Intestacy Flashcards
(33 cards)
Intestate
Decedent has dies without a valid will disposing of his property at death
▪ Made no provisions
▪ Made a will that was invalid
Partial Intestacy
Decedent’s will does not dispose of all the property owned by decedent
▪ Any property not disposed of in the will passes through intestacy
Heirs
Those people defined by statute to take or designated to take through the will
▪ Heirs are determined statutorily at death
▪ Living people do not have heirs
Spouse’s Share
o §2-102 - the whole amount maybe
Share to Heirs Other than Surviving Spouse
o §2-103
No Taker
o §2-105 No Taker
▪ If there is no taker under the provisions of this article the intestate estate passes to the state
Per Capita Distribution (NY)
▪ (1) Divide the estate starting at the generation nearest the decedent where someone is living
▪ (2) The remaining that was not distributed at that generation falls to the next generation as one lump sum and is divided equally among the next generation
• If children’s parent is still alive They are not part of the division on this second level (no representation)
▪ Similar to Modern, but treats the dead and their line differently. In the generation with living, those who are deceased, their shares are put in a pot and divided equally among all representatives.
Simultaneous Death
o An heir, devisee, or life insurance beneficiary must establish survivorship by 120 hours by clear and convincing evidence
o If they cannot the heir, devisee, or life insurance beneficiary is deemed to have predeceased the decedent
Rules Regarding Surviving Spouse
o One could only be a surviving spouse if they were married
o The definition of marriage has changed recently spouse can be of the same sex as the deceased spouse
o What happens if you move to a different jurisdiction where this is not recognized
▪ The law of the state in which they were domiciled at the time of death controls
• Would have to leave a will if they wanted their “spouse” to inherit
Adopted Children
o General Rule: Once adopted the child is treated the same as a biological child of the adoptive parents
▪ Generally inherit from the adoptive parents
The Estates and Trusts Code states on Adoption
- Once the child is adopted, the rights of both the natural parents and relatives are terminated
- Because an adopted child has no right to inherit from the estate of a natural parent who dies intestate, the child may not inherit through the natural parent by way of representation
Adult Adoption
▪ This practice is an act of subterfuge which in effect thwarts the intent of the ancestor whose property is being distributed and cheats the rightful heirs
o If it brings the person within a preexisting testamentary instrument to which they were clearly not intended to be a part, this is not permitted
Legal Adoption
o Must Prove:
▪ Some showing of an agreement between the natural and adoptive parents, performance by the natural parents of the child in giving up custody, performance by the child by living in the home of the adoptive parents, partial performance by the foster parents in taking the child into the home and treating it as their child, and…the intestacy of the foster parent
Who may legally contract for the adoption of a child?
o Biological parents
o Legal guardian
▪ Here, the Aunt was not a legal guardian, rather she was a legal custodian
▪ Legal custodians do not have the right to consent to the adoption of a child
New York recognizes Equitable Adoption
• Equitable Adoption – focuses on the relationship
o Under the equitable adoption doctrine, and oral agreement to adopt A between H and W and A’s genetic parents is inferred if H and W take baby A into their home and raise A as their child
Posthumous Children - Are posthumously conceived children beneficiaries for Social Security purposes?
Look at Grantor’s Intent
Three major factors to consider
(1) Best interest of the children (2) The State’s interest in the orderly administration of estates (3) The reproductive rights of the genetic parent
Posthumous Children - Best Interest of Child
- Want the children to be taken care of
- We may assume that the legislature intended that such children be entitled to the same rights and protections of the law as children conceived before death
Posthumous Children - The State’s interest in the orderly administration of estates
• It will reduce the intestate share available to children born prior to the decedent’s death
• It will delay the finality of distribution
• Assuring the Administrative Goals:
o (1) Require certainty of filiation
o Posthumously conceived children must obtain a judgment of paternity as a necessary prerequisite to enjoying inheritance rights in the estate of the deceased genetic father
o (2) Establish limitation period
Posthumous Children - The reproductive rights of the genetic parent
• The decedent intestate parent must affirmatively consent to
o (1) posthumous reproduction; and
o (2) to support any resulting child
Posthumous Children - NY
Child conceived after death of the father = not an heir
Assisted Reproduction - Surrogacy
o In the case of surrogacy – contract law controls
o Rights are determined by the surrogacy contract
▪ Look to the surrogacy contract
▪ No need to go through adoption proceedings in these situations
Non-Marital Children - NY
▪ Inherit from the mother and maternal kindred
▪ Inherit from the father and paternal kindred if:
(1) There is a judicial determination of paternity; or
(2) The father of the child has signed a petition acknowledging paternity; or
(3) It is established by clear and convincing evidence
o Do they hold them out as their own
o Do they support them
Advancements
a lifetime gift by the decedent to a descendant which will be counted against their intestate share
Determining if there is an Advancement
Must have:
• (1) a contemporaneous writing
• (2) that evidences an intent to make a lifetime gift an advancement
▪ When there is not writing, must speculate as to the intent of the donor
▪ Generally, parent paying for undergraduate tuition ≠ advancement
▪ Generally, parent paying for professional school tuition = advancement
