10.3 Intestacy & Advance Directives

When a person dies without a valid will, he dies intestate, and state statutes of descent and distribution decide who inherits. Those statutory takers are heirs; by contrast, takers under a will are devisees (real property) or legatees/beneficiaries (personal property). Only probate assets pass by intestacy — life insurance, retirement accounts with named beneficiaries, joint tenancy property, and trust assets bypass the statute entirely.

Intestate Succession Patterns

The Uniform Probate Code (UPC) pattern, mirrored broadly across the states:

• Surviving spouse, no descendants or parents — spouse takes everything.
• Surviving spouse, all descendants are descendants of both spouses — spouse takes everything (modern UPC). Older and non-UPC statutes instead give the spouse one-third or one-half with the children sharing the rest.
• Surviving spouse, and the decedent has descendants from another relationship — spouse takes a fixed dollar amount plus one-half of the balance; the decedent's descendants take the rest.
• No spouse — descendants; then parents; then siblings and their descendants; then grandparents and their lines. Only when no blood relative can be found does the property escheat to the state — genuinely rare.

Doctrines the exam loves: adopted children inherit from and through adoptive parents and (in most states) not from natural parents; posthumous children conceived before and born after death inherit; half-bloods take equal shares under the UPC; an advancement (a lifetime gift intended as an early inheritance) may be charged against the heir's share; and slayer statutes bar a killer from inheriting from the victim. The UPC also requires an heir to survive the decedent by 120 hours to take.

Per Stirpes vs. Per Capita

Decedent dies with $300,000 and three children: A (alive), B (predeceased, children B1 and B2), C (predeceased, child C1).

Exam trap: under per stirpes the grandchildren of different deceased children can take unequal amounts (B1 and B2 get $50,000 each; C1 gets $100,000). Under per capita at each generation, same-generation takers always take equally.

Durable Power of Attorney

A power of attorney (POA) is a written authorization by a principal appointing an agent (attorney-in-fact) to act on the principal's behalf. At common law an agent's authority ended when the principal lost capacity — exactly when the document was needed most. A durable power of attorney solves this with express language such as 'this power shall not be affected by my subsequent disability or incapacity.' The Uniform Power of Attorney Act (UPOAA, 2006) flips the default: powers are durable unless they say otherwise. A springing power activates only upon a defined event (usually certified incapacity), which can cause proof delays at banks.

Hard rule: every power of attorney terminates at the principal's death. The agent cannot use the POA to pay funeral bills or access accounts after death — authority shifts to the personal representative. Agents are fiduciaries: they must act loyally, within the granted authority, and keep records. Some powers (making gifts, changing beneficiary designations) must be expressly granted.

Healthcare Directives

• Living will — a declaration of wishes about life-sustaining treatment if the patient is terminally ill or permanently unconscious; it speaks for the patient but names no decision-maker.
• Healthcare power of attorney / healthcare proxy — appoints an agent to make medical decisions whenever the patient cannot.
• Advance directive — the umbrella document combining both, and the standard drafting package.
• HIPAA authorization — needed so providers may share information with the agent and family (Health Insurance Portability and Accountability Act).
• Do-Not-Resuscitate (DNR) orders and POLST forms (Physician Orders for Life-Sustaining Treatment) — medical orders, signed by a physician, that travel with the patient.

The federal Patient Self-Determination Act of 1990 requires hospitals and other Medicare/Medicaid providers to inform adult patients of their right to execute advance directives.

Guardianship

When incapacity strikes with no planning documents in place, a court appoints a guardian. Many states split the role: a guardian of the person (medical and residential decisions) and a guardian of the estate — called a conservator in many jurisdictions — for finances. The standard is incapacity plus the ward's best interests, and modern statutes demand the least restrictive alternative, favoring limited guardianships. Guardians file inventories and annual accountings with the court. For minors, parents may nominate a testamentary guardian in their wills; the nomination is honored absent good cause, but the court still makes the appointment. Do not confuse a guardian with a guardian ad litem, who is appointed only to represent a minor's or incapacitated person's interests in a specific lawsuit.

Paralegal scenario: A client's mother had a stroke and never signed a POA. The client asks you to 'just prepare one' for the mother to sign now. An incapacitated principal cannot execute a valid POA — the remaining route is a guardianship petition, which is attorney work you tee up, not sign off on.