Intestacy

Question 1

SCPA §1301

Answer 1

A small estate is the estate of a domiciliary or a non-domiciliary who dies leaving personal property having a gross value of $30,000 or less exclusive of property required to be set off under EPTL 5-3.1(a)

Question 2

SCPA §1418

Answer 2

Statutory list of Administrators

Question 3

SCPA §1001

Answer 3

Order of Priority SCGPS

The surviving spouse

The children

The grandchildren

The father or mother

The brothers or sisters

Any other persons who are distributees and who are eligible and qualify, preference being given to the person entitled to the largest share in the estate

Question 4

SCPA §1802

Answer 4

Creditors have 7 month SoL for public notice in NY

Question 5

EPTL 1-2.10

Answer 5

Issuethe descendants in any degree from a common ancestor, including adopted children.

Question 6

UPC §2-101

Answer 6

Intestate Estate

(a) Any part of estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed, except as modified by the will
(b) Decedent may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession…passes as if that individual or class had disclaimed his intestate shares

Question 7

UPC § 2-103

Answer 7

Share of Heirs Other than Surviving Spouse

Any part of the estate that does not pass of the surviving spouse, descends in this order: Children Grandchildrensurviving parent(s) descendants of one’s parents

UPC says step children CAN TAKE, because they consider blended families

In NY step children CANNOT TAKE

Question 8

UPC § 2-105

Answer 8

No Taker—Escheat provision. If there is no taker under these provisions, the estate passes to the state

Question 9

EPTL §4-1.1New York State Intestacy Statute

Answer 9

See page 5 of outline

Question 10

By Representation?

Answer 10

A hierarchy for distribution to the lineal descendants

Question 11

NY Parentelic System not a consanguinity approach

Answer 11

Stops at first cousins

Question 12

UPC section 2-102 Share of surviving Spouse

Answer 12

1. Takes into account blended family and ascendant survivors (NY doesn’t look into that)
2. Takes into account kids from prior relationships so that they are taken care of separately with a carve out in the surviving spouse’s cut
3. Spouse inherits whole estate if no descendant or parent survives the decedent OR all of the decedent’s descendants are also descendants of the surviving spouse

Question 13

EPTL 2-1.6

Answer 13

NY Simultaneous Death Statute

1. Clear and convincing evidence is necessary
2. If the governing instrument (will, contract, etc.) contains explicit language dealing with simultaneous deaths, then it trumps the statute
3. (b)(5)Also will not apply if this means the property will escheat to the government
4. Joint tenancy(a)(4) Where co-owners but no clear and convincing evidence, one-half of the property is treated as if that one person had survived. Treat the other half as if the other spouse had survived as if the other one did not survive.
   
   1. Each partner in the marital couple who are joint owners together, divide in half and treat each as if they were the survivor and allow it to go through their estate
   2. Do the same thing with proportional shares

Question 14

Determining Time of Death

Answer 14

Modern trend is where circulatory or respiratory functions are maintained artificially, death occurs when there is irreversible cessation of total brain activity

Question 15

EPTL §2-1.2(b)

Answer 15

Post September 1st, 1992 instruments. Whenever a disposition of property is made to “issue”, such issue take by representation, unless a contrary intention is expressed.

Question 16

EPTL §1-2.14 Modern Per Stirpes

Answer 16

(“per capita with representation”): treats equally each line beginning at the closest living generation.

MAJORITY – more than 1/3 of jurisdictions use this

Start dividing estate at the level with at least one survivor.

DO NOT DIVIDE UNTIL YOU FIND A SURVIVOR

Question 17

EPTL 4-1.1

Answer 17

• Per Capita at Each Generation (By Representation): treats equally each taker at each generation with the other takers at that generation
• Initial division of shares is made at level where one or more descendants is alive, but shares of the deceased persons on that level are treated as one pot and dropped down and divided equally among the representative son the next generational level
• EPTL §1-2.11Per capita: a disposition or distribution of property is per capita when it is made to persons, each of whom is to take in his own right an equal portion of such property.
• When you have more than one predeceased, pool together shares

Question 18

A has 2 children, b and C, B predeceases A, leaving a child, D. C predeceases A, leaving two children, E and F. E predeceases A, leaving two children G and H.

Answer 18

Question 19

A has 3 children, B, C, and Z. B and Z predecease A. Z leaves no children. B left a child, D. C predeceases A, leaving two children, E and F. F has a Child I. E predeceases A, leaving two children G and H.

Answer 19

Question 20

Look over the hypos provided for intestacy distributions on twen and syllabus. 3 minutes.