Flashcards in Wills Deck (169)
Sources of New York Wills Law
1. Estates Power and Trusts Law (EPTL)
2. Surrogates Court Procedure Act (SCPA)
Order of Priority for Appointment as Administrator
1. Surviving spouse
6. Any other distributee
Intestate Distribution - Survived by his spouse and issue: What do spouse and issue get?
1. Surviving spouse: $50k + 1/2 residuary
2. Issue: Leftover residuary divided equally
Intestate Distribution - Survived by children and issue of predeceased children
Divide equally among living/dead 1stGen members.
Take portions of dead 1stGen members, divide equally among 2ndGen descendents of dead kids.
NOT PER STIRPES
- Issue in the same generation will always have equal shares
Intestate Distribution - No surviving spouse or issue
1. All to surviving parents; then
2. All to siblings and issue of deceased siblings
3. Grandparents and their children/grandchildren
4. Great-grandchildren of grandparents.
5. State of NY (if closest are great great grandchildren of grandparents OR great grandparents issue)
Per Stirpes (most states) vs. Per Capita (NY) - What is the Default?
In NY, per capita at each generation is the default if intestate or will is silent.
When will per capita and per stirpes result in the same distribution at one particular generational level?
When only 1 issue in that generational level is dead.
Adopted Children - General Inheritance Rule
Full inheritance rights FROM THE ADOPTING FAMILY and to their issue.
Adopted Children - What about the birth family?
adopted child has no inheritance rights from the birth parents or other birth family members
Adopted Children - Parental Spouse Adoption Exception
If a child is adopted by the spouse of a birth parent, the child and child's issue can inherit from BOTH adopting and birth parent.
Adopted Children - Child adopted by a relative (e.g. aunt or uncle)
If adopted child is related to the decedent by both a birth relationship and an adopted relationship, the child inherits under the BIRTH relationship, UNLESS the decedent was the adopting parent, then the child inherits under the adoptive relationship.
Nonmarital Children - General Rule
A nonmarital child has full inheritance rights from the mother and mother's family
Nonmarital Children - How to get inheritance from birth father?
Only if paternity is established by 1 of 4 Tests (1-3 only during father's life):
1. Father marries the mother after the child's birth
2. Order of filiation in a paternity suit
3. Father files a witnessed and acknowledged affidavit of paternity before a notary public with the Putative Father Registry; or
4. PATERNITY IS ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE
Nonmarital Children - Types of Clear and Convincing Evidence to establish paternity
1. DNA test; or
2. Openly and notoriously acknowledged the child as his own.
EXC: Giving support is not acknowledgement (public policy)
Circumstances Disqualifying Spouse from Taking Intestate Share
I nvalid divorce by surviving spouse (NOT DEAD ONE)
S eparation decree against the surviving spouse (NOT AGREEMENT)
M arriage is void (incest, bigamy, fraud)
A bandonment by surviving spouse
L ack of support by surviving spouse
How is a disqualified spouse accounted for in intestate distribution?
Assuming the disqualified spouse pre-deceased the decedent, and continue according to the EPTL
Heir unjustifiably kills decedent?
NY: No statute, creates "constructive trust"
Common Law Advancement Defined
A lifetime gift to a child was PRESUMPTIVELY an advancement of his intestate share, to be taken into account when distributing the estate at death.
NY Advancement Rule
By statute, "advancement" exists ONLY IF proven by
1. Contemporaneous writing made at the time of the gift; AND
2. signed by the donor OR donee
Does a named distributee HAVE to take the property left to him?
No, you can always disclaim.
Formal requirements for disclaimer
In writing, signed, acknowledged by notary
Separate affidavit that no consideration paid for disclaimer
Filed with Surrogate Court within 9m of death
What is the effect of a person who disclaims property?
Person who disclaims is treated as if he predeceased the decedent.
When will a disclaimer not operate as if the disclaiming person predeceased the decedent?
When a disclaimer would create an inequitable result (e.g. in a per capita distribution)- disclaiming person will be treated as if he died 1 day after the decedent to create a per stirpes distribution
When can't a person disclaim?
When it would affect medicare or medicaid benefits.
Probate Proceeding Defined
Surrogate's Court proceeding to:
1. Judicially determine whether the testator's will was validly executed and determine the intestate distributees; AND
2. Appoint the executor to administer the testator's estate.
Probate Estate Defined
Assets held in the testator's name ALONE that do not pass by operation of law and which the executor administers in accordance with the testator's will.
Requirements of a Duly Executed Will - 7 Point Test
1. Testator must be 18 years old
2. Signed by testator or by a proxy
3. T's signature at the "end thereof."
4. T must signs in the presence of each witness
5. Publication (declare to witnesses that it is "last will and testament"
6. 2 Witnesses sign
7. Ceremony completed in 30 days
Duly Executed Will - Proxy Requirements
1. Must also sign her name
2. Cannot be counted as an attesting witness; and
3. must affix her address
Duly Executed Will - Publication Requirements
Publication requires the testator tell the witnesses that they are witness a will by declaring it his "last will and testament."