Mo Bar Exam Wills

Front 1

When may property pass by intestate succession?

Back 1

1) A decedent dies without having made a will
2) A decedent's will is denied probate
3) A decedent's will does not dispose of all of his property, either because a gift has failed or because the will contains no residuary clause or
4) A decedent's will specifies that his property should pass according to the laws of intestate succession

Front 2

Intestate share of surviving spouse when descendants also survive

Back 2

In most states the surviving spouse takes one third or one half of the estate. In states that have adopted the Uniform Probate Code the surviving spouse takes the entire estate if the decedent is survived by descendants who are all descendants of the surviving spouse and the surviving spouse has no other surviving descendants.

Front 3

Intestate share of surviving spouse when no descendants survive

Back 3

In most states the surviving spouse takes the entire estate. In states that have adopted the Uniform Probate Code, the spouse takes the entire estate only if the decedent is not survived by descendants or parents.

Front 4

Intestate share of children and other descendants - Majority Rule

Back 4

The portion of the estate that does not pass to the surviving spouse or the entire estate if there is no surviving spouse passes to the decedent's children and descendants of deceased children - The majority rule is Per Capita with Representation, ie a the property is divided into equal shares at the first generational level at which there are living takers. Each living taker at that level takes a share, and the share of each deceased person at that level passes to his issue by right of representation.

Front 5

Intestate share of children and other descendants - Modern trend

Back 5

Modern trend is per capita at Each generational level - a growing number of states and the Uniform Probate Code take this viewpoint - the initial division of shares is made at the first generational level at which there are living takers, but the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level. Persons in the same degree of kinship to the decedent always take equal shares.

Front 6

Intestate shares of other heirs when decedent is not survived by a spouse or descendants.

Back 6

In this situation the estate is distributed to other heirs in this order, proceeding down the list until a taker is found: 1) Parents or surviving parent
2) Brothers and sisters and their issue
3) One-half to paternal grandparents and one-half to maternal grandparents and their descendants (both halves to one side if there are no kin on the other side)
4) One-half to nearest kin on maternal side and one-half to nearest kin on paternal side (all to one side if there are no kin on the other side)

If there is still not a taker in any of these categories the estate escheats to the state.

Front 7

What is the intestate share of an adopted child?

Back 7

adopted children are treated the same as the natural children of the adopting parents. There is no inheritance in either direction between adopted children and their natural parents, except where one of the natural parents marries an adopting parent or the child is adopted by a close relative

Front 8

What is the intestate share of Stepchildren and Foster children?

Back 8

Generally stepchildren and foster children have no inheritance rights unless adopted by the stepparent or foster parent. The doctrine of adoption by estoppel, however, permits a child to inherit from or through a stepparent or foster parent when legal custody of a child is gained under an unfullfilled agreement to adopt him.

Front 9

What is the intestate share of a posthumous child?

Back 9

Generally one cannot claim as an heir of another unless he was alive at that person's death, but an exception is made for the posthumous issue of the decedent, ie a child in gestation at the decedent's death.

Front 10

What is the intestate share of Nonmarital children?

Back 10

A nonmarital child always inherits from the mother. The child will inherit from his father if: 1) the father married the mother after the child's birth 2) the man was adjudicated to be the father in a paternity suit or 3) after his death and during probate proceedings, the man is proved by clear and convincing evidence to be the father.

Front 11

No distinction between half-bloods and whole bloods.

Back 11

Half bloods are brothers and sisters who have only one common parent. The Uniform Probate Code and most states make no distinction between half-bloods and whole bloods - they inherit equally.

Front 12

Problems common to both intestacy and wills - simultaneous death

Back 12

a person cannot take as an heir or will beneficiary unless he survives the decedent. Because it is sometimes difficult to determine whether one person survived another, ie both persons are killed in a car accident most states have adopted a version of the Uniform Simultaneous death act which provides that when disposition of property(by will, intestacy, joint tenancy,etc) depends on the order of death and the order cannot be established, the property of each decedent is disposed of as if he had survived the other - the USDA applies unless there are specific contrary provisions in the will or other instrument. The USDA applies only if there is no sufficient evidence of survival. If there is evidence that an heir or beneficiary survived the decedent by even minutes the USDA does not apply - to avoid this result many states require a person to survive the decedent by 120 hours in order to take any distribution of the decedent's property - this is the position of the UPC.

Front 13

Disclaimers - what are they?

Back 13

A person can disclaim an interest, which results in the interest passing as though the disclaiming party predeceased the decedent. To be effective for federal tax purposes the disclaimer must be in writing, irrevocable and filed within nine months of the decedent's death.

Front 14

Special rules for disclaimers

Back 14

a disclaimer may be made by a guardian on behalf of an infant or incompetent if the court finds that it is in the best interest of those interested in the estate of the beneficiary and is not detrimental to the best interests of the beneficiary.

An interest cannot be disclaimed if the heir or beneficiary has accepted the property or any of its benefits.

A disclaimer can be used to defeat creditor's claims - the disclaimant has no interest that can be reached by creditors - however, a disclaimer cannot be used to defeat a federal tax lien.

Because the interest passes as though the disclaimant predeceased the decedent, the disclaimer of a life estate accelerates the remainder.

Front 15

Decedent's death caused by heir or beneficiary - rule

Back 15

Most courts hold that one who feloniously and intentionally brings about the death of a decedent forfeits any interest in the decedent's estate - the property passes as though the killer predeceased the victim. This rule operates to prevent the killer from taking any interest or benefit, ie insurance proceeds, family allowance, the right of survivorship in any property so held with the decedent, although killer does not forfeit his share of the property held by right of survivorship.

A conviction of murder in any degree is conclusive for purposes of this rule, but in the absence of such a conviction the court must find that the killing was unlawful by a preponderance of the evidence before applying the rule.