Wills and Trusts

Generally, what is Freedom of Disposition? Generally, what are some of its restrictions?

1. Property owners have the nearly unrestricted right to dispose of their property as they please, subject to some restrictions

   1. Restrictions exist to curtail transfers with a purpose that is prohibited or restricted by an overriding rule of law

      1. Creditors rights, spousal rights, unreasonable restraints on alienation or marriage, racial or categorical restrictions, encouraging illegal activity, RAP and Rule against Accumulations

Shapira v. Union National Banks (Facts, Rule, Takeaways, Jx Split)

1. Refresher facts

   1. Dad left share to 3 children, but for boys share was contingent upon marrying Jewish girl no later than 7 years after death

2. Rules

   1. A partial restraint of marriage which imposes only reasonable restrictions is valid, and not contrary to public policy

      1. An absolute restraint would not be upheld

      2. Reasonableness of condition has temporal and geographic components

      3. Subjective conditions (“devout Jewish girl”) not sufficient

   2. The great weight of authority in the United States is that gifts conditioned upon the beneficiary’s marrying within a particular religious class or faith are reasonable (partial restraint)

3. Further takeaways

   1. Strong policy in favor of effectuating the intent of the deceased subject to PP

   2. Const challenges difficult because there must be state action

      1. Shelley v Kraemer protects from state action prohibited by state statute

4. Jurisdictional split

   1. Restatement (Third) of Trusts 

      1. In determining whether violates PP, courts should balance donor’s FOD against other social values and the effects of DH control on the subsequent conduct or personal freedoms of others”

      2. Restricting based on marriage pertaining to a particular faith would be INVALID

Hodel v. Irving (Facts, Rule, Takeaways)

1. Refresher facts

   1. Congress’s 1983 Indian Land Consolidation Act §207 barred inheritance of tiny fractional trust interests, forcing escheat to tribes, which Sioux heirs challenged.

2. Rules

   1. A total abrogation of the rights to descend and devise property will not be upheld

3. Takeaways

   1. Tragedy of the anti-commons. Granted too many people property rights, preventing effective use

   2. 5th amendment taking where the value was not de minimis, statute was overbroad, and statute took away right to transmit by descent and devise

      1. If one of these were different, outcome may have changed

Shaw Family Archives v. CMG Worldwide (Facts, Rule, Takeaways, Jx Split)

1. Refresher facts:

   1. Marilyn Monroe, residuary clause for remaining property rights

   2. Right of publicity did not exist at time of death

2. Rule

   1. An individual cannot pass by will a statutory property right they did not have at time of death

   2. It instead passes by intestacy

3. Other Takeaways

   1. Five months after Shaw, CA signed amended legislation to recognize a posthumous right of publicity that is devisable at death, even by a general residuary clause in a will made before the statute was enacted

4. Jurisdictional Split

   1. Under UPC, posthumously acquired property passes by will (with sufficient language in will to support it)

Define: Expectancy

A donee’s interest in a future inheritance, which remains subject to the donor’s change of mind

Define: Will and its features

1. Doc signed by person indicating where they want property to go when they die

2. Two types

   1. Formal wills

      1. Witness requirements

   2. Holographic wills

      1. Handwritten wills valid in half of States (including CA)

3. Effective at time of death

4. Included in will

   1. Guardian for minor children. Primary and two alternates

   2. Residuary clause

What laws applies to real property, personal property?

1. Generally, law of the state where the decedent was domiciled at death governs the disposition of personal property

   1. Will is thus first probated in the Jx of domicile at death

   2. This is primary or domiciliary jurisdiction

2. Generally, the law of the state where the decedent’s real property is located governs the disposition of real property

   1. Ancillary probate in this Jx is required if there is real property there

   2. To avoid the costs and delay of an ancillary probate proceeding, lawyers commonly advise clients with real estate in another jurisdiction to put the property in an inter vivos trust

Define: Personal representative

 fiduciary appointed in probate to collect, manage, and distribute estate; includes executor (named in will) or administrator (court-appointed)

Define: Fiduciary duty

Inventory property, protect/manage assets, process creditor claims, file tax returns, distribute property

Define: Relation-back doctrine

 authority of personal representative relates back to pre-appointment actions (e.g., securing valuables)

