Get Started. It's Free
or sign up with your email address
Rocket clouds
Intestacy by Mind Map: Intestacy

1. Basics of Intestacy Laws

1.1. Defining Terms

1.1.1. Testator - A person who writes a will

1.1.2. Heir - A person who takes property under an intestacy distribution scheme

1.1.3. Beneficiary - A person who takes property under a will. Also called a devisee or legatee.

1.1.4. Bequeth or devise - At common law a distinction was drawn between a transfer of real property (a devise) and transfer of personal property (a bequest). This distinction is no longer recognized.

1.1.5. Ancestor - Those from whom the inestate descended, including parents and grandparents, etc.

1.1.6. Issue - The progeny of the intestate. Usually used synonymously with descendants

1.1.7. Residuary Estate - The property that has not been specifically devised and remains after everything else has been given away. "The rest, residue and remainder of the estate"

1.2. The Uniform Probate Code

1.3. Situations When Intestacy Applies

1.3.1. When decedent dies without a will or without a valid will

1.3.2. When decedent dies with a valid will that does not make a complete disposition of decedent's entire estate - a partial intestacy

1.3.3. An heir successfully contests a will under lack of capacity or undue influence and will is denied probate

1.3.4. The decedent has a pretermitted child or omitted spouse

1.4. Survivorship

1.4.1. Uniform Simultaneous Death Act

1.4.2. N.C. Gen. Stat. Chapter 28A, Article 24: 120-Hour Survivorship Requirement; Revised Simultaneous Death Act

1.4.2.1. N.C. Gen. Stat. § 28A-24-2 Requirement of Survival by 120 Hours

1.4.3. Effect of Failing to Survive

2. Allocating Spousal Shares Under North Carolina Law and the UPC

2.1. When Decedent is survived by (1) A surviving spouse, (2) No descendants, and (3) No parents

2.1.1. Under 1969 UPC - Surviving spouse takes all

2.1.2. Under 1990 UPC - Surviving spouse takes all

2.1.3. Under 2008 UPC - Surviving spouse takes all

2.1.4. Under N..C. Gen. .Stat. § 29-14 - Surviving spouse takes all

2.2. When Decedent is survived by (1) A surviving spouse, (2) No descendants, and (3) A surviving parent

2.2.1. Under 1969 UPC - Surviving spouse takes first $50,000 plus one half of the balance

2.2.2. Under 1990 UPC - Surviving spouse takes first $300,000 and 3/4 of balance. Parents receive

2.2.3. Under N..C. Gen. .Stat. § 29-14

2.2.3.1. Small Estates - All of the personal property goes toward surviving spouse along with a one-half undivided interest in any real property

2.2.3.2. Large Estates - Spouse receives $100,000 dollars plus one half of the balance of the personal property and a one-half undivided interest in any real property

2.3. When Decedent is survived by (1) A surviving spouse, and (2) A descendent or descendants all of whom are descendants of surviving spouse

2.3.1. Under 1969 UPC - Spouse takes first $50,000 plus one-half of the balance regardless of lineage of descendants

2.3.2. Under Modern UPC (1990 or 2008?) - Surviving spouse takes all

2.4. When Decedent is surived by (1) A surviving spouse and (2) A descendent or descendants who are not descendants of both the surviving spouse and deceased spouse (Children from a prior marriage of the surviving spouse)

2.4.1. Under 1969 UPC - Spouse takes One half of the balance

2.4.2. Children from surviving spouse's prior marriage

2.4.2.1. Under 1990 UPC - Spouse takes fIrst $150,000 plus one half of the remaining balance

2.4.2.2. Under 2008 UPC - Spouse takes first $225,000 plus one half of remaining balance

2.4.3. Children from deceased spouse's prior marriage

2.4.3.1. Under 1990 UPC - Spouse takes first $100,000 plus one half of the balance

2.4.3.2. Under 2008 UPC - Spouse takes first $150,000 plus one half of the balance

2.5. When Decedent is survived by (1) A surviving spouse, and (2) Only one child who is qualified to take or any lineal descendent of a deceased child

2.5.1. Small estates - Spouse takes a one-half undivided interest in the real property and all of the personal property

2.5.2. Large estates - Spouse takes a one-half undivided interest in the real property and $60,000 of personal property plus one half of the balance of the personal property

2.6. When Decedent is survived by (1) A surviving spouse, and (2) More than one child who is qualified to take

2.6.1. Small estates - Spouse takes a one-third undivided interest in real property and all of the personal property up to $60,000 in value

2.6.2. Large estates - Spouse takes a one-third undivided interest in real property and $60,000 in value of personal property plus one third of the balance of the personal property

3. Advancements and Calculating Hotchpot Estates

3.1. N.C. Gen. Stat. Chapter 29, Article 7: Advancements

3.1.1. N.C. Gen. Stat. § 29-24: Presumption of Gift

3.2. Steps in Calculating a Hotchpot Estate

3.2.1. Determine the value of the intestate's net distributable estate

3.2.2. Determine the value of the advancements

3.2.3. Add the value of advancements to the net distributable estate and then divide this hotchpot estate among descendants

3.2.3.1. If an advancement exceeds the total amount allocated to distributee under the applicable intestacy law, then that distributee's share is disregarded and the calculation begins again

4. Who Can Take

4.1. Table of Consanguinity

4.2. N.C. Gen. Stat. §§ 29-1 thru 29.12 General Provisions of Intestate Succession

4.2.1. N.C. Gen. Stat. § 29-6 Lineal Succession Unlimited

4.2.2. N.C. Gen. Stat. § 29-7 Collateral Succession Limited

4.3. Adopted Children

4.3.1. Formal Adoption

4.3.2. Elements Required for Equitable Adoption

4.3.2.1. Express or implied agreement by decedent to undertake a formal adoption

4.3.2.2. Reliance by child on such an agreement

4.3.2.3. Performance by natural parent in giving up custody of child

4.3.2.4. Partial performance by foster parents by treating child as own

4.3.2.5. Total intestacy of foster parents

5. Allocation Schemes

5.1. Strict Per Stirpes

5.2. Per Capita With Representation

5.3. Per Capita at Each Generation (North Carolina Default Scheme)

5.3.1. N.C. Gen. Stat. § 29-16 Per Capita At Each Generation as Default Intestate Distribution Scheme

5.3.2. Rawls v. Rideout, 328 S.E.2d 783 (1985) (North Carolina's defualt intestacy allocation scheme is per capita at each generation).

6. Disclaimers

6.1. To be a valid disclaimer

6.1.1. Most be in writing, signed, and in most states notarized

6.1.2. Must be filed within a certain time of decedent's death, with such time usually defined by statute

6.1.2.1. Under the UPC the disclaimer must be filed within a "reasonable time." For tax purposes, however, the disclaimer must be made within 9 months of transfer of property becoming effective, usually upon death of intestate or testator.

6.1.2.2. Under North Carolina law (N.C. Gen. Stat. § 31B-2) the time period for a disclaimer is 9 months or within the time period required under the applicable federal statute for purposes of federal estate and gift tax purposes)

6.1.3. Must be made before an heir accepts the interest or its benefits

6.2. Effect of Disclaimer

6.2.1. Disclaimant cannot exercise dominion by controlling who gets the property interest after renunciation has occurred

6.2.2. Property is distributed to living issue of disclaimant as if disclaimant predeceased decedent and under a strict per stirpes allocation scheme in order to avoid the pooling problem.