Intestacy Rules Flashcards
What law governs intestacy?
The EPTL (Estates Powers and Trusts Law)
When will a court use intestacy rules?
- when the person died without a will
- when the will doesn’t distribute the entire estate
- when the will is successfully challenged and denied probate
What is the order of priority for being deemed an administrator?
Surviving spouse Children Grandchildren Parents Siblings Any other distributee
If a decedent is survived by a spouse but no children or issue, who takes?
The surviving spouse takes the whole estate.
When a decedent is survived by a spouse and children, who takes?
Surviving spouse takes $50k + 1/2 of the residuary.
Children will evenly split 1/2 of the residuary (after spouse takes $50k).
What result if the decedent is survived by a spouse and children but the state is worth less than $50,000.
The spouse takes the whole estate.
What result if a decedent is survived by children only.
If no child has predeceased, the children take in equal shares.
If a decedent is survived by children and issue of predeceased children, who takes?
The estate passes to the alive children and the issue of the dead children per capita at each generation.
How is an estate distributed if per capita at each generation?
The basic idea is that all takers in the same generation will take the same amount.
Step 1: count the number of children of the decedent (alive or dead)
Step 2: divide decedent’s estate by that number
Step 3: give the alive children their share.
Step 4: combine the remaining shares of the predeceased children
Step 5: add up the number of issue of the predeceased children (likely the grandchildren of decedent).
Step 6: divide the remaining amount by the number of grandchildren (kids of the predeceased children)
Step 7: give each grandchild their share.
How is an estate distributed per stirpes?
The basic idea is that the share of a predeceased child will drop down to his issue and the issue will split the share of their parent.
Step 1: add up the number of decedent’s children (alive or dead)
Step 2: distribute shares to alive children
Step 3: drop down the shares of the predeceased children to their issue
Step 4: distribute evenly between siblings, who split their deceased parent’s share.
What is the default distribution system used in NY?
Per capita at each generation.
Does an adopted child have inheritance rights from the birth or adoptive family?
From the adoptive family and not the birth family unless:
- adopted by the spouse of birth parent (can take from either side of birth family and the adoptive family)
- adopted by a relative (child inherits under the birth relationship unless decedent is the relative - and can inherit from adoptive parent).
What are a non-marital child’s inheritance rights?
Non-marital child can automatically inherit from the mother and her family.
Non-marital child inherits from father and his family only if: paternity is established.
How is paternity established for a non-marital child?
- Father marries mother after the child is born,
- An order of filiation entered adjudicating the man to be the child’s father, or
- father files a witnessed or notarized affidavit of paternity in the putative father registry, or
- (before or after father’s death) paternity is established by clear and convincing evidence.
How is paternity established by clear and convincing evidence?
- By a genetic marker testing (DNA), or
- By the man openly and notoriously acknowledging the child as his own.
- “this is my kid”
- participation in school activities, visitation, gifts, etc.
- NOTE: support alone is insufficient to establish clear and convincing evidence of paternity.
