Intestacy can happen through:
1) No will
2) Invalid will (but may have earlier valid wills)
3) Valid will didn’t dispose of all property so partially intestate and partially testate
Legislatively imposed will for those who won’t/can’t write their own
Two goals (always conflicting):
1) Simplify administration of properties
a. Social losses with legal battles
b. Determines if need a will by contrast
2) Apply to average taxpayers and execute their “intent”
W dies leaving H and S (of both H and W)
Analysis (strong policy to protect children above spouses):
2) Is it valid?
3) All property disposed of? If no, then:
4) Any separate property? (38B)
5) Any children? If yes, then:
a. Children of deceased and surviving spouse? If yes, then:
i. H gets 1/3 personal property (38B1)
ii. S gets 1/3 personal property (if child of both)
iii. H gets life estate in 1/3 real estate
iv. S gets remainder
b. If no kids then:
i. H gets all personal property (38B2)
ii. H gets ½ real estate
iii. ½ real estate goes through regular intestate succession
iv. H only gets 100% if no surviving parents, brothers, sisters, nieces, nephews, etc.
6) Community property?
7) Surviving spouse? Child? Whose child is it?
8) If S is child of H and W then:
a. H gets all community property (better than 38)
9) If S is not H child then:
a. H just gets his ½ of community property he already has
b. S gets other ½ of community property
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