Define: Testate and Intestate

1. Testate: dying with a valid will

2. Intestate: dying without a will

Define: Executor

personal representative named in will

Define: Administrator

court-appointed personal representative (selected by statutory priority list, typically surviving spouse, children, parents, siblings, creditors)

Define: Devise

transfer of real property by will

Define: Devisee/legatee

person receiving property under a will

Define: Descent

transfer of real property of an intestate decedent to heir

Define: Intestacy statute (statute of descent and distribution)

governs inheritance for both real and personal property in intestacy

Define: Heirs/Next of Kin, Heirs apparent

1. Heirs/next-of-kin: persons designated by statute to take intestate property

2. Heirs apparent: persons who would inherit from a living person if they died at that moment

Define: Power of Appointmnet

gives power to someone else to decide where property goes (like deciding which kid to give a house to)

What are probate, probate property, and nonprobate property?

1. Probate = to have an estate administered in probate court

   1. Property that passes through a decedent’s will or by intestacy is said to be probate property

   2. Property that passes by will substitute outside of probate is nonprobate property

How are digital assets handled in probate?

1. Digital assets are difficult to access by the personal representative to wind up the decedent's affairs

2. Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA),  (2015, adopted in 45 states by 2020)

   1. Personal representative cannot access content of decedent’s electronic communications without express consent (will, trust, power of attorney, or online tool)

   2. But Representative may access records/metadata (dates, times, sender and recipient addresses) of electronic communications

   3. Posthumous digital asset control follows a hierarchy:

      1. User’s instructions in an online tool provided by the service provider (highest priority, similar to POD/TOD designations)

      2. User’s instructions in a will, trust, power of attorney, or other written document

      3. Terms-of-service agreement for the account

   4. If no user instructions and TOS prohibits fiduciary access, RUFADAA default rules bar fiduciary access

Three core functions of probate

1. it provides evidence of transfer of title to the new owners, making the property marketable again and allowing the new owner to fend off rival claimants; 

2. it protects creditors by providing a procedure for payment of the decedent’s debts; and

3.  it distributes the decedent’s property to those intended after the decedent’s creditors are paid.

What are the four main will substitutes?

1. Inter vivos trust

   1.  Trust generally

      1. When property is put in trust, the trustee holds it for the benefit of one or more beneficiaries. The trustee distributes the property to the beneficiaries in accordance with the terms of the trust.

   2. Property held in a testamentary trust created under the decedent’s will passes through probate

   3. Property put in an inter vivos trust during the decedent’s life passes in accordance with the terms of the trust, avoiding probate administration

2. Pay on Death (POD) and Transfer on Death (TOD) Contracts

   1. Bank, brokerage, mutual fund, pensions, retirement accounts allow for this

   2. The account custodian distributes the property at the decedent’s death to the named beneficiary. To collect property held under a POD or TOD arrangement, all the beneficiary needs to do is file a death certificate with the custodian

3. Life Insurance

   1. The proceeds of a life insurance policy on the decedent’s life are paid by the insurance company to the beneficiary named in the insurance contract. The company pays upon receipt of a death certificate of the insured.

4. Joint Tenancy

   1. Under the theory of joint tenancy, the decedent’s interest vanishes at death. The surviving joint tenant owns the whole property free of the decedent joint tenant’s interest.

What is the first step for opening probate?

1. Each state has a detailed statutory procedure for issuance of letters testamentary to an executor or letters of administration to an administrator authorizing the person to act on behalf of the estate.

   1. A person appointed as administrator must give bond, which insures against mismanagement or misappropriation. In most states, if the will names an individual rather than a bank or other corporate fiduciary as executor, the executor also must give bond unless the will waives the bond requirement.

