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.
