Intestacy Rules Flashcards
Intestate
When a person dies w/o a will.
Decedent
A person who dies w/o a will.
Distributee
- person who inherits property under intestate succession
- sometimes known as heir or next of kin
- Issue
- all persons who have descended from a common ancestor, including those in direct line of inheritance w/ the decedent
- sometimes known as descendant
Administration Proceeding
a proceeding initiated by a distributee to appoint an administrator and administer the property of the decedent.
Intestate Property
assets held in the decedent’s name alone that DO NOT pass by operation of law or by will and which the administrator administers in accordance with the EPTL
Passing by operation of law
property that passes automatically b/c of the way the property’s title is held, REGARDLESS of the existence of a will or intestacy
When do you apply the intestacy rules?
- no will
- will doesnt make a complete distribution of the estate –> partial intestacy
- a distributee successfully challenged the will and the will is denied probate
Order of priority for appointment as ADMINISTRATOR
- surviving spouse
- children
- grandchildren
- parent
- siblings
- any other distributee
Distribution: Decedent survived by spouse & no children or issue of children
Surviving spouse takes the whole estate
Decedent survived by spouse and issue
- Surviving spouse takes $50,000 + 1/2 (estate- 50,000)
- Issue take 1/2 residuary [aka 1/2 x (estate - 50,000]
- IF ESTATE IS LESS THAN $50,000 –> SPOUSE TAKES ALL
Decedent survived by children (and no child has predeceased)
Children take equal shares
Decedent survived by children and issue of predeceased children
Estate goes to the alive children AND the issue of the dead children take by representation, which in NY is called PER CAPITA AT EACH GENERATION
Process- property is divided into as many shares as there are issue at the first generational level at which there are survivors
- all living issue at the first generational level take one share each
- shares of deceased issue at the first generational level are pooled and then divided equally at the next generational level
(issue in the same generation will always have equal shares)
Distribution: Decedent not survived by spouse or issue
1- all to surviving parents
2- if no surviving parents, all to issue of parents (siblings and issue of deceased siblings per capita at each generation)
3- no parents and no issue of parents:
- 1/2 to maternal grandparents OR surviving maternal grandparent OR (if neither is living) to their children and grandchildren (aka aunts and first cousins); AND
- 1/2 to paternal grandparents OR surviving paternal grandparent OR (if neither is living) to their children and grandchildren (aka aunts and first cousins)
Majority Rule in USA = Per Stirpes
NOTE: NY default is per capita at each generation in both intestacy and in will. However you can K around this and demand per stirpes in your will.
- start process at the first generation w/ someone alive
- Issue of a predeceased child in the first generation with a living child `take the exact share that the predeceased child would have taken. There is no pooling before the drop down.
Inheritance Rights of Adopted Children:
- General Rules
- Exception
GENERAL RULES
- adopted children and their issue have full inheritance rights from the ADOPTING FAMILY (and vice versa if the adopted child dies 1st)
- adopted children have NO inheritance rights from the birth parents OR other members of the birth parent
EXCEPTION
- a child adopted by the spouse of a birth parent (step-parent) can inherit from both the adopting parent and BOTH birth parents/their family
Special inheritance rule when a child is adopted by a relative.
If the adopted child is RELATED TO THE DECEDENT BY BOTH A BIRTH RELATIONSHIP AND AN ADOPTED RELATIONSHIP, the child inherits the birth relationship UNLESS the decedent was the adopting parent, in which case the child inherits the adoptive relationship.
Inheritance Rights of Nonmarital Children:
- General Rule
A nonmarital child has fill inheritance rights from the mother & her family.
When does a nonmarital child inherit from and through the birth father?
Only if paternity is established by one of the following 4 tests–
DURING FATHER’S LIFE:
(1) Father marries the mother after the child’s birth [“legitimation by marriage”]; OR
(2) An order of filiation in a paternity suit is entered adjudicating the man to be the child’s father; OR
(3) The father files a witnessed and acknowledged (before a notary public) affidavit of paternity w/ the Putative Father Registry; OR
BEFORE OR AFTER THE FATHER’s DEATH:
(4) Paternity is established by CLEAR & CONVINCING EVIDENCE, which may include but is not limited to evidence established by (i) a DNA test; or (ii) opening and notoriously acknowledging the child as his own
NOTE:
- you need probable cause/strong evidence to start exhuming bodies for DNA tests
- providing support, by itself, is not enough to est. CCE
Circumstances that Disqualify Spouse From Taking Intestate Share
HINT- DISMAL
D- Divorce- a final decree of divorce or annulment recognized as valid under NY law
I- Invalid divorce- the SURVIVING SPOUSE procured a divorce or annulment not recognized as valid under NY law [if deceased got the invalid divorce than surviving spouse takes]
S- Separation DECREE - final decree of separation was rendered against the surviving spouse. A separation AGREEMENT does not result in disqualification UNLESS there is specific language in the agreement waiving the surviving spouse’s rights under the EPTL
M- Marriage is VOID- insestuous, bigamous
A- Abandonment of deceased spouse by surviving spouse
L- Lack of support- surviving spouse refused to support the deceased spouse
What happens if a surviving spouse is disqualified from taking in intestacy?
Act as if the surviving spouse predeceased the decedent and distribute according to intestacy rules for when there is not surviving spouse
What happens if the surviving spouse killed the deceased spouse?
- If you unjustifiably kill someone you cannot inherit from them.
- NY doesn’t have a “no slayer statute” but will create a CONSTRUCTIVE TRUST to make sure a
murderous spouse doesn’t collect. - if you have joint property and one spouse kills the other, you sever the tenancy
ADVANCEMENTS (aka Lifetime Gifts to Intestate Distributees)
- common law rule
- NY rule
CL- A lifetime gift to a child was presumptively an advancement (i.e., an advance payment) of his intestate share, to be taken into account (subtracted) when distributing the estate at death.
NY- rejects the advancement presumption by statute; There is NO advancement UNLESS proved by: (1) CONTEMPORANEOUS writing made at the time of the gift; and (2) SIGNED by the donor OR the donee
Disclaimer (“Renunciation”) by Intestate Distributee:
- what is the effect?
- requirements for it to be valid? (6)
The person who disclaims is considered to have pre-deceased the decedent UNLESS to do so would create an inequitable result at the next generational level, in which case we act as if the disclaimer died one day after the decedent.
A valid disclaimer must be:
1- in writing
2- signed
3- acknowledged before a notary public;
4- accompanied by an affidavit stating that no consideration was received for disclaiming (UNLESS surrogates court authorizes receipt of consideration);
5- irrevocable; AND
6- filed w/ the Surrogate’s Court w/in 9 months after the date of death
Disclaimer/Renunciation:
- why would anyone want to disclaim an inheritance?
- Who can disclaim?
WHY?
- avoid taxes
- avoid creditors claims
- BUT CANNOT disclaim to effect medicaid or medicare
WHO?
- intestate beneficiaries
- will beneficiaries;
- beneficiaries of life insurance, employee benefit plans, trusts, or other non-testamentary transfers
- surviving joint tenant or tenant by entirety
- a decedent’s guardian, holder of power of attorney, or personal rep can distain on the decedent’s behalf
