Intestacy Rules

Question 1

When are intestacy rules applied?

Answer 1

1. Decedent left no will or did not properly execute it;
2. The will does not make a complete distribution of the estate (typically because there was poor drafting by the attorney) and results in partial intestacy OR
3. A distributee successfully challenges the will, and the will is denied probate.

Question 2

What is the order of priority for appointment as administrator?

Answer 2

1. Surviving spouse;
2. Children;
3. Grandchildren;
4. Parent;
5. Siblings;
6. Any other distributee.

Question 3

How is the estate distributed if the decedent is survived by the spouse and no children?

Answer 3

If the decedent is survived by her spouse, but not by any children or issue of children, the surviving spouse takes the whole estate.

Question 4

How is the estate distributed if the decedent is survived by his spouse and issue?

Answer 4

The surviving spouse takes $50,000 and 1/2 the residuary. The issue take left over residuary divided evenly. If the estate happens to be less than $50,000, then whole estate goes to surviving spouse.

Question 5

How is the estate distributed if the decedent is survived by children only?

Answer 5

The estate passes to the children in equal shares.

Question 6

How is the estate distributed if the decedent is survived by children and issue of predeceased children?

Answer 6

The estate passes to the alive children and the issue of the dead children by representation or per capita at each generation. In other words:

1. The property is divided into as many shares as there are issue at the first generational level at which there are survivors.
2. The shares of the deceased issue at the first generational level are combined and then divided equally among the takers at the next generational level in the same way.

Rule of Thumb: Issue in the same generation will always have equal shares.

Question 7

How is the estate distributed if the decedent is not survived by spouse or issue?

Answer 7

The distribution is:

a. All to parents or surviving parent.
b. If not survived by parents: all to issue of parents (i.e. siblings and issue of deceased siblings), who take per capita at each generation.

Question 8

What does “per stirpes” distribution mean?

Answer 8

This means that the issue of a predeceased child taks the share that the predeceased child would have taken, if alive.

However, in NY, the default distribution is per capita at each generation in both intestacy and in a Will. But a will can override and change the default distribtion to “per stirpes.”

Question 9

What are rules of intestate distribution for adopted children?

Answer 9

Adopted children and issue have full inheritance from their adopted families and vice versa.

Child adopted by a new family has no inheritance rights from birth parents or birth family EXCEPT child adopted by the spouse of a birth parent, then the child can inherit from both adopted and birth families.

If a child is adopted by a relative, the child inherits under the birth relationship UNLESS the decedent was the adopting parent, then the child inherits under the adoptive relationship.

Question 10

What are the rules of inheritance for non-marital children?

Answer 10

Generally, a non-marital child has full inheritance rights from the mother and the mother’s family. However, a non-marital child inherits from the birth father only if paternity is established by one of the following 4 tests:

During the father’s life:

1. the father marries the mother after the child’s birth (“legitimation by marriage”); OR
2. An order of filiation in a parternity suit is entered adjudicating the man to be the child’s father; OR
3. The father files a witnessed and acknowledged affidavit of paternity with the Putative Father Registry; OR

Before or after the father’s death:

4. Paternity is established by clear and convincing evidence.

Question 11

What circumstances will disqualify a spouse from taking intestate share? What happens to their share?

Answer 11

Think DISMAL:

Divorce: a final decree of divorce or annulment recognized as valid under NY law.

Invalid divorce: the survivng spouse procured a divorce or annulment not recognized as valid under New York law.

Separation decree: a final decree of separation was rendered against the surviving spouse. A separation agreement does not result in disqualfication, unless there is specific language in the agreement waiving surviving spouse’s rights.

Marriage is void: incestuous or bigamous

Abandonment or Lack of support: The surviving spouse abandoned or refused to support the deceased spouse.

When this happens, you assume the surviving spouse predeceased and we drop shares to the kids or whoever is next in line.

Question 12

How are lifetime gifts to an intestate distributee treated?

Answer 12

At common law, a lifetime gift to a child was preumptively an advancement of his intestate share, to be taken into account when distributing the estate at death. However, NY has rejected this and says that there is no advancement uness proven by:

i. a contemporaneous writing made at the time of the gift; AND
ii. is signed by donor or donee.

Question 13

What happens when there is a disclaimer or renunciation by intestate distributee?

Answer 13

Person who disclaims, is considered to have predeceased the decedent.

Question 14

What is required of a valid disclaimer?

Answer 14

A valid disclaimer must be:

1. in writing, signed and acknowledged (before a notary public); AND
2. accompanied by a separate affidavit stating that no consideration was received for disclaiming (unless the Surrogate’s Court authorizes receipt of consideration for the disclaimer); AND
3. Irrevocable; AND
4. Filed with the Surrogate’s Court within 9 months after the date of death.