Define: Common Form and Solemn Form Probate

1. East of the Mississippi, many states use English system of distinguishing between contentious and noncontentious probate proceedings

   1. Executor has a choice between probating a will in common form for in solemn form

      1. Common form probate: ex parte, no notice, will proved by executor or witnesses, admitted immediately, executor begins administration

      2. Solemn form probate: initiated if an interested party files a caveat; requires notice to interested parties, testimony of attesting witnesses, and greater court involvement

      3. Many states still recognize both forms (often without using the original terminology)

Define: Formal and Informal Probate

1. UPC recognizes informal probate (ex parte; no prior notice) and formal probate (notice and judicial determination)

   1. Informal probate (§ 3-301)

      1.  representative petitions without giving notice; must include decedent and heir information and original will; executor swears to valid execution; no witness proof required; will admitted if it appears valid (§ 3-303)

      2. Within 30 days, representative must mail notice to all interested parties (§ 3-705), who may request formal probate (§ 3-402)

   2. Formal probate (§ 3-401):

      1. litigated proceeding with notice, used to probate a will, halt informal probate, or declare intestacy; results become final if not appealed

Define: Supervised and Unsupervised Administration. Which is the default?

1. Supervised administration (§ 3-501)

   1. personal representative operates under court supervision; court approval required for inventory, debts, allowances, sales, loans, taxes, fees, distributions, and discharge; representative cannot distribute without court approval (§ 3-504)

2. Unsupervised administration (§ 3-715): 

   1. representative manages and distributes estate like a trustee without court approval; collects assets, clears titles, sells property, invests, pays creditors, continues business, distributes estate

3. Default under UPC is unsupervised; interested parties may petition for supervision (§ 3-502)

   1. Rationale: family executors and beneficiaries usually reduce need for costly court oversight; informal estate handling and nonprobate transfers demonstrate effectiveness of unsupervised administration

What is a nonclaim statute and its forms?

1. Every state has nonclaim statute

   1. Requires creditors to file claims within a specific time period. Filed late = barred

   2. Two forms of nonclaim statute

      1. (1) they bar claims not filed within a relatively short period after notice is given that probate proceedings have commenced, generally two to six months (four months under UPC § 3-801); 

         1. creditors are usually notified of the requirement to file claims only by publication in a newspaper

      2. or (2) they bar claims not filed within a longer period after the decedent’s death, generally one to five years (one year under UPC § 3-803)

         1. Aka self-executing statutes—protection is provided after the time period has run whether or not probate proceedings are ever commenced.

What are the due process requirements with respect to creditors?

1. Due Process requires actual notice to known or reasonably ascertainable creditors before a notice-based probate statute can bar claims

2. Self-executing statutes of limitations (typically one year from death) do not require notice and have been upheld by courts

3. A creditor who did not receive notice under a notice-based statute may still be barred by the self-executing statute

How is an estate closed under Supervised and Unsupervised Administration?

1. Supervised Administration

   1. judicial approval is required to relieve the representative from liability, unless some statute of limitations runs upon a cause of action against the representative. The representative is not discharged from fiduciary responsibility until the court grants discharge.

2. Unsupervised Administration

   1. the estate may be closed by the personal representative, as under UPC § 3-1003, by filing a sworn statement that he has published notice to creditors, administered the estate, paid all claims, and sent a statement and accounting to all known distributees.

Can probate be avoided and how?

1. In short, yes

   1. Through will substitutes

2. Statutes in almost every state, and UPC §§ 3-1201 to 3-1204, permit the decedent’s successors to avoid probate if the amount of property involved is small, often requiring nothing more than an affidavit of the successor in a summary administration. In most states the figure defining a small estate eligible for summary administration ranges from $25,000 (as in UPC § 3-1201) to $100,000

What is Universal Succession?

1. Europe, Louisiana

   1. The heirs or the residuary devisees step into the shoes of the decedent at the decedent’s death, taking the decedent’s title and assuming all of the decedent’s liabilities and the obligation of paying legacies according to the decedent’s will

What is Spousal Succession in California?

1. Property that passes to a surviving spouse by intestacy or by will is not subject to administration unless the surviving spouse elects to have it administered. 

2. If the surviving spouse chooses not to have the property administered, the surviving spouse takes title to the property and assumes personal liability for the decedent’s debts chargeable against the property

How is disinheritance by will treated?

