intestacy Flashcards
definitions
outline p. 134
application of intestacy rules
EPTL (Article 4) contains rules of descent and distribution of property (real and personal) in intestacy and typically apply when:
a) Decedent Left No will—or left a will that was not properly executed)
b) Will Does Not Make Complete Disposition (partial intestacy), or
c) Heir (Distributee) Successfully Challenges (Contests) Will—and the will is denied probate.
appt of administrator
order of priority for appt:
(1) Spouse (surviving); (2) Children; (3) Grandchildren; (4) Parent; (5) Siblings; (6) Other collateral relatives (any other distributee).
a) TIP: Fight will be between spouse and children; spouse usually wins, even if child is a lawyer
distribution
- PER STIRPES V. PER CAPITA DISTRIBUTION (“BY REPRESENTATION”)
a) Most States: distribution is “per stripes” under which issue of predeceased child takes share the predeceased child would have taken, if alive (where each line was treated separately and members of the same generation could get different shares depending on how many children their respective parents had).
b) NYS: default per capita at each generation, whether intestate or testate (treat all in same generation same).
1) Except: in will, testator can expressly override and change default distribution to “per stirpes.”
distribution-decedent survived by spouse and no children
If intestate decedent is survived by spouse but not by any issue, the surviving spouse takes the entire estate.
distribution-decedent survived by spouse and children
a) If intestate decedent survived by spouse and 1+ children or their issue (descendants), whether of this marriage or an earlier marriage—
1) Surviving spouse gets first $50k off the top of estate and 50% of residuary (balance)
(a) If estate <$50,000 → entire estate goes to surviving spouse
2) Issue inherits left-over residuary (share equally)
(a) Children From Prior Marriage: doesn’t matter what marriage they’re from as long as children of decedent.
(b) Step-Children: get nothing
distribution-decedent survived by children only
If intestate decedent is survived by children only (and no child has predeceased decedent) → whole estate in equal shares to each child
distribution-decedent survived by children and issue of predeceased children (grandchildren)
a) If decedent is survived by children and the issue of predeceased children → estate to “alive children” and the issue of dead children “by representation,” “per capita at each generation.”
1) Step 1: Property divided into as many equal shares as issue at first generational level at which there are survivors (usually children).
(a) TIP: “At the first level, X is alive so that is where we make our first division. If each were alive, each would get equal share.”
2) Step 2: All living persons at first generational level take one share each.
(a) TIP: “X is alive, so he gets his share.”
3) Step 3: The shares of deceased persons at first generational level are combined and then divided equally among takers at next generational level in the same way.
4) Result: Issue in same generation will always have equal shares.
b) Note: Anti-lapse does not apply here, applies when decedent dies (w/Will)
distribution-intestate decedent not survived by spouse or issue
a) All to parents or surviving parent
b) If not survived by parents: All issue of parents (siblings and issue of deceased brothers and sisters) (per capita at each generation)
c) If not survived by parents or issue of parents:
1) 50% to maternal grandparents or surviving grandparent, or (if neither living) to their children and grandchildren
2) 50% to paternal grandparents or surviving, or (if neither living) to their children and grandchildren.
3) If one of these fails (no grandparents or their children and grandchildren on one side), gives to other side.
d) If only survived by great grandchildren of grandparents (i.e. first cousins once removed)
1) 50% to maternal great-grandchildren
2) 50% to paternal great-grandchildren
e) If no great grandchildren on one side: all to great grandchildren on other side.
f) No inheritance beyond great-grandchildren of grandparents. If nearest kin are great great grandchildren of grandparents, or issue of great-grandparents, the estate escheats to state of New York.
1) Decedent’s relatives of the half blood are treated as if they were relatives of the whole blood.
inheritance rights of adopted children
a) ADOPTED CHILDREN: adopted children have full inheritance rights from adopting family (and vice versa), but no inheritance rights from birth parents/family
1) Except: if child adopted by spouse of birth parent, child can inherit from all three lines (but one-way street, the non-marital parent cannot inherit up from kid)
b) ADOPTED BY RELATIVES: If adopted child is related to decedent by both natural relationship and adoption (e.g., an aunt or uncle), child inherits under birth relationship only UNLESS decedent was adopting parent, in which case child inherits under the adoptive relationship only (kid always wins!).
inheritance rights of non-marital children
1) From Mother: full inheritance rights from the mother (and mother’s family) and vice versa.
