Intestacy

Question 1

When does intestacy occur?

Answer 1

1. Intestate as to person (Total intestacy)
2. Intestate as to property (Partial intestacy)

Question 2

What is intestacy as to person? (Total i’cy)

Answer 2

Decedent dies without a valid will

Question 3

What is intestacy as to property? (Partial i’cy)

Answer 3

Decedent dies with a valid will but it doesn’t dispose of all D’s property

(Arises due to poor drafting)

(**Commonly used on bar to test BOTH testate and intestate issues in one)

Question 4

What is the basic idea of intestate succession?

(a.k.a. Descent and Distribution)

Answer 4

Any property remaining after the intestate’s debts and taxes are paid off passes to his heirs (i.e., “Distributees”)

Question 5

What is the difference between an heir and a beneficiary?

Answer 5

Heirs take under intestacy;

Beneficiaries take under will

Question 6

Who are descendants?

Answer 6

Your issue;

Your children and their children, ad infinitum

(i.e., your direct line)

Question 7

How do you determine applicable law w/r/t intestacy and marital rights?

Answer 7

Determining who owns marital property: Analysis governed by the law of the spouses’ domicile at the time the property was acquired

(i.e., If assets acquired in a community property state (i.e., 50/50 split) and spouses later move to NY, NY still treats that property as shared equally by both)

Question 8

How do you determine applicable law w/r/t intestacy and succession rights?

Answer 8

Q: Which state’s intestacy laws apply?

A:

IF personal property: Intestate’s domicile at time of death;

IF real property: The location of the real property

Question 9

What are the five scenarios for survivorship when decedent dies?

(i.e., what are the scenarios of who survives him?)

Answer 9

Decedent dies and is survived by:

1. Spouse and no children/descendants
2. Spouse and children/descendants
3. Children and no spouse
4. Children and descendants of a predeceased child
5. No spouse and no descendants

Question 10

What happens if D dies and is survived by his spouse and no children?

Answer 10

Surviving spouse takes all

Question 11

What happens if D dies and is survived by his spouse AND descendants?

Answer 11

Surviving spouse: Takes the first $50k AND 1/2 of the remaining balance

Descendants: Take the other 1/2 of the remaining balance AFTER S takes her $50k (Kids divide their half equally among themselves, regardless of whether they are full or half-siblings)

Question 12

What happens if D dies and is survived only by his children?

Answer 12

If the decedent is survived by his children (i.e., no surviving spouse and no decedents of a predeceased child), each suviving child receives an equal share

Question 13

What happens if D dies and is survived by his children AND descendants of a predeceased child?

Answer 13

(“Per capita at each generation” approach)

First, give one equal share to each of D’s children AND predeceased children who have surviving descendants.

Then, give to each child an equal share for that generation;

What’s left over gets divided equally by the descendants in the following generation whose parent predeceased them.

(EXAMPLE: G has three kids, AB&C. Each is entitled to 1/3 of G’s property. But B&C die before G dies. B had two kids, X&Y; C had one, Z. So A gets the 1/3 he’s owed, and the remaining 2/3 owed to B&C gets divided equally among the three grandkids, XY&Z. THUS: A gets 1/3, and XY&Z each get 2/9.)

Question 14

What happens if D dies and is not survived by a spouse or descendants?

Answer 14

D’s money goes to:

1. His parents or surviving parent; OR (if both dead)
2. His parents’ descendants (Intestate’s siblings, neices, nephews); OR (if none)
3. 1/2 to each set of grandparents (i.e., maternal and paternal) OR (if grandparents are dead) to their descendants (I’s aunts, uncles, cousins) who take per capita at each generation; OR (if one whole side of the family is dead)
4. All to the surviving grandparents’ side and their descendants; OR (if I only survived by first cousins once removed, i.e., grandparents great-grandkids)
5. 1/2 to maternal FCOR and 1/2 to paternal FCOR in equal shares; OR (if one side is dead)
6. All to I’s FCOR on the surviving side

Question 15

What happens if Decedent dies and is not survived by anyone, including grandchildren of grandparents?

Answer 15

D’s estate “escheats” to the state of NY.

Question 16

From whom may adopted children and their descendants inherit?

Answer 16

Adopted kids (and their descendants) inherit from their ADOPTIVE PARENTS

(i.e., do NOT inherit from BIRTH parents)

HOWEVER, a kid adopted by the new spouse of his biological parent (i.e., his new step-mother or step-father), DOES inherit from his birthparents PLUS from his new step-parent!

Question 17

What are the inheritance rights of PARENTS of an adopted child?

Answer 17

Biological parents do NOT inhereit from the adopted child;

Adoptive parents DO inherit from adopted child.

Question 18

What is the rule on non-marital children w/r/t inheritance?

Answer 18

Child always takes from the mother (unless adoption);

Child will take through the father as well, provided paternity is established via:

1. Marriage
2. Order of filiation;
3. Witnessed and acknowledged/notarized affidavit of paternity; OR
4. C&C evidence (e.g., DNA, open acknowledgement by the father, etc.)

Question 19

How are half-blooded heirs treated in NY?

Answer 19

No different than full-blood! Entitled to full share.

Question 20

When will a surviving spouse NOT be entitled to an intestate share? (Six instances)

(Hint: D/I/S/M/AL)

Answer 20

Surviving spouse not entitled to intestate share if DISMAL:

1. Divorce
2. Invalid divorce obtained by surviving spouse
3. Separation decree
4. Marriage is void
5. Abandonment or Lack of support

Question 21

What is an advancement?

Answer 21

Irrevocable gift intended by the donor as prepayment of an inheritance

Question 22

What is required to show an advancement?

Answer 22

A valid advancement must be:

1. In writing; AND
2. Signed by the donor/advancer OR donee/advancee

Question 23

What is the effect of an advancement?

Answer 23

If advancee still wants to share in the estate upon D’s death, he must account for the prior advancement;

i.e., Compute the shares of the inheritance as if the advancement had not been given out (and based on the value of the advancement at the time of death)

(EXAMPLE: Mike gives Marsha 10 acres on her 25th birthday as an advance on her inheritance. When Mike dies, he leaves $300k, divided among Marsha, Greg, and Jan. The 10 acres is now valued at $30k. So total value is $330k, divided evenly among the three kids. Each is entitled to $110k, but Marsha only gets $80k in new value because she already has the $30k in land.)

Question 24

What is a disclaimer?

Answer 24

An heir, beneficiarym surviving joint tenant, etc. cannot be forced to accept an inheritance or gift, and may instead DISCLAIM it.

Question 25

What are three reasons to disclaim an inheritance?

Answer 25

1. Burdensome (e.g., too much liability if gifted land contians a toxic waste plant)
2. Taxes (e.g., the inherited property would not be tax-free)
3. To avoid creditors

Question 26

What is required for a valid disclaimer? (4 things)

When must it be filed?

Answer 26

Disclaimer must be:

1. Written;
2. Signed by hte disclaimant; AND
3. Acknowledged by a notary.

There must also be (4) an attached affidavit stating that there was no consideration given in exchange for disclaiming the property.

(Disclaimer must be filed within 9 months of D’s death! i.e., the time could run before you even know you’re an heir!)

Question 27

How long must an heir survive after Decedent’s death in order to recover inheritance?

Answer 27

An heir must outlive the intestate by at least 120 hours to inherit!

(Otherwise, the heir is treated as if he had predeceased the intestate!)