1. Honored nowadays

2. But minors and spouses will still be protected

CPC § 8200 – Custodian of Will:

1. Timing & Duties (a):

   1. Within 30 days of learning of testator’s death, custodian must:

      1. Deliver the original will to the clerk of the superior court where the estate may be administered (personally or by registered/certified mail)

      2. Deliver a copy of the will to:

         1. The executor, if known

         2. Otherwise, a beneficiary, if known

   2. Liability (b):

      1. Custodian who fails to comply is liable for all damages caused by the failure

   3. Clerk’s Role (c):

      1. Clerk releases a copy of the will for probate or other purposes upon:

         1. Payment of required fee

         2. Court order for production or certified death certificate of the decedent

CPC § 8226 – Conclusiveness & Time Limits for Probate: Key Points

1. Conclusive Probate (a):

   1. If no one contests or petitions for revocation within the statutory time, probate of the will is conclusive (subject to § 8007)

2. Effect of Subsequent Wills (b):

   1. A will can be admitted even if another will was previously probated or property already distributed

   2. Cannot alter property already distributed

   3. Court may decide how the new will affects undistributed property and interactions with other wills

3. Time Limits to Petition (c):

   1. Proponent may petition for probate within the later of:

      1. 120 days after order admitting first will or determining intestacy

      2. 60 days after the proponent first learns of the will

CPC § 8226 – Conclusiveness & Time Limits for Probate: Key Cases

1. Estate of Earley

   1. [S]ection 8226 provides filing deadlines for admitting a will to probate regardless of whether another will has already been admitted to probate or whether estate proceedings have already commenced based on a determination of intestacy.

2. Estate of Kelley

   1. § 8226(c) deadlines begin only when the will proponent receives notice of a probate or administration petition; mere general awareness of proceedings is insufficient.

CPC § 8502. Grounds for Removal

1. A personal representative may be removed from office for any of the following causes:

   1. The personal representative has wasted, embezzled, mismanaged, or committed a fraud on the estate, or is about to do so.

   2. The personal representative is incapable of properly executing the duties of the office or is otherwise not qualified for appointment as personal representative.

   3. The personal representative has wrongfully neglected the estate, or has long neglected to perform any act as personal representative.

   4. Removal is otherwise necessary for protection of the estate or interested persons.

   5. Any other cause provided by statute

CPC 28 - Community Property Defined

1. Community property” means:

   1. (a) Community property heretofore or hereafter acquired during marriage by a married person while domiciled in this state.

   2. (b) All personal property wherever situated, and all real property situated in this state, heretofore or hereafter acquired during the marriage by a married person while domiciled elsewhere, that is community property, or a substantially equivalent type of marital property, under the laws of the place where the acquiring spouse was domiciled at the time of its acquisition.

   3. (c) All personal property wherever situated, and all real property situated in this state, heretofore or hereafter acquired during the marriage by a married person in exchange for real or personal property, wherever situated, that is community property, or a substantially equivalent type of marital property, under the laws of the place where the acquiring spouse was domiciled at the time the property so exchanged was acquired.

How are Community Property and Quasi-Community Property treated upon death in CA?

CPC § 100 Community Property (101 Quasi-Community Property)

Upon death of married person/married person domiciled in this state, one half goes to spouse, one to the decedent

CPC 240 - Distributions to Issue

1. (Modern Per Stirpes)

   1. Divide the property into equal shares based on the number of living members in the nearest generation with surviving descendants, plus any deceased members of that generation who left descendants

   2. Each living member of that nearest generation receives one share

   3. The share of each deceased member of that generation who left descendants is divided equally among their living descendants, using the same method.

CPC § 6401 Intestate Share of Surviving Spouse

1. The decedent’s share of community property goes to surviving spouse, meaning they get 100%!!

2. Under 6401(c), separate property is distributed:

   1. (1) The entire intestate estate if the decedent did not leave any surviving issue, parent, brother, sister, or issue of a deceased brother or sister.

   2. (2) One-half of the intestate estate in the following cases:

      1. Where the decedent leaves only one child or the issue of one deceased child.

      2. Where the decedent leaves no issue but leaves a parent or parents or their issue or the issue of either of them.

   3. (3) One-third of the intestate estate in the following cases:

      1. (A) Where the decedent leaves more than one child.

      2. (B) Where the decedent leaves one child and the issue of one or more deceased children.

      3. (C) Where the decedent leaves issue of two or more deceased children.

