Five Juicy questions where the heck does property go upon death of decedent?

Choosing a Method

1. Follow governing instrument – if governing instrument tells you want to do  follow instrument!

   1. Per Stirpes

      1. CA – § 246 – if governing instrument tells you to use Per Stirpes  use Per Stirpes

      2. UT – § 2-709 – “same”

   2. Equal Share Method

      1. CA – § 245 – if governing instrument tells you to use ESM  use ESM

      2. UT – does not mention this method in statute; so gov instrument would have to be really clear (like have to describe the ES Method in DETAIL, very carefully) or else they’ll follow the default method

   3. Per Capita at Each Generation

      1. CA – § 247 – if governing instrument tells you to use PCG  use PCG

      2. UT – § 2-709 – if governing instrument tells you to use PCG  use PCG

2. Default Method – intestacy OR silent instruments (e.g., language like “to the descendants of X”)

   1. CA Default = Equal Share Method

      1. § 240 – use ESM if someone dies intestate

      2. § 245 – use ESM is governing instrument silent regarding method

   2. UT Default = Per Capita at Each Generation

      1. § 2-103 and § 2-106 – use PCG if someone dies intestate

      2. § 2-708 – use PCG if governing instrument silent regarding method

Intestate Distribution Methods Tables

12. Intestate Distribution

    1. Overview

       1. Intestate Distribution=how D’s prop is distributed when D dies w/o estate plan OR plan>silent bout prop

       2. Needed when

          1. Person dies intestate (no estate plan at all)

          2. Will is contested and declared invalid

          3. Partial Intestacy cases

             1. RT not fully funded and there is no pour over will (poorly drafted)

             2. Will or RT lacks residuary clause- must look asset by asset to determine if each> disposed of

    2. Non-Probate Transfers – UT Adjustment to Intestate Distribution

       1. Non-Probate Transfer = property that is transferred at death outside of probate

       2. Applies ONLY when there have been non-probate transfers at death (e.g., retirement plan, insurance policy, revocable trust, joint tenancy) AND other property distributed under rules of intestacy  need to make an adjustment for non-probate transfer (§ 2-102(2), § 2-103(2))

          1. Analysis applies for surviving spouse AND any intestate heir receiving non-probate transfer

          2. NOTE: possible for D to die with a will lacking residuary clause  will transfers are not non-probate transfers  will transfers are not adjusted for in the same way as non-probate transfers

       3. Non-probate transfers treated as Advancements under § 2-109

       4. Calculating Adjustment = Hotchpot method

3. Advancements – applicable when a lifetime gift has been made to an otherwise intestate heir

   1. Does an adjustment need to be made to intestate shares for lifetime gifts?

      1. Common Law = YES  presumption = lifetime gift was an advancement requiring an adjustment UNLESS there was something in writing to the contrary

      2. UT (§ 2-109) & CA (§ 6409) = NO  presumption = lifetime gift was NOT an advancement and no adjustment needs to be made UNLESS there was something in writing to the contrary

   2. Adjustments: Hotchpot method if need to> adjust for advancements-here: lifetime; other HP: NPT (occurs at death)

4. Consanguinity Charts

   1. ONLY USE when statute tells you to do so

      1. CA – statutory references

         1. Intestacy: § 6402 tells you to use charts b/c it refers to degrees of consanguinity (e.g., § 6402(f))

         2. Disqualified Persons: § 21350, § 21351 also tell you to use these charts

   2. Using the Chart to Identify Next of Kin

      1. Identify all the next of kin living with the lowest degrees of consanguinity

         1. Number on chart is how many degrees of consanguinity that person is from decedent

      2. Then identify which of those are related to closest relation to D (closest ancestor/column) these= next of kin

Degrees of Consanguinity Chart

5. 
   
   Directory: sites -> www.phideltaphi.org -> resource -> collection -> EA88E61A-F827-4590-985B-EC1F412EAE4E
   sites -> Glossary for Chapter 1 Algorithm
   sites -> North Carolina Inclusion Initiative Mapping Where Children with ieps are Being Served Purpose
   sites -> Northern England’s set-jetting locations
   sites -> Physical custody of 1033 program property accountibility form statement of Physical Custody: By signing for the below 1033 property I am a Law Enforcement Officer of the aforementioned Law Enforcement Agency
   sites -> Nstructions for Acquiring Excess Equipment online, through the 1033 Program
   sites -> Memorandum of agreement
   EA88E61A-F827-4590-985B-EC1F412EAE4E -> Jurisdiction over the Parties or Their Property (jop)
   
   
   
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