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Intestate Succession

Intestate Succession. When does intestacy occur?. 1. As to person – total intestacy. When does intestacy occur?. 1. As to person – total intestacy 2. As to property – partial intestacy. Protection of Surviving Spouse at Common Law. Problem at common law = spouse not an heir.

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Intestate Succession

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  1. Intestate Succession

  2. When does intestacy occur? • 1. As to person – total intestacy

  3. When does intestacy occur? • 1. As to person – total intestacy • 2. As to property – partial intestacy

  4. Protection of Surviving Spouseat Common Law • Problem at common law = spouse not an heir

  5. Protection of Surviving Spouseat Common Law • 1. Dower for Widow • Life estate in 1/3 of the real property husband owned at death or anytime during the marriage.

  6. Protection of Surviving Spouseat Common Law • 2. Curtesy for Widower • Life estate in all wife’s real property if, and only if, at least one child was born to the marriage.

  7. Protection of Surviving Spouseat Modern Law • 1. Spouse made an heir – PC § 3(o); EC § 22.015

  8. Protection of Surviving Spouseat Modern Law • 2. Common Law Marital Property States -- Spouse’s right to a forced (elective) share

  9. Protection of Surviving Spouseat Modern Law • 3. Community Property States – Spouse’s ownership of ½ of the community property

  10. Intestate Succession -- Texas • Starting point = Was intestate married at time of death? • If no, follow “individual” property scheme. • If yes, follow “community” and “separate” property schemes. [Warning: If intestate died before 9/1/1993, rules are different.]

  11. Married Intestate CommunityProperty – PC § 45; EC § 201.003 • 1. No surviving descendants • SS inherits all of DS’s community [SS ends up owning all community property].

  12. Married IntestateCommunity Property • 2. At least one surviving descendant • Only marital descendants = SS inherits all of DS’s community property (SS ends up owning all community property).

  13. Married IntestateCommunity Property • 2. At least one surviving descendant • Only marital descendants = SS inherits all of DS’s community (SS ends up owning all community property). • At least one non-marital descendant = DS’s descendants inherit DS’s community (SS inherits none of the community; SS still has his/her ½).

  14. Married Intestate Separate Property – PC § 38(b); EC § 201.002 • 1. At least one surviving descendant • Personal Property = • Surviving Spouse = 1/3 • Descendants = 2/3

  15. Married IntestateSeparate Property • 1. At least one surviving descendant • Real Property = • Surviving Spouse = Life estate in 1/3 • Descendants = 2/3 (outright) plus remainder of SS’s life estate.

  16. Married IntestateSeparate Property • 2. No surviving descendants • Personal Property = • Surviving Spouse = 100%

  17. Married IntestateSeparate Property • 2. No surviving descendants • Real Property = • Surviving Spouse = ½ • Parents, siblings, and their descendants = ½ using the individual property scheme. • Note: If no parents or their descendants, then all to SS.

  18. Intestate Succession Individual Property – PC § 38(a); § 201.001 • 1. Descendants

  19. Intestate SuccessionIndividual Property • 1. Descendants • 2. Parents

  20. Intestate SuccessionIndividual Property • 1. Descendants • 2. Parents • 3. If one parent predeceased, ½ to surviving parent and ½ to siblings and their descendants. [If none, all to surviving parent.]

  21. Intestate SuccessionIndividual Property • 1. Descendants • 2. Parents • 3. If one parent predeceased, ½ to surviving parent and ½ to siblings and their descendants. [If none, all to surviving parent.] • 4. If both parents predeceased, all to siblings and their descendants.

  22. Intestate SuccessionIndividual Property • 1. Descendants • 2. Parents • 3. If one parent predeceased, ½ to surviving parent and ½ to siblings and their descendants. [If none, all to surviving parent.] • 4. If both parents predeceased, all to siblings and their descendants. • 5. Grandparents and their descendants, etc., etc., etc.

  23. Distribution Methods • When there are heirs from more than one generation, you must determine how the state allocates among the different generations. • Three approaches.

  24. 1. Per Stirpes

  25. 2. Per Capita with Representation EC § 201.101 § 43 PC

  26. 3. Per Capita at Each Generation

  27. Problem 1, Page 4

  28. Problem 2, Page 4

  29. Problem 3a, Page 5

  30. Problem 3b, Page 5

  31. Problem 3c, Page 5

  32. Problem 3d-1, Page 5

  33. Problem 3d-2, Page 5

  34. Problem 3d-3, Page 5

  35. Problem 4, Page 5

  36. Problem 5, Page 5

  37. Ancestral PropertyPC § 39; EC §§ 201.102 & 201.103 • Common law doctrine abolished. • All of intestate’s property treated as if he/she was the original purchaser.

  38. What if one side of family has “died out”? • State v. Estate of Loomis – p. 6

  39. How does inheritance pass if an intermediary predeceases? • Powers v. Morrison – p. 9

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