Intestacy Flashcards
When does intestacy occur?
- Intestate as to person (Total intestacy)
- Intestate as to property (Partial intestacy)
What is intestacy as to person? (Total i’cy)
Decedent dies without a valid will
What is intestacy as to property? (Partial i’cy)
Decedent dies with a valid will but it doesn’t dispose of all D’s property
(Arises due to poor drafting)
(**Commonly used on bar to test BOTH testate and intestate issues in one)
What is the basic idea of intestate succession?
(a.k.a. Descent and Distribution)
Any property remaining after the intestate’s debts and taxes are paid off passes to his heirs (i.e., “Distributees”)
What is the difference between an heir and a beneficiary?
Heirs take under intestacy;
Beneficiaries take under will
Who are descendants?
Your issue;
Your children and their children, ad infinitum
(i.e., your direct line)
How do you determine applicable law w/r/t intestacy and marital rights?
Determining who owns marital property: Analysis governed by the law of the spouses’ domicile at the time the property was acquired
(i.e., If assets acquired in a community property state (i.e., 50/50 split) and spouses later move to NY, NY still treats that property as shared equally by both)
How do you determine applicable law w/r/t intestacy and succession rights?
Q: Which state’s intestacy laws apply?
A:
IF personal property: Intestate’s domicile at time of death;
IF real property: The location of the real property
What are the five scenarios for survivorship when decedent dies?
(i.e., what are the scenarios of who survives him?)
Decedent dies and is survived by:
- Spouse and no children/descendants
- Spouse and children/descendants
- Children and no spouse
- Children and descendants of a predeceased child
- No spouse and no descendants
What happens if D dies and is survived by his spouse and no children?
Surviving spouse takes all
What happens if D dies and is survived by his spouse AND descendants?
Surviving spouse: Takes the first $50k AND 1/2 of the remaining balance
Descendants: Take the other 1/2 of the remaining balance AFTER S takes her $50k (Kids divide their half equally among themselves, regardless of whether they are full or half-siblings)
What happens if D dies and is survived only by his children?
If the decedent is survived by his children (i.e., no surviving spouse and no decedents of a predeceased child), each suviving child receives an equal share
What happens if D dies and is survived by his children AND descendants of a predeceased child?
(“Per capita at each generation” approach)
First, give one equal share to each of D’s children AND predeceased children who have surviving descendants.
Then, give to each child an equal share for that generation;
What’s left over gets divided equally by the descendants in the following generation whose parent predeceased them.
(EXAMPLE: G has three kids, AB&C. Each is entitled to 1/3 of G’s property. But B&C die before G dies. B had two kids, X&Y; C had one, Z. So A gets the 1/3 he’s owed, and the remaining 2/3 owed to B&C gets divided equally among the three grandkids, XY&Z. THUS: A gets 1/3, and XY&Z each get 2/9.)
What happens if D dies and is not survived by a spouse or descendants?
D’s money goes to:
- His parents or surviving parent; OR (if both dead)
- His parents’ descendants (Intestate’s siblings, neices, nephews); OR (if none)
- 1/2 to each set of grandparents (i.e., maternal and paternal) OR (if grandparents are dead) to their descendants (I’s aunts, uncles, cousins) who take per capita at each generation; OR (if one whole side of the family is dead)
- All to the surviving grandparents’ side and their descendants; OR (if I only survived by first cousins once removed, i.e., grandparents great-grandkids)
- 1/2 to maternal FCOR and 1/2 to paternal FCOR in equal shares; OR (if one side is dead)
- All to I’s FCOR on the surviving side
What happens if Decedent dies and is not survived by anyone, including grandchildren of grandparents?
D’s estate “escheats” to the state of NY.
From whom may adopted children and their descendants inherit?
Adopted kids (and their descendants) inherit from their ADOPTIVE PARENTS
(i.e., do NOT inherit from BIRTH parents)
HOWEVER, a kid adopted by the new spouse of his biological parent (i.e., his new step-mother or step-father), DOES inherit from his birthparents PLUS from his new step-parent!
What are the inheritance rights of PARENTS of an adopted child?
Biological parents do NOT inhereit from the adopted child;
Adoptive parents DO inherit from adopted child.
What is the rule on non-marital children w/r/t inheritance?
Child always takes from the mother (unless adoption);
Child will take through the father as well, provided paternity is established via:
- Marriage
- Order of filiation;
- Witnessed and acknowledged/notarized affidavit of paternity; OR
- C&C evidence (e.g., DNA, open acknowledgement by the father, etc.)
How are half-blooded heirs treated in NY?
No different than full-blood! Entitled to full share.
When will a surviving spouse NOT be entitled to an intestate share? (Six instances)
(Hint: D/I/S/M/AL)
Surviving spouse not entitled to intestate share if DISMAL:
- Divorce
- Invalid divorce obtained by surviving spouse
- Separation decree
- Marriage is void
- Abandonment or Lack of support
What is an advancement?
Irrevocable gift intended by the donor as prepayment of an inheritance
What is required to show an advancement?
A valid advancement must be:
- In writing; AND
- Signed by the donor/advancer OR donee/advancee
What is the effect of an advancement?
If advancee still wants to share in the estate upon D’s death, he must account for the prior advancement;
i.e., Compute the shares of the inheritance as if the advancement had not been given out (and based on the value of the advancement at the time of death)
(EXAMPLE: Mike gives Marsha 10 acres on her 25th birthday as an advance on her inheritance. When Mike dies, he leaves $300k, divided among Marsha, Greg, and Jan. The 10 acres is now valued at $30k. So total value is $330k, divided evenly among the three kids. Each is entitled to $110k, but Marsha only gets $80k in new value because she already has the $30k in land.)
What is a disclaimer?
An heir, beneficiarym surviving joint tenant, etc. cannot be forced to accept an inheritance or gift, and may instead DISCLAIM it.
