts
- Future Interests
- Joint Tenancy
- Assets Held in Pay on Death
REMOVE BEFORE DIVISION
Intestacy
Where **there is no will, **or will disposes of less than all of decedent’s property, the remaining property is distributed statutorily through intestacy
Intestacy Choice of Law
Ownership: law of decedent’s domicile at time of acquisition
Personal Property: State of Domicile at Death
Real Property: Situs of the Property
Surviving Spouse’s Share of CP and QCP in Intestacy
Receives 1/2 and retains the other 1/2 (ends up with all of it)
Surviving Spouse’s Share of SP in Intestacy
1/3: if survived by multiple children / descendants of children who died
1/2 if survived by (i) one child or child’s descendant’s if dead; OR (ii) parent or descendent of parent (brother/sister/neice/nephew)
ALL: if no surviving descendents, no surviving parents, and no surviving descendents of parents
Distribution of Shares by Intestacy Not Passing to Spouse
Per Capita w/ Representation: property divided at first generation where there is a surviving member equally
surviving members of generation take share and descendants of deceased members divide their shares
Distribution at Intestacy where no Descendants
- Parents
- Descendants of Parents
- Descendants of Grandparents
- Descendenats of Predeceased Spouse (stepchildren)
- Next of Kind
- Parents of predeceased spouse and their descendants
- Escheat to the State
Property of testator inherited from Pre-Deceased Spouse at Intestacy
Passes to Pre-Deceased Spouse heir unless:
- Real property and spouse did not die more than 15 years ago or
- Personal property > $10,0000 unless deceased spouse died at least 5 years earlier
Adoptive Children
Treated as part of adoptive family’s family tree
Will not inherit from biological parent unless adoption was by a stepparent
Stepchildren
Treated as Adoptive children IF:
- relationship began when child was minor and continued through joint lifetimes;
- clear and convincing evidence adoption prevented by legal barrier
- Adoption by Estoppel based on parent’s actions
Non-Marital Children
Inherits from Mother if proof M gave brith to child
Inherits from Father if:
1.F married to M within 300 days of birth
2. F attempt to marry mother after child’s birth and F name on birth certificate
3. Chld Support payment
4. Paternity action (clear and convincing evidence)
Advancements
Irrevocable lifetime gift intended as pre-payment of inheritance based on writing of the donor or donee
use hodgepot process to distribute
Disclaiming Property
Requires:
1. Writing
2. Signed by Disclaiment
3. Identifying Decedent
4. Describing Disclaimed Property
5. Notarized
6. File within 9 months after death
7. No benefits of property accepted
EFFECT: treated as if you predeceased testator
