ESTATE PLAN BY DEFAULT-THE LAW OF INTESTATE SUCCESSION

1
ESTATE PLAN BY DEFAULT-THE LAW OF INTESTATE
SUCCESSION
2
SHARE OF INTESTATES SPOUSE

• Under the Common Law
• Dower
• Curtesy
• Uniform Probate Code
• Iowa Probate Code

3
JANUS V. TARASEWICZ
4
Simultaneous Death

• Problem 1, Page 85
• Does the UPC 120 hour rule, solve the problem
  created by the no sufficient evidence rule of
  the UPC.

5
SHARES OF INTESTATES CHILDREN

• SHARE OF CHILDREN
• Uniform Probate Code
• Iowa Code

6
SHARES OF INTESTATES MORE REMOTE
DESCENDANTS(Grandchildren, great-grandchildren,
etc.

• CHILDREN vs. ISSUE (Descendants)
• Immediate Offspring
• More remote descendants
• PER CAPITA DISTRIBUTION
• PER STIRPES DISTRIBUTION

7
As Family Tree
A
B
C
E
D
8
As Growing Family Tree
A
B
C
E
D
gb2
gb1
gb3
9
As More Growing Family Tree
A
B
C
E
D
gb2
gb1
gb3
gc
10
As More Growing Family Tree
A
B
C
E
D
gb2
gb1
gb3
gc
gd1
gd2
11
As Whole Family Tree
A
B
C
E
D
gb2
gb1
gb3
gc
gd1
gd2
ge
12
As Whole Family Tree
A
gb2
gb1
gb3
gc
gd1
gd2
ge
13
As Family TreeChildren, Grandchildren and More
Remote Descendants
All issue survive B, C and D take 1/3 each
14
As Family TreeChildren, Grandchildren and More
Remote Descendants B, C and D predecease A
In Iowa E and F take 1/6 G, H and I take 1/9 J
and K take 1/6
Under UPC E through K take 1/7 each
15
As Family TreeChildren, Grandchildren and More
Remote Descendants B, C, D, F and J predecease A.
Under the UPC E, G, H, I and K take 1/7 M, N O
and P take 1/14 (2/28)
In Iowa E takes 1/6 M, N and O take 1/18 G, H,
and I take 1/9 J and K take 1/6
16
As Family TreeChildren, Grandchildren and More
Remote Descendants B, C, F, G, H, I, J and K
predecease A
Under the UPC E takes 1/3 M, N, O and P take 1/6
(2/12)
In Iowa E takes ¼ M, N and O take 1/12 P takes
1/2
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Negating Inheritance
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Shares of Intestates Ancestors and Collaterals

• Civil law consanquinity, page 92
• Parentelic method
• Parents
• Their Descendants
• Whole Blood
• Half Blood

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HALF-BLOOD INHERITANCE
1/2
1/2
F
M
SF
I
B
A
F and M have Child A and Child I M and F divorce
or F dies. Then M marries SF they have Child B I
dies. A takes ½ from F, and ¼ from M B takes ¼
from M
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Shares of Intestates Ancestors and Collaterals

• Parents and their issue
• Grandparents and their issue
• Great-grandparents and their issue (Iowa but not
  UPC)
• Issue of intestates deceased spouse
• Collateral Relatives
• The Iowa Early Escheat Rule

21
The Meaning of Children

• Adopted Children
• Legally Adopted
• Equitable (virtual) adoption
• Children born out-of-wedlock
• Inheritance from mother
• Inheritance from father

22
The Meaning of Children

• Posthumous Children
• Conceived before death
• Coitus
• Post-death implantation of embryo created before
  death with decedents egg or sperm
• Conceived after death
• Post-death conception using decedents sperm or
  egg
• Post-death implantation of embryo created before
  death with decedents egg or sperm

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HALL vs. VALLANDINGHAM
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Adopted Children

• Take from adopting parents
• Do not take from biological parents
• Step-parent adoption exception

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Step-Parent Adoption Exception
Dad
Mom
Child
26
Step-Parent Adoption Exception
Dad
Mom
Child
27
Step-Parent Adoption Exception
Dad
Mom
Dad 2
Child
28
Step-Parent Adoption Exception
Dad
Mom
Dad 2
Adoption
Child
29
Step-Parent Adoption Exception
Grandma
Dad
Mom
Dad 2
Adoption
Child
30
Adopted Children

• For purposes of intestate succession
• Under the will of
• The adopter
• Third persons
• E.g., T wills property to A for life, then to As
  children

31
New Reproductive Technologies

• Children born to married persons with use of
  artificial insemination
• Husband as donor
• Stranger as donor
• Surrogacy
• Inheritance from contracting parents
• Inheritance from biological parents
• Inheritance from birth mother

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Adopted Adults

• For intestacy purposes
• Under will of third party

33
ONeal v. Wilkes

• Facts, holding, and critique
• Equitable (or virtual) adoption
• Requirements
• Promise to adopt
• Holding out
• Inheritance from
• Promisor
• Others
• Adopted child

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Biological Child (Once known as
Child-Born-Out-of-Wedlock or Illegitimate)

• Inherit from Mother
• And through
• Inherit from Father
• And through?
• Proof issues
• Evidence proving paternity available during
  fathers lifetime
• General and notorious recognition
• Recognition in writing
• Should there be a distinction?
• Would a distinction be constitutional?