   4. Even unmarried couples can be protected by intestate succession (common law marriage)

   5. Sometimes there can be an implied contract to make a will “I promise to take care of you for life”

Putative spouse doctrine

1. Estate of Leslie, 37 Cal. 3d 186, 689 P.2d 133, 207 Cal. Rptr. 561 (1984) held that a putative spouse (one who believed, contrary to fact, they were validly married) is entitled to surviving spouse’s share and to priority of appointment as administrator under the probate code.

2. In re Domestic Partnership of Ellis & Arriaga, 162 Cal. App. 4th 1000, 76 Cal. Rptr. 3d 401 (2008) held that the putative spouse doctrine applies to domestic partners.

CPC 6402 - Share Not Passing to Surviving Spouse

1. Part of the estate not passing to the SS goes as follows:

   1. To the children and their descendants (issue). If same degree, they share equally; if different degrees, follow Section 240.

   2. If no issue, to the parents equally.

   3. If no issue or parents, to siblings and their descendants. Same rules of equal or unequal degree apply under Section 240.
      
      

   4. If none of the above, to grandparents equally, or to their descendants if no grandparents survive. Same Section 240 rules apply.

   5. If none of the above, to the descendants of a predeceased spouse. Same Section 240 rules apply.

      1. Pre-deceased spouse must have died during the marriage. Does not apply to divorced spouse who then dies

   6. If none of the above, to next of kin of equal degree. If equal degree but through different ancestors, those through the nearer ancestor are preferred.

   7. If none of the above, to the parents of a predeceased spouse, or to their descendants if both parents are deceased. Same Section 240 rules apply.

CPC 220 - Simultaneous Death, In General

1. Except as otherwise provided in this chapter [§§ 220-226], if the title to property or the devolution of property depends upon priority of death and it cannot be established by clear and convincing evidence that one of the persons survived the other, the property of each person shall be administered or distributed, or otherwise dealt with, as if that person had survived the other.

CPC 6403 - 120 hour Survival Requirement for Intestate Succession

1. A person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for the purpose of intestate succession, and the heirs are determined accordingly. If it cannot be established by clear and convincing evidence that a person who would otherwise be an heir has survived the decedent by 120 hours, it is deemed that the person failed to survive for the required period. The requirement of this section that a person who survives the decedent must survive the decedent by 120 hours does not apply if the application of the 120-hour survival requirement would result in the escheat of property to the state.

   1. But, doesn’t apply if death was before January 1 1990

CPC § 6406. Relatives of the Halfblood

1. Except as provided in Section 6451, relatives of the halfblood inherit the same share they would inherit if they were of the whole blood.

UCC Section 2-101 Intestate Estate

1. (a) 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.

2. (b) 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.

UCC § 2-102. Share of Spouse

1. The intestate share of a decedent's surviving spouse is:

   1. (1) the entire intestate estate if:

      1. (A) no descendant or parent of the decedent survives the decedent; or 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;

   2. (2) 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;

   3. (3) 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;

   4. (4) 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.

UCC SECTION 2-103. SHARE OF HEIRS OTHER THAN SURVIVING SPOUSE

1. (a) Any part of the intestate estate not passing to a 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 who survive the decedent:

   1. (1) to the decedent’s descendants by representation;

   2. (2) if there is no surviving descendant, to the decedent’s parents equally if both survive, or to the surviving parent if only one survives;

   3. (3) if there is no surviving descendant or parent, to the descendants of the decedent’s parents or either of them by representation;

   4. (4) if there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived on both the paternal and maternal sides by one or more grandparents or descendants of grandparents:

      1. (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; and

      2. (B) half to the decedent’s maternal grandparents equally if both survive, to the surviving 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. (5) 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 on the paternal but not the maternal side, or on the maternal but not the paternal side, to the decedent’s relatives on the side with one or more surviving members in the manner described in paragraph (4).

2. (b) If there is no taker under subsection (a), but the decedent has:

   1. (1) one deceased spouse who has one or more descendants who survive the decedent, the estate or part thereof passes to that spouse’s descendants by representation; or

(2) more than one deceased spouse who has one or more descendants who survive the decedent, an equal share of the estate or part thereof passes to each set of descendants by representation.

UCC 2-105. No Taker

If there is no taker under the provisions of this [article], the intestate estate passes to the state.

