Intestacy Rules Flashcards
What is the body of law governing NY wills?
Estates Powers and Trust Law (EPTL)
What is a residuary?
The balance of the decedent’s estate after all claims, taxes and particular bequests have been distributed
Residuary = The rest of the estate
When do the the rules of intestacy apply under the EPTL?
They apply when…
1) Decedent left no will OR did not properly execute it;
2) The Will does not make a COMPLETE distribution of the estate (because of poor drafting), resulting in partial intestacy; OR
3) A distributee successfully challenges the Will, and the Will is DENIED probate
What is the order of priority for appointment as adminsitrator (in intestacy)?
Administrator will distribute property in this order…
- Surviving SPOUSE;
- CHILDREN;
- GRANDCHILDREN;
- FATHER or MOTHER;
- BROTHER or SISTER;
- Any other DISTRIBUTEES
What is the rule when a decedent is survived by a spouse and NO children?
The surviving spouse takes the WHOLE estate
What is the rule when the decedent is ONLY survived by his children?
If NO child has predeceased the decedent, the estate passes to the children in EQUAL shares
What is the rule when a decedent is survived by a spouse AND children (his issue)?
1) The surviving spouse: takes $50k + 1/2 of the RESIDUARY
2) The issue (from ALL marriages, if applicable): takes the left over residuary divided EQUALLY, UNLESS the estate is worth less than $50k. Issue would then take NOTHING (i.e. everything goes to surviving spouse)
What is the rule when the decedent is survived by his children AND issue of PREDECEASED children?
The estate passes to
i) the LIVING children;AND
(ii) the issue of the deceased children per capita per generation (by representation
How does property pass by representation (or per capita at each generation)?
STEP 1: The property is divided into AS MANY SHARES as there are issue (dead or alive) at the first generation level WHERE THERE ARE survivors
STEP 2: All LIVING issue at the FIRST generational level take one share EACH
STEP 3: The shares of the DECEASED issue (only) at the FIRST generational level are COMBINED and divided EQUALLY among THEIR issue at the NEXT generational level
NOTE: the issue of the children who TOOK a share DO NOT get a distribution at this 2nd level
NOTE: SPOUSES of issue do not get ANYTHING (not an intestate distributee)
What is the rule if the decedent is survived by NEITHER a spouse NOR an issue?
If no spouse or issue, the distribution is….
- *1) to the SURVIVING PARENT(S)
- *2) to the ISSUE of the PARENTS (i.e. siblings), who take per capita at each generation
3) 1/2 to MATERNAL GRANDPARENT(S) (OR their issue, who take per capita at each generation) PLUS1/2 to PATERNAL GRANDPARENTS (OR their issue, who take per capita at each generation)
** NOTE: if one side (maternal or paternal) is wiped out, 100% goes to OTHER SIDE (OR their issue, who take per capita at each generation)
** NOTE: if only GRANDCHILDREN left on either side, then they take in EQUAL shares
4) If the nearest kin are GREAT GREAT GRANDCHILDREN OF THE GRANDPARENTS (i.e. no great grandchildren), the estate reverts back to NY State
How does property pass by per stirpes distribution?
It’s where the issue of a PREDECEASED child takes the share that the predeceased child would have taken
In NY, the DEFAULT rule is “per capita” distribution for predeceased children for BOTH intestacy AND will
NOTE: a will can OVERRIDE and change the default distribution (per capita) to per stirpes
FUN FACT: Per capita distribution results in the SAME distribution as per stirpes if there is ONLY ONE person in the first generation that PREDECEASED the decedant
What are the inheritance rights of ADOPTED children?