2) From Father: only if paternity established by one of following four tests:
(a) Legitimated by Marriage—father married mother after child’s birth; or
(b) Order of Filiation in Paternity Suit During Father’s Lifetime adjudicating man to be father;
(c) Father Files Witness and Acknowledged Affidavit (before notary) of Paternity with Putative Father Registry; or
(d) After Death, Paternity Established in Probate Proceeding by clear and convincing evidence OR openly and notoriously acknowledge child.
(i) How to establish paternity in probate: DNA test, put name on birth certificate, financial support alone is insufficient, buying gifts and going to school functions etc.
(ii) Note: Do not confuse this paternity test with equitable paternity (Dom. Rel.)
(a)-(c) must be done during father’s life; (d) done after
circumstances disqualifying spouse from taking intestate share
DISMAL
Assume wrongful surviving spouse predeceased and drop her share to kids (whoever is next in line) as punishment for a wrongful surviving spouse (but not the rightful survivor of the bad spouse).
a) D: Divorce: a final decree of divorce or annulment valid under New York law.
b) I: Invalid Divorce: divorce procured by surviving spouse, outside of NY, divorce or annulment not recognized as valid under New York law. NOTE: One-Way: surviving spouse not disqualified if deceased spouse procured invalid divorce or annulment
c) S: Separation Decree: A final decree of separation rendered against surviving spouse. NOTE: But, separation agreement alone insufficient unless specific language in agreement waiving; One-Way: Rightful surviving spouse not disqualified if final decree of separation rendered against deceased spouse.
d) M: Marriage was Void: incestuous or bigamous.
e) AL: Abandonment / Lack of Support: surviving spouse abandoned/refused to support deceased spouse. NOTE: One-Way: Rightful surviving spouse not disqualified if deceased spouse abandoned or refused to support him or her.
f) There Are No Slayer Statutes in NY per se: but if spouse kills spouse court will impose a constructive trust. BUT there is a statute that says if you have joint property and one spouse kills other, sever tenancy and bad spouse can keep interest/share.
advancements
lifetime gifts to intestate distributee
a) CL: Lifetime gift to kid presumptively advancement (i.e. advance payment) of intestate share, to be taken into account in distributing estate at death. Presume parent would always want to treat kids equally.
b) NYS: rejected “advancement” presumption by statute.
1) No advancement unless BOTH:
(a) contemporaneous writing (at time of gift); AND
(b) signed by the donor or donee.
c) If Advancement: take value of estate, add value of advancement (at date of death) to get hypothetical gross estate value at death. Divide estate by number of issue to get share each issue is entitled to. Reduce the share of the issue that received the advancement by the value of the advancement.
1) This similar to satisfaction of legacies under will.
disclaimer (“renunciation”) by intestate distributee
a) Rule: Person who disclaims is considered to have pre-deceased decedent and children take instead.
1) Except: won’t let disclaimer screw someone else’s legitimate share; effect reversed; treat as if disclaimer died one day after the decedent → results in per stirpes, instead of per capita
2) Rationale: No one can be compelled to be beneficiary by will or operation of law. Distributee can disclaim or renounce (in whole or in part) interest in decedent’s estate.
b) Valid Disclaimer Requirements:
1) in writing, signed and acknowledged (before notary public) AND
2) accompanied by separate sworn affidavit that no consideration received for making disclaimer (unless Surrogate’s Court authorizes it); AND
3) irrevocable (can’t change your mind; AND
4) disclaimer must be filed with Surrogate’s Court within 9 months after decedent’s death.
c) Purpose of Disclaimer
1) Avoid Estate/Gift Tax
2) Avoid Creditors
3) But—cannot disclaim to remain eligible for Medicaid or defeat federal tax lien.
d) Parties Who Can Disclaim
1) Will beneficiaries
2) Beneficiaries of life insurance policies; employee benefit plans, trusts, other non testamentary transfers;
3) Surviving joint tenants or joint tenants by entirety (to extent decedent furnished consideration);
4) With court approval, disclaimer on person’s behalf by guardian, holder of durable POA, or decedent’s personal representative
