1. Intestacy

Question 1

Marital Rights – Who owns the property before death?

Answer 1

Law of the domicile at the time the property is acquired; rights to not change as the couple moves from one state to another.

Question 2

Which state’s intestacy law applies to personal property?

Answer 2

The law of the intestate’s domicile at death.

Question 3

Which state’s intestacy law applies to real property?

Answer 3

The law of the situs of the property (where located)

Question 4

If the intestate is survived by a spouse and has no descendants, the surviving spouse takes:

Answer 4

Everything

Question 5

If the intestate is survived by a spouse and descendants:

Answer 5

Surviving spouse takes the first $50,000 and one half of what’s left.
The descendants take the other have of the residual.

Question 6

If the decedent is survived only by children (that is, no surviving spouse and no descendants of a predeceased child):

Answer 6

Each surviving child receives an equal share.

Question 7

If the decedent is survived by children and descendants of a predeceased child:

Answer 7

The estate is divided per capita at each generation.

Question 8

Per Capita at Each Generation

Answer 8

1. Divide the estate into shares creating:
   - one share for each surviving descendant in the closest generation to the intestate in which there is a surviving descendant, and
   - one share for of each predeceased descendant in that generation who has a surviving descendant.
2. Each living member of the closest generation to the intestate in which there is a surviving descendant receives one share.
3. The shares created on behalf of the deceased members of that generation are combined and then distributed per capita among the younger generation heirs.

Question 9

What if the decedent is not survived by a spouse or descendants?

Answer 9

All to parents or the surviving parent

Question 10

What if the decedent is not survived by a spouse, or descendants, or a parent?

Answer 10

All to the parents’ descendants (the intestate’s brothers, sisters, nieces, nephews, etc.)

Question 11

What if the decedent is not survived by a spouse, or descendants, or a parent, or by a parent’s descendants?

Answer 11

1. Half to maternal grandparents OR surviving grandparent OR (if neither is living) to their children and grandchildren (the intestate’s aunts, uncles, cousins, etc.), who take per capita at each generation; and
2. Half to paternal grandparents OR surviving grandparent OR to their children and grandchildren (the intestate’s aunts, uncles, cousins, etc.), who take per capita at each generation.

Question 12

What if the decedent is not survived by a spouse, or descendants, or a parent, or by a parent’s descendants, or by grandparents or their descendants on one side?

Answer 12

All to grandparents OR their children and grandchildren on the other side.

Question 13

If only survived by great grandchildren of grandparents (the intestate’s first cousins once removed):

Answer 13

1. Half to maternal great grandchildren in equal shares; and

2. Half to paternal great grandchildren in equal shares.

Question 14

If not survived by grandchildren of grandparents

Answer 14

The estate escheats to the state of New York

Question 15

What are the inheritance rights of an adopted child regarding his adoptive parents?

Answer 15

Adopted child and his descendants inherit from and through the parents by adoption and their kin.

Question 16

What are the inheritance rights of an adopted child regarding his biological parents?

Answer 16

Adopted child does not inherit from and through the biological parents.

Exception: A child adopted by the spouse of a birth parent (step-parent) does inherit from and through the birth parents.

Question 17

Inheritance rights of adoptive parents:

Answer 17

Parents by adoption inherit from and though the adopted child.

Question 18

Inheritance rights of biological parents:

Answer 18

Biological parents do not inherit from the adopted child.

Question 19

If the adopted child is related to the decedent by both a birth relationship and an adopted relationship, the child inherits:

Answer 19

Under the birth relationship unless the decedent was the adopting parent, then the child inherits under the adoptive relationship.

Question 20

The inheritance rights of a non-marital child from the mother:

Answer 20

Child takes from and through the mother.

Question 21

The inheritance rights of a non-marital child from the father:

Answer 21

Child takes from and through the father only if paternity is established by one of the following:

(1) The father marries the mother after the child’s birth,
(2) An order of filiation in a paternity suit is entered adjudicating the man to be the child’s father
(3) The father files a witnessed and acknowledged (before a notary public) affidavit of paternity with the Putative Father Registry, or
(4) Paternity is established by clear and convincing evidence

Question 22

Two examples of clear and convincing evidence that would establish paternity:

Answer 22

1. DNA
2. Father openly and notoriously acknowledges the child as his own such as by stating, “This is my child,” or putting his name on the child’s birth certificate.

Question 23

How do half-blood heirs inherit?

Answer 23

No difference under New York law. Half-blooded heirs receive full shares.

Question 24

How are disqualified spouses treated?

Answer 24

If the spouse is disqualified, the heirs are determined as if the surviving spouse died before the intestate spouse.

A legal fiction that the surviving spouse did not actually survive.

Question 25

Under what circumstances will a spouse be treated as disqualified?

Answer 25

1. Divorce
2. Invalid divorce obtained by surviving spouse
3. Separation decree
4. Marriage is void (e.g., incestuous or bigamous)
5. Abandonment of Lack of support

Question 26

Does NY have a slayer statute?

Answer 26

No, Thus, the court may impose a constructive trust on the murdering heir to prevent unjust enrichment.

Question 27

Advancement Definition

Answer 27

Irrevocable gift intended by the donor as prepayment of an inheritance.

Question 28

What proof is required of an advancement?

Answer 28

1. Evidence of the advancement must be in writing (not oral) which is
2. Made at the time of the gift, and
3. Signed by the donor (advancer) or donee (advancee).

Question 29

What is the effect of an advancement?

Answer 29

If advancee wants to share in the estate, advancee must account for the advancement

Question 30

Reasons to Disclaim:

Answer 30

1. Burdensome — e.g., afraid of liability if property contains a toxic waste dump.
2. Tax — Disclaimed property is not treated as a gift from the disclaimant to the eventual recipient.
3. Avoid Creditors except for federal taxes and Medicaid / Medicare.

Question 31

Requirements for a disclaimer:

Answer 31

1. Written.
2. Signed by the disclaimant.
3. Acknowledged before a notary.
4. Accompanied by a separate affidavit stating that no consideration was received for disclaiming (unless the Surrogate’s Court authorizes receipt of consideration for the disclaimer).
5. Filed with the Surrogate’s Court within 9 months from death. (Thus, time could run before you even know you are an heir or beneficiary.)

Question 32

What effect does acceptance have on one’s ability to disclaim?

Answer 32

It would then be too late to disclaim.

Question 33

What happens to the property that a person disclaims?

Answer 33

Unless the document provides otherwise, disclaimed property passes as if the person disclaiming had predeceased the decedent.

Question 34

An heir must outlive the intestate by __________________________ in order to inherit.

Answer 34

120 hours

If there is insufficient clear and convincing evidence that the heir survived by this time period, the heir is treated as if the heir predeceased the intestate.

Question 35

Are negative will provisions valid?

Answer 35

Yes. Unlike the common law, New York permits a testator to preclude an heir from inheriting when partial intestacy exists.