Intestate Shares

Some of the material required for Wills has to do with situations in which the decedent left a will at the time of death. But also required for the exam is to know the procedure when the decedent had no will at the time of death or when the will is denied probate. This procedure, known as intestate distribution, can become complex.

Generally, if there is no will of which to dispose all of the property, the surviving will take a large percentage (1/3rd or 1/2 most commonly). Under the Uniform Probate Code, the surviving spouse takes the entire estate provided that any descendants of the surviving spouse are also descendants of the decedent. And if there are no descendants, the surviving spouse generally gets the entire estate as well.

After the spouse receives a share, the children get a share, but the share will depend on the method of distribution. In some states the children will take their share per capita with representation which means that the property is divided into equal shares at the first generational level at which there are living takers. Each living person at that level takes a share and the share of each deceased person at that level passes to that person's issue by right of representation.

So, assume that D dies, leaving 5 children, V, W, X, Y, and Z.  At the time that D died, V and W were alive, but X, Y, and Z had already died.  X had 2 children, C1, and C2, Y had one child, C3, and Z had 3 children, C4, C5, and C6. Had all 5 of V, W, X, Y, and Z been alive, this would be simple: V, W, X, Y, and Z would receive 1/5th of the estate. But here only V and W were alive so only they will each get their 1/5 share.

As to X, Y, and Z, each of their children will get what each of X, Y, and Z would have gotten had they been alive. X would have gotten 1/5, so C1 and C2 will get (1/5)/(2) =1/10. Y would have gotten 1/5 so C3 will get 1/5. And Z would have gotten 1/5 so C4, C5, and C6 will each get (1/5)/(3)= 1/15.

You can always check to make sure the math is correct since all shares should equal 1.

More importantly for purposes of the UBE (since this is the method used in the Uniform Probate Code) is a method of distribution called per capita at each generational level. Once again, the initial division of shares is made at the first generational level at which there are living takers. But here, the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level.

Using the same characters from above, assume again that V and W are alive at the time of D's death, but that X, Y, and Z have already died.  V and W will once again get their 1/5 share.  But this time, the 3 shares of X, Y, and Z (1/5th each) will be combined for a total of 3/5. That 3/5 share will then be distributed equally among C1, C2, C3, C4, and C5.  In other words, C1, C2, C3, C4, and C5 will all get an equal share of 3/5th or (3/5)/(5)=3/25.

Once again, a quick check will determine if all shares when combined equal 1.