When adopted by…
NEW family→adopted child AND his issue have FULL inheritance rights from the ADOPTING family (AND vice versa)
** NOTE: The adopted child has NO inheritance rights from the BIRTH PARENTS or other members of the BIRTH FAMILY
- SPOUSE of birth parent → the child AND that child’s issue can inhereit from
(i) the adopting PARENT;
(ii) the BIRTH parent; AND
(iii) the DECEASED parent’s family
- SPOUSE of birth parent → the child AND that child’s issue can inhereit from
** NOTE: if child dies, the non-custodial parent’s family CANNOT inherit (i.e. ONE WAY STREET)
RELATIVE→ the child inherits under the BIRTH relationship ONLY (i.e. that line is not extinguished), UNLESS the decedent was the adopting parent, then the child inherits under the ADOPTIVE relationship
What are the inheritance rights of non-marital children?
Depends on whether decedent is MOTHER or FATHER…
From MOTHER: a nonmarital child has FULL inheritance rights from his MOTHER and his MOTHER’S family
From FATHER: inheritance ONLY IF paternity is established by… DURING “FATHER’S” LIFE
1) The father marries the MOTHER after birth; OR 2) An order of filiation in a paternity suit is entered adjudicating the the man to be the child's father; OR 3) The father files a witnessed and acknowledged (before a notary public) AFFIDAVIT of paternity with the Putative Father Registry; OR 4) BEFORE OR AFTER THE "FATHER'S" DEATH Paternity is established by clear and convincing evidence - A DNA genetic marker test - Open & notoriously acknowledging child as his own - Visitation, participation, gifts to child (NOT child support alone)
What circumstances DISQUALIFY a surviving spouse from taking an intestate share?
D-I-S-M-AL-S
1) Divorce: a final DECREE of divorce or annulment recognized as valid under NY law
2) Invalid divorce: procured by SURVIVING spouse
3) Separation decree: a final DECREE of separation was rendered against the SURVIVING spouse
** NOTE: a separation agreement does NOT result in disqualification UNLESS there is specific language in the agmt waiving the surviving spouse’s right under EPTL
4) Marriage is VOID (incestuous; bigamoous; fraud)
5) Abandonment/Lack of support: the SURVIVING spouse abandoned or refused to support the dead spouse
6) Slayer spouse:if the spouse KILLS the decedent, then she CANNOT inherit. ** No Slayer Statute in NY, but the court will impose a constructive trust
** NOTE: If there was a joint tenancy, the bad surviving spouse could ONLY get what she put in
What is the rule when the decedent is survived by a DISQUALIFIED spouse?
Rule = we assume the SURVIVING spouse PREDECEASED the decedent→ we then drop their share to the children, etc
What is the rule for an advancement in NY?
Advancement → at common law, an inter vivos (lifetime) gift was PRESUMPTIVELY an advance pmt of a distributee’s share
- This rule hase been REJECTED by statute in NY
- In NY, there is NO advancement UNLESS proven by…
1) a CONTEMPORANEOUS writing made at the time of the gift; AND
2) the writing is SIGNED by the DONOR or DONEE
If there IS a VALID advancement:
(i) the advanced property is ADDED with the rest of the decedent’s estate;
(ii) that total is then DIVIDED by the number of sharing distributees; AND
(iii) the share for distribute with the advancement is REDUCED by the value of the advancement
NOTE: if advancement is larger than intestate share, she DOES NOT have to return the difference
SIDENOTE: NY’s advancement statute ALSO applies to inter vivos gifts to beneficiaries under a WILL (Satisfaction of Legacies)
What is the rule when a distributee disclaims property in intestacy?
The interest in the decedent’s estate can be renounced in whole or in part
Rule: the person who disclaims is considered to have PREDECEASED the decedent. The interest THEN drops to the disclaiming distributee’s issue
NOTE: We assume the disclaiming distributee dies ONE DAY later than the decedent so the capita at each generation distribution is not disturbed
What steps must a distributee take to properly disclaim?
A valid disclaimer must be:
1) In a SIGNED and ACKNOWELDGED (notary public) WRITING;
2) Accompanied by an AFFIDAVIT stating no consideration was received for disclaiming;
3) Must be IRREVOCABLE; AND
4) Filed with the Surrogate’s Court within 9 MONTHS after date of death
NOTE: distributee cannot disclaim to
(i) avoid a FEDERAL TAX lien; OR (ii) remain eligible for Medicaid/Medicare
