Intestacy Flashcards
What law governs wills?
EPTL. Estates Powers and Trusts Law
Intestate vs. Testate
Decedent vs. Testator
Intestate is when a person dies without a will, testate is when a person dies with a will.
Decedent is a person who dies without a will, a testator is a person who dies with a will.
When does intestacy apply?
When person dies without a will or a will does not make a complete distribution of the estate.
What is the order of priority for appointment of administrator? (Administrator = Intestacy)
- Surviving Spouse*
- Children*
- Grandchildren
- Parent
- Siblings
- Anyone else
What is the rule for distribution when decedent is survived by a spouse and no children?
The surviving spouse takes the whole estate.
What is the rule for distribution when decedent is survived by a spouse and children?
Surviving Spouse takes $50,000 + 1/2 of the residuary.
The issue take the left over residuary. [they split it] [doesn’t matter if the kids are from another marriage, all his children split it]
Unless the estate happens to be less than $50,000, then the whole estate goes to the surviving spouse.
What is the rule for distribution when decedent is survived by children only and no child has predeceased the decedent?
The estate passes to the children in equal shares.
What is the rule for distribution when decedent is survived only by children and predeceased children?
The estate passes to the “alive’ children and the issue of the dead children by representation (per capita at each generation).
Meaning/Steps:
- The property is divided into as many shares as there are issue (alive or dead) at the first generational level where there are survivors.
- All living issue at the first generational level take one share each.
- The shares of the deceased issue at the first generational level are combined and then divided equally among the takers at the next generational level.
Rule of Thumb: Issue in the same generation will always have equal shares.
***In-law spouses of your issue do not take anything under intestacy!!!*** Highly tested!
Do predeceased children receive anything in intestate?
No! Goes to the next level. It does not go to their estate or anything like that.
What is the rule for distribution when decedent is survived by no spouse and no issue?
- All to parents or surviving parent.
- If not survived by parents, all to issue of parents (i.e. decedent’s siblings and issue of deceased siblings), who take per capita at each generation.
Describe generally per capita vs. per stirpes?
When do per stirpes?
Per Capita: Every member of the same generation gets the same amount. This is the general rule.
Per Stirpes: You split a predeceased issue of testator’s property equally among his issue. So, 2nd level issue split only their parents share.
When do per stirpes? If the will calls for it, or if a party disclaims gift and thereby reduces the gifts of someone else [disclaiming parties’ issue get per stirpes].
What is the trick regarding per stirpes and per capita?
If only one person at the first generational level died, the distribution will be the same.
What are the inheritance rights of adopted children with respect to their new parents?
What are the inheritance rights of adopted children with respect to their birth parents?
What if the child is adopted by a relative (like an aunt or uncle?)
1) Adopted children have full inheritance rights from the adopting family (and vice versa if kid dies first)
2) General Rule: Adopted children do NOT have inheritance rights from their birth parents or other members of the birth family.
Exception: If the child is adopted by the spouse of a birth parent, the child has inheritance rights from both the adopting parents and the birth parents.
This is ONE WAY STREET for the exception, meaning that the new adoptive parent cannot inherit from the child.
3) SPECIAL RULE for adoption by relative (aunt or uncle): The child will always inherit under the birth relationship, UNLESS the decedent is the adopting parent, then the child inherits under the adoptive relationship.
What rights do nonmarital children have in intestacy?
General Rule:
Nonmarital children have full inheritance rights from the mother and the mother’s family.
A nonmarital child only inherits from the father if paternity is establsihed by one of the following 4 tests:
- The father marries the mother after birth (legitimization by marriage)
- An court order establishing paternity
- The father has witnessed and acknowledged an affadavit of paternity in front of a notary public
- Paternity is established by clear and convincing evidence.
Clear and Convincing Evidence may include: A DNA test, or open and notorious**ly acknowledging the child as his own [This is my kid, on birth certificate, going to school activities]. (support by itself is not enough)
When is a spouse disqualified from taking an intestate share?
DISMAL.
- D: Divorce [final decree of divorce or annulment recognized under NY law]
- I: Invalid Divorce [The surviving spouse procured a divorce or annulment not recognized under NY law. One way]
- S: Separation Decree: A final decree of separation was rendered against the surviving spouse. A separation decree is not enough unless it specifically waives surviving spouse’s rights under the EPTL. [Surviving spouse not disqualified if final decree of separation was rendered against the deceased spouse].
- M: Marriage is Void.[Incestuous or bigamous, or fraud]
- AL: Abandonment or Lack of Support [Surviving spouse abandoned or refused to support deceased spouse] ONE WAY.