Generally, 3 systems of distribution of shares

1. English per stirpes

2. Modern per stirpes

3. 1990 UCC under 2-106b, per capita at each generation

English per stirpes

1. Treats each line of descent equally. 

2. The property is divided into as many shares as there are living children of the designated person and deceased children who have descendants living (thus the decedent’s children are the root generation). The children of each deceased descendant represent their deceased parent and are moved into their parent’s position beginning at the first generation below the designated person

Modern per stirpes (CA)

1. Under this system, one looks first to see whether any children survived the decedent. 

2. If so, the distribution is identical to that under English per stirpes. 

3. If not, the estate is divided equally (per capita) at the first generation in which there are living takers, which is usually the generation of the decedent’s grandchildren. Under modern per stirpes, in other words, the root generation at which the decedent’s estate is divided into shares is the one nearest to the decedent in which one or more descendants of the decedent are alive. Any deceased descendant in that level is represented by her descendants using an English per stirpes distribution.

1990 UPC, per capita at each generation

1. UPC 2-106(b)

   1. The initial division of shares is made at the closest generation in which one or more descendants are alive (the same root generation 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 in the next generation.

Simultaneous Death and Intestate Succession

1. Janus v. Tarasewicz 

   1. Refresher facts

      1. Tylenol cyanide couple death

   2. Rule

      1. Order of survival must be based on sufficient evidence

2. Uniform Simultaneous Death Act

   1. If no sufficient evidence of survivorship, the beneficiary is deemed to have predeceased the donor

3. UPC 2-104

   1. Claimant must establish survivorship by 120 hours by clear and convincing evidence

General rule for adoption under 2008 UPC

Adoption severs relationship with genetic parents

Hall v. Vallandingham

1. adoption does not confer upon the adopted child more rights and privileges than those possessed by a natural child

2. Once a child is adopted, the rights of both the natural parents and relatives are terminated

3. “The Legislature giveth, and the Legislature taketh away.”

Jurisdictional splits for adoption and inheritance

1. Jx Splits

   1. In a few states, as in Hall, an adopted child inherits only from adoptive parents and their relatives. 

   2. In a few others, an adopted child inherits from both adoptive parents and prior parents and their relatives. 

   3. In a majority of states, an adopted child inherits from adoptive relatives and also from prior relatives only if the child is adopted by a stepparent. 

      1. The 1990 UPC falls into the third category (§ 2-114(b)):

         1. An adopted individual is the child of his [or her] adopting parent or parents and not of his [or her] natural parents, but adoption of a child by the spouse of either natural parent has no effect on (i) the relationship between the child and that natural parent or (ii) the right of the child or a descendant of the child to inherit from or through the other natural parent.

Minary case rule

Adoption of an adult for the purpose of bringing that person under the provisions of a preexisting testamentary instrument when he clearly was not intended to be so covered should not be permitted

Generally, inheritance rights of posthumous and nonmarital children

Each can take normally under will or intestate succession

Surrogacy and inheritance rights

1. Jx split

   1. Some states follow intent and surrogacy contract

   2. Other states, need to adopt the child

Advancements

1. Under Common Law, all lifetime gifts were presumed to be advancements

   1. Rebuttable

   2. Based in equity

2. Modern under CPC and UPC

   1. Many states have reversed the common law presumption of advancement. 

      1. In these states, a lifetime gift is presumed not to be an advancement unless it is shown to have been intended as such. 

   2. Some states and UPC § 2-109(a), below, go even further, requiring that the intention to make an advancement be declared in a writing signed by the parent or child. 

      1. The UPC also changes the common law rule if the child does not survive the parent. Under § 2-109(c), the advancement is not taken into account in determining the share of the child’s descendants.

Hotchpot

1. If a gift is treated as an advancement, it is accounted for in distributing the decedent’s estate by bringing it into hotchpot

2. Steps

   1. Add any advancements to the estate to create the hotchpot total.

   2. Divide the hotchpot equally among all children.

   3. Subtract the amount of advancement each child already received from their share.

   4. If a child’s advancement is equal to or greater than their full share, they take nothing more.

   5. If an advancement exceeds a child’s share, that child is excluded from hotchpot, and the remaining estate is divided equally among the other children.

Generally, bars to succession

1. Homicide

2. Disclaimer