Intestacy Terminology
Descent
succession to real property
Texas Analysis
1. Was intestate married at the time of death?
a. if no, follow individual
b. if yes, follow community and separate property schemes
Disclaimer Requirements
1. In writing
2. Described property that is being disclaimed
3. signed by disclaimant
4. delivered to
a. personal rep or
b. filed in county (where decedent was domiciled or owned real property)
Who are your heirs?
The people who receive property from an intestate decedent
- A living person cannot have heirs
Assume that married clients have both separate and community property. Also assume that each client owns both real and personal property.
1. Client is married to Husband. Neither Client nor Husband have children. Client’s Mother, Father, and Brother living.
Community Property: S.S inherits all
Separate Real: S.S = 1/2 Mother = 1/4 Father = 1/4
Separate Personal: ??
Distribution
succession to personal property
Three types of Property Distribution Schemes
1. Per Stirpes
2. Per Capita w/ Rep
3. Per Capita at Generation
Basic Analysis of ART Children
1. Is the resulting individual a "child" of the intestate parent?
2. If yes, does the child qualify as an heir?
3. When does conception occur?
Half-Blood Heir
collateral relatives of the intestate who are only one parent in common
Assume that married clients have both separate and community property. Also assume that each client owns both real and personal property.
2. Client is married to Husband and they have two children, Arthur and Brenda. Neither Client nor Husband have children by other partners.
Community Property: S.S inherits all
Separate Real: S.S = LE in 1/3 A&B = 1/3 w/ Remainder
Separate Personal: S.S = 1/3 A&B = 1/3
Collateral Relatives
blood relatives not in a direct line (passes through common ancestors to get to them)
Community Property with Non-Marital Descendant
Descendant's inherit all
S.S keeps their original 1/2 of the community property
Two types of writing for advancements?
1. Contemporaneous Writing of Advancer
2. Written Acknowledgment by Advancee
When would someone be an unworthy heir?
1. Forfeiture
2. Civil Death
3. Corruption of Blood
4. Suicide
5. Heir Killing Intestate
6. Bad Parent
7. Bad Spouse
Assume that married clients have both separate and community property. Also assume that each client owns both real and personal property.
3. Client is married to Husband and they have two children, Arthur and Brenda. Client has a son, Paul, by a prior partner. Husband does not have a child by another partner.
Community Property: Husband keeps their original 1/2... A, B, P get 1/6
Separate Real: H = LE in 1/3 A,B,P = 2/9 w/ R
Separate Personal: H = 1/3 A,B,P = 2/9
Affinity
Related by marriage (spouse and in-laws)
Separate Real Property w/ No Surviving Descendants
SS = 1/2
Parents/Siblings = 1/2
Presumption of Gestation
Presumed to be in gestation if born within 300 days of intestates death
Fillius Nullius
a child born outside of a valid marriage was considered to have no parents
Assume that married clients have both separate and community property. Also assume that each client owns both real and personal property.
4. Client is married to Husband and they have four children, Arthur, Brenda, Charles, and Dawn. Neither Client nor Husband have children by other partners. Arthur has already died survived by one child, Randy. Brenda has already died survived by two children, Sam and Teresa.
Community Property = H inherits it all
Separate Real = H = LE in 1/3, R,C,D = 2/12 w/ R, S,T = 1/12 w/R
Separate Personal = H = 1/3, R,C,D = 2/12, S,T = 1/12
Consanguinity
related by blood
1. Descendants
2. Parents
3. Parent & Sibiling
4. All Sibilings
5. Grandparents
What is the equitable conversion theory of after the K is signed for real property and before closing
Real property is treated as personal property
Personal property is treated as real property
How can a child show paternity to inherit?
1. Family Code Presumption
2. Court Decree of Paternity
3. Father adopts
4. Father executed paternity statement
5. Post death determination of paternity by clear and convincing evidence
6. ART statutes
5. Client is unmarried and childless. Mother is still alive but Father has already died. Mother and Father had two other children, Sister One and Sister Two. Father also had a child, Harold, from a prior relationship.
M = 1/2
S1 & S2 = 1/5
H = 1/10