35
Posthumous Children

• Children conceived before intestates death
• Children conceived after intestates death
• Massachusetts and New Jersey cases

36
Hecht vs. Superior Court
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Advancements

• Common law rule
• Purpose of rule
• Creation of the hodgepot

38
Parent has 450,000 Parent gives 50,000 to Child
A Parent dies with 400,000 and three children,
A, B and C Court determines transfer to A was an
advancement Hodgepot 400,000 (probate estate
50,000 (advancement 450,000 /3
150,000 From 400,000 Probate Estate A gets
100,000 and each of B and C gets 150,000
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Advancements

• Problems with the rule
• Statutory solutions
• UPC
• Iowa Code
• Problem, page 131

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Problem 136
41
Bars to Succession

• Homicide
• Disclaimer

42
Homicide

• Should slayer be barred?
• If slayer should be barred,
• Is slayer deemed to have predeceased victim?
• Does slayer hold as constructive trustee?
• In Re Estate of Mahoney

43
Homicide

• Iowa Code 633.535 (1)
• Effects of
• Criminal conviction
• Criminal acquittal

44
Disclaimer

• Common law rules
• Intestacy
• Wills
• Reasons to permit
• Tax savings
• Defeat creditors claims

45
Disclaimer

• Statutory rules
• Federal law I.R.C. 2518
• Iowa Code 633.704

46
Problem and Cases

• Troy v. Hart
• What are the facts of this case?
• Was the disclaimer motivated by a desire to
  swindle Medicaid.
• Was the disclaimer valid?
• Can Medicaid get reimbursed?
• Should Medicaid be reimbursed?
• Problem, page 150

47
Iowa Code 633.535(1)

• A person who intentionally and unjustifiably
  causes or procures the death of another shall not
  receive any property, benefit, or other interest
  by reason of the death as an heir, distributee,
  beneficiary, appointee, or in any other capacity
  whether the property, benefit, or other interest
  passed under any form of title registration,
  testamentary or nontestamentary instrument,
  intestacy, renunciation, or any other
  circumstance. The property, benefit, or other
  interest shall pass as if the person causing
  death died before the decedent.

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Iowa Code 633.224

• When the owner of property transfers it as an
  advancement to a person who would be an heir of
  such transferor were the latter to die at that
  time, and the transferor dies intestate, then the
  property thus advanced shall be counted toward
  the share of the transferee in the estate, (which
  for this purpose only shall be increased by the
  value of the advancement at the time the
  advancement was made). The transferee shall have
  no liability to the estate for such part, if any,
  of the advancement as may be in excess of the
  transferee's share in the estate as thus
  determined. Every gratuitous inter vivos
  transfer is presumed to be an absolute gift, and
  not an advancement. Such presumption is
  rebuttable.

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Section 633.211

• If the decedent dies intestate leaving a
  surviving spouse and leaving no issue or leaving
  issue all of whom are the issue of the surviving
  spouse, the surviving spouse shall receive the
  following share
• 1. All the value of all the legal or equitable
  estates in real property possessed by the
  decedent at any time during the marriage, which
  have not been sold on execution or by other
  judicial sale, and to which the surviving spouse
  has made no relinquishment of right.
• 2. All personal property that, at the time of
  death, was, in the hands of the decedent as the
  head of a family, exempt from execution.
• 3. All other personal property of the decedent
  which is not necessary for the payment of debts
  and charges.

IC 633.212
50
SECTION 633.212

• If the decedent dies intestate leaving a
  surviving spouse and leaving issue some of whom
  are not the issue of the surviving spouse, the
  surviving spouse shall receive the following
  share
• 1. One-half in value of all the legal or
  equitable estates in real property possessed by
  the decedent at any time during the marriage,
  which have not been sold on execution or by other
  judicial sale, and to which the surviving spouse
  has made no relinquishment of right.
• 2. All exempt personal property .
• 3. One-half of all other personal property of
  the decedent which is not necessary for the
  payment of debts and charges.
• 4. If the property received by the surviving
  spouse under subsections 1, 2 and 3 of this
  section is not equal in value to the sum of fifty
  thousand dollars, then so much additional of any
  remaining homestead interest and of the remaining
  real and personal property of the decedent that
  is subject to payment of debts and charges
  against the decedent's estate, after payment of
  the debts and charges, even to the extent of the
  whole of the net estate, as necessary to make the
  amount of fifty thousand dollars.

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SECTION 633.219 (1)

• The part of the intestate estate not passing to
  the surviving spouse, or if there is no surviving
  spouse, the entire net estate passes as follows
• 1. To the issue of the decedent per stirpes.

