Intestacy

Question 1

Intestate

Answer 1

Decedent has dies without a valid will disposing of his property at death
▪ Made no provisions
▪ Made a will that was invalid

Question 2

Partial Intestacy

Answer 2

Decedent’s will does not dispose of all the property owned by decedent
▪ Any property not disposed of in the will passes through intestacy

Question 3

Heirs

Answer 3

Those people defined by statute to take or designated to take through the will
▪ Heirs are determined statutorily at death
▪ Living people do not have heirs

Question 4

Spouse’s Share

Answer 4

o §2-102 - the whole amount maybe

Question 5

Share to Heirs Other than Surviving Spouse

Answer 5

o §2-103

Question 6

No Taker

Answer 6

o §2-105 No Taker

▪ If there is no taker under the provisions of this article the intestate estate passes to the state

Question 7

Per Capita Distribution (NY)

Answer 7

▪ (1) Divide the estate starting at the generation nearest the decedent where someone is living
▪ (2) The remaining that was not distributed at that generation falls to the next generation as one lump sum and is divided equally among the next generation
• If children’s parent is still alive  They are not part of the division on this second level (no representation)

▪ Similar to Modern, but treats the dead and their line differently. In the generation with living, those who are deceased, their shares are put in a pot and divided equally among all representatives.

Question 8

Simultaneous Death

Answer 8

o An heir, devisee, or life insurance beneficiary must establish survivorship by 120 hours by clear and convincing evidence
o If they cannot the heir, devisee, or life insurance beneficiary is deemed to have predeceased the decedent

Question 9

Rules Regarding Surviving Spouse

Answer 9

o One could only be a surviving spouse if they were married
o The definition of marriage has changed recently  spouse can be of the same sex as the deceased spouse
o What happens if you move to a different jurisdiction where this is not recognized
▪ The law of the state in which they were domiciled at the time of death controls
• Would have to leave a will if they wanted their “spouse” to inherit

Question 10

Adopted Children

Answer 10

o General Rule: Once adopted the child is treated the same as a biological child of the adoptive parents
▪ Generally inherit from the adoptive parents

Question 11

The Estates and Trusts Code states on Adoption

Answer 11

• Once the child is adopted, the rights of both the natural parents and relatives are terminated
• Because an adopted child has no right to inherit from the estate of a natural parent who dies intestate, the child may not inherit through the natural parent by way of representation

Question 12

Adult Adoption

Answer 12

▪ This practice is an act of subterfuge which in effect thwarts the intent of the ancestor whose property is being distributed and cheats the rightful heirs
o If it brings the person within a preexisting testamentary instrument to which they were clearly not intended to be a part, this is not permitted

Question 13

Legal Adoption

Answer 13

o Must Prove:
▪ Some showing of an agreement between the natural and adoptive parents, performance by the natural parents of the child in giving up custody, performance by the child by living in the home of the adoptive parents, partial performance by the foster parents in taking the child into the home and treating it as their child, and…the intestacy of the foster parent

Question 14

Who may legally contract for the adoption of a child?

Answer 14

o Biological parents
o Legal guardian
▪ Here, the Aunt was not a legal guardian, rather she was a legal custodian
▪ Legal custodians do not have the right to consent to the adoption of a child

Question 15

New York recognizes Equitable Adoption

Answer 15

• Equitable Adoption – focuses on the relationship
o Under the equitable adoption doctrine, and oral agreement to adopt A between H and W and A’s genetic parents is inferred if H and W take baby A into their home and raise A as their child

Question 16

Posthumous Children - Are posthumously conceived children beneficiaries for Social Security purposes?

Answer 16

Look at Grantor’s Intent

Three major factors to consider

   	(1) Best interest of the children
   	(2) The State’s interest in the orderly administration of estates    
   	(3) The reproductive rights of the genetic parent

Question 17

Posthumous Children - Best Interest of Child

Answer 17

• Want the children to be taken care of
• We may assume that the legislature intended that such children be entitled to the same rights and protections of the law as children conceived before death

Question 18

Posthumous Children - The State’s interest in the orderly administration of estates

Answer 18

• It will reduce the intestate share available to children born prior to the decedent’s death
• It will delay the finality of distribution
• Assuring the Administrative Goals:
o (1) Require certainty of filiation
o Posthumously conceived children must obtain a judgment of paternity as a necessary prerequisite to enjoying inheritance rights in the estate of the deceased genetic father
o (2) Establish limitation period

Question 19

Posthumous Children - The reproductive rights of the genetic parent

Answer 19

• The decedent intestate parent must affirmatively consent to
o (1) posthumous reproduction; and
o (2) to support any resulting child

Question 20

Posthumous Children - NY

Answer 20

Child conceived after death of the father = not an heir

Question 21

Assisted Reproduction - Surrogacy

Answer 21

o In the case of surrogacy – contract law controls
o Rights are determined by the surrogacy contract
▪ Look to the surrogacy contract
▪ No need to go through adoption proceedings in these situations

Question 22

Non-Marital Children - NY

Answer 22

▪ Inherit from the mother and maternal kindred
▪ Inherit from the father and paternal kindred if:
(1) There is a judicial determination of paternity; or
(2) The father of the child has signed a petition acknowledging paternity; or
(3) It is established by clear and convincing evidence
o Do they hold them out as their own
o Do they support them

Question 23

Advancements

Answer 23

a lifetime gift by the decedent to a descendant which will be counted against their intestate share

Question 24

Determining if there is an Advancement

Answer 24

Must have:
• (1) a contemporaneous writing
• (2) that evidences an intent to make a lifetime gift an advancement
▪ When there is not writing, must speculate as to the intent of the donor
▪ Generally, parent paying for undergraduate tuition ≠ advancement
▪ Generally, parent paying for professional school tuition = advancement

Question 25

Contemporaneous Writing

Answer 25

written at the same time as the gift was made

Question 26

Hotchpot Hypothetical:
▪	Estate = 85,000
▪	C1 = advancement of 10,000
▪	C2 = advancement of 5,000
▪	Hotchpot = total of 100,000/4 children
▪	Each is entitled to an intestate share of 25,000

How much do C1 & C2 get?

Answer 26

C1 only gets 15,000

C2 only gets 20,000

Question 27

Caring For Minors - Property Management Options:

Answer 27

1) Guardianship of the property
2) Custodianship
3) Trusteeship

Question 28

Guardianship

Answer 28

• It is like going through a continuous probate until the child reaches the age of maturity
• Should be avoided

Question 29

Trusteeship

Answer 29

• Trusts are available only to persons who create them during life or who die testate and create one by will
• Most flexible of all property arrangements
• A trust can postpone possession until the donor thinks the child is competent to manage the property, or entirely

Question 30

Bars to Succession

Answer 30

1) Slayer Rule

2) Disclaimer

Question 31

Slayer Rule

Answer 31

• Rule – Can’t profit from your wrongdoing
• Who takes?
o The prevailing view is that the killer is treated as having predeceased the victim

Question 32

Disclaimer

Answer 32

-renouncing your intestate share
-gifts require acceptance
-defines you as dying before the decedent or time of distribution
-title will pass to the next intestate successor
▪ You are defined as the heir but you forego your intestate share

Question 33

Purposes of Disclaimer

Answer 33

1) Avoid Taxes

2) Avoid Creditors