15.2 Intestate Succession and Probate

The PCCE pairs intestacy with probate because both answer the same file question: who is entitled to what, and through which court process. Intestate succession is the statutory default that applies when the decedent left no valid will, when a will is denied probate, or when a valid will does not dispose of some probate property (partial intestacy). Heirs take by statute, not by the decedent's unwritten wishes. A signed note on a napkin that fails will formalities does not become an intestacy "almost-will."

This is federal-and-general teaching. Every state has its own intestacy statute. The Uniform Probate Code is a model. Many states adopt pieces of it. Many do not. Never recite one fraction as if it were U.S. law.

A common UPC-style pattern — labeled as such

Under a common UPC illustration — not a nationwide statute — the surviving spouse is the first taker of the intestate probate estate:

• If no descendant and no parent of the decedent survives, the spouse often takes the entire intestate estate.
• If the decedent's only descendants are also descendants of the surviving spouse, and that spouse has no other descendants, the modern UPC pattern likewise often gives the spouse the entire estate.
• If a parent survives and there is no descendant, the UPC pattern typically gives the spouse a fixed dollar amount plus three-fourths of the remainder, with the rest to the parent or parents.
• If the decedent leaves a descendant who is not also a descendant of the surviving spouse (a child of a prior relationship is the classic exam fact), the UPC pattern typically gives the spouse a smaller fixed amount plus one-half of the remainder, with the rest to descendants.
• If all of the decedent's descendants are also the spouse's, but the spouse has other descendants (a stepchild of the decedent), the UPC pattern uses another fixed amount plus one-half.

Those dollar amounts are inflation-adjustable in the UPC and different in adopting states. Do not memorize a national dollar figure. Remember the structure: spouse first; sometimes the whole estate; sometimes a preferred amount plus a fraction; descendants, then parents, then collaterals.

Older or non-UPC statutes still use blunt fractions — spouse takes one-third or one-half if there are children; dower and curtesy remnants survive in a few places. If the stem quotes a statute, apply that statute. If it does not, describe the UPC illustration as an illustration.

After the spouse: descendants, parents, collaterals, escheat

If there is no surviving spouse, or after the spouse's statutory share is carved out:

1. Descendants (children, and the issue of deceased children) take.
2. If no descendant, parents take (often equally if both survive).
3. If no parent, siblings and the issue of deceased siblings (collateral relatives through the parents) take.
4. More remote collaterals follow the statute — grandparents and their issue, then more distant kin.
5. If no heir qualifies, the property escheats to the state. Escheat is a last resort, not a spouse's automatic right.

Adoption generally makes the child an intestate heir of the adoptive parents. Stepchildren who were never adopted usually do not take in intestacy unless a statute says so. Half-blood relatives often take the same as whole-blood relatives under modern statutes; some older statutes cut the half-blood share. A person who feloniously and intentionally kills the decedent is typically barred (slayer rule). Survival statutes may require the heir to outlive the decedent by 120 hours (five days) under a common UPC rule — again, a model, not every state's number.

Per stirpes versus per capita

When a child predeceases the decedent leaving issue, the statute must say how that child's line takes.

• Per stirpes ("by the roots"): divide at the child generation. Each deceased child's stock takes that child's share, split among that child's issue. Example: decedent had three children, A (alive), B (dead leaving two children), and C (dead leaving one child). A takes one-third, B's two children split B's third (one-sixth each), and C's child takes C's third (one-third). The grandchildren do not take equally.
• Per capita in its strict sense means equal shares among a class of living takers at the same generation, without regard to stocks.
• Per capita at each generation (modern UPC representation): identify the nearest generation with a living taker; living members of that generation take equal shares; the shares of deceased members are pooled and divided equally among the next generation of takers. In the same family, A still takes one-third; the remaining two-thirds are pooled and split equally among the three grandchildren (two-ninths each).

If the stem says only "representation," read the quoted statute. The exam skill is the concept: stirpes preserves each child's stock; per-capita-at-each-generation equalizes cousins.

Probate property versus nonprobate transfers

Probate is the court-supervised process of collecting the decedent's probate assets, paying creditors, and passing title to heirs or devisees. Not everything the decedent "owned" is a probate asset.

Typical nonprobate transfers (they pass by title or contract, not by the will or the intestacy statute):

• Joint tenancy with right of survivorship (and, in community-property states, some survivorship community property).
• Payable-on-death (POD) and transfer-on-death (TOD) accounts and deeds where the jurisdiction authorizes them.
• Life insurance and retirement accounts with a living named beneficiary (the estate as beneficiary, or a lapsed designation, can pull the proceeds back into probate).
• Assets titled in a funded trust (section 15.3).

A solely owned bank account with no POD, a car titled only in the decedent's name, and real property held in severalty or as tenants in common (no survivorship) are classic probate assets. A will does not control a nonprobate designation unless the contract or statute says it does. Flag stale beneficiary forms.

Opening probate through closing

Someone with standing — usually the nominated executor or a close heir — petitions the probate court in the decedent's domicile (and, for land elsewhere, see ancillary probate below). The court issues:

• Letters testamentary to the executor when there is a will and the named person qualifies.
• Letters of administration to an administrator in intestacy.
• Letters of administration with the will annexed (CTA) when there is a will but the named executor cannot serve.

Personal representative is the modern umbrella term. Letters are the badge of authority banks and title companies ask for.

The representative then typically:

1. Gives notice to heirs, devisees, and creditors as the statute requires.
2. Files an inventory (and often an appraisal) of probate assets.
3. Collects assets, manages the estate, and handles creditor claims. Nonclaim statutes set a short window after notice and a longer outside stop date. States vary. Calendar the published deadline; do not invent a national number of months.
4. Pays debts, expenses, and taxes in statutory priority.
5. Files an accounting (formal or informal, depending on the proceeding).
6. Distributes remaining assets and obtains an order closing the estate and discharging the representative.

Informal or unsupervised probate exists in UPC-style systems. Formal probate is used when there is a will contest, unclear heirs, or a need for court supervision.

Small-estate shortcuts and ancillary probate

Most states offer small-estate procedures: a small-estate affidavit that lets a successor collect a bank account or vehicle without full letters, or summary administration for estates under a statutory ceiling. Dollar caps are state-specific. Do not invent a national small-estate limit. The exam wants the concept: below the local ceiling, full probate may be unnecessary.

Ancillary probate is a second proceeding in a state where the decedent owned real property but was not domiciled. The domiciliary personal representative usually files authenticated domiciliary letters and the will (if any) in the situs state so local title can pass. Personal property generally follows the law of the domicile; real property follows the law of the situs.

Worked path. Decedent dies a domiciliary of State A with a valid will leaving "my probate estate to my spouse," a house in joint tenancy with the spouse, a life-insurance policy payable to an adult child, and a vacant lot in State B titled in the decedent's name alone. The house and the insurance are nonprobate. The State A probate estate is whatever solely owned assets remain there. The lot needs ancillary proceedings in State B. If the will is denied probate and there is no other instrument, intestacy governs the lot and the solely owned State A assets — using each state's statute for the land and the domicile statute for personal property.

Trap. "The will controls the life-insurance beneficiary" is usually wrong. "Every state gives the spouse exactly half" is wrong. "Escheat means the spouse takes" is wrong. "Letters testamentary issue in intestacy" is the wrong label — those are letters of administration.

Term-swap. Heirs take in intestacy. Devisees take under a will. Letters testamentary pair with an executor and a will. Nonprobate is title or contract, not a court decree. Ancillary is the out-of-state land case. Escheat is the state as last taker.