Children Slide
Descendant Slide
52
SECTION 633.219 (2-3)

• The part of the intestate estate not passing to
  the surviving spouse, or if there is no surviving
  spouse, the entire net estate passes as follows
• 1 . . . .
• 2. If there is no surviving issue, to the
  parents of the decedent equally and if either
  parent is dead, the portion that would have gone
  to such deceased parent shall go to the survivor.
  
• 3. If there is no person to take under either
  subsection 1 or 2 of this section, the estate
  shall be divided and set aside into two equal
  shares. One share shall be distributed to the
  issue of the decedent's mother per stirpes and
  one share shall be distributed to the issue of
  the decedent's father per stirpes. If there are
  no surviving issue of one deceased parent, the
  entire estate passes to the issue of the other
  deceased parent in accordance with this
  subsection.

Parents
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Section 633.219 (4) AND (5)

• 4. If there is no person to take under subsection
  1, 2, or 3 of this section, and the decedent is
  survived by one or more grandparents or issue of
  grandparents, half the estate passes to the
  paternal grandparents, if both survive, or to the
  surviving paternal grandparent if only one
  survives. If neither paternal grandparent
  survives, this half share shall be further
  divided into two equal subshares. One subshare
  shall be distributed to the issue of the
  decedent's paternal grandmother per stirpes and
  one subshare shall be distributed to the issue of
  the decedent's paternal grandfather per stirpes.
  If there are no surviving issue of one deceased
  paternal grandparent, the entire half share
  passes to the issue of the other deceased
  paternal grandparent and their issue in the same
  manner. The other half of the decedent's estate
  passes to the maternal grandparents and their
  issue in the same manner. If there are no
  surviving grandparents or issue of grandparents
  on either the paternal or maternal side, the
  entire estate passes to the decedent's surviving
  grandparents or their issue on the other side in
  accordance with this subsection.
• 5. If there is no person to take under subsection
  1,2,3, or 4 of this section, and the decedent is
  survived by one or more great-grandparents or
  issue of great-grandparents, the estate passes
  equally to each set of great-grandparents, or to
  their issue, if any survive, per stirpes.

G-Parents
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Section 633.219 (5-6)

• 5. If there is no person to take under
  subsection 1, 2, 3, 4, or 5 of this section, the
  portion uninherited shall go to the issue of the
  deceased spouse of the intestate, per stirpes.
  If the intestate has had more than one spouse who
  died in lawful wedlock, it shall be equally
  divided between the issue, per stirpes, of those
  deceased spouses.
• 6. If there is no person who qualifies under
  either subsection 1, 2, 3, 4, or 5 of this
  section, the intestate property shall escheat to
  the state of Iowa.

633.219 (2-3)
633.219 (4)
55
Effect of AdoptionIowa Code 633.223 (1)-(2)

• 1.Except as provided in subsection 3, a lawful
  adoption extinguishes the right of intestate
  succession of an adopted person from and through
  the adopted person's biological parents. The
  adopted person inherits from and through the
  adoptive parents in the same manner as a
  biological child inherits from and through the
  child's biological parents.
• 2. Except as provided in subsection 3, a lawful
  adoption extinguishes the right of intestate
  succession of a biological parent from and
  through the parent's biological child who is
  adopted. The adoptive parents inherit from and
  through the adopted person in the same manner as
  biological parents inherit from and through the
  parents' biological child.

Go To 633.223 (3)-(4)
56
Step-Parent AdoptionIowa Code 633.223 (2)-(3)

• 3. An adoption of a person by the spouse or
  surviving spouse of a biological parent has no
  effect on the relationship for inheritance
  purposes between the adopted person and that
  biological parent or biological parent's heirs.
  An adoption of a person by the spouse or
  surviving spouse of a biological parent after the
  death of the other biological parent has no
  effect on the relationship for inheritance
  purposes between the adopted person and the
  deceased biological parent's heirs.
• 4. A person inherits through an adopted person,
  an adoptive parent, or a biological parent of an
  adopted person only if the adopted person,
  adoptive parent, or biological parent of an
  adopted person would have inherited under
  subsection 1, 2, or 3.

IC 633(1)-(2)
57
Posthumous ChildrenIowa Code 633.220

• Heirs of an intestate, begotten before the
  intestate's death but born thereafter, shall
  inherit as if they had been born in the lifetime
  of the intestate and had survived the intestate.
  With this exception, the intestate succession
  shall be determined by the relationships existing
  at the time of the death of the intestate.

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Children Born Out-of-WedlockIowa Code 633.221
633.222

• 633.221. Biological child--inherit from mother
• Unless the child has been adopted, a biological
  child shall inherit from the child's biological
  mother, and she from the child.
• 633.222. Biological child--inherit from father
• Unless the child has been adopted, a biological
  child inherits from the child's biological father
  if the evidence proving paternity is available
  during the father's lifetime, or if the child has
  been recognized by the father as his child but
  the recognition must have been general and
  notorious, or in writing. Under such
  circumstances, if the recognition has been
  mutual, and the child has not been adopted, the
  father may inherit from his biological child.