Intestacy Rules

Question 1

What is the body of law governing NY wills?

Answer 1

Estates Powers and Trust Law (EPTL)

Question 2

What is a residuary?

Answer 2

The balance of the decedent’s estate after all claims, taxes and particular bequests have been distributed i..e. The “rest” of the estate

Question 3

When do the the rules of intestacy apply under the EPTL?

Answer 3

They apply when… 1) Decedent left no will OR did not properly execute it; 2) The Will does not make a COMPLETE distribution of the estate (b/c of poor drafting), resulting in partial intestacy; OR 3) A distributee successfully challenges the Will, and the Will is DENIED probate

Question 4

What is the order of priority for appointment as adminsitrator (in intestacy)?

Answer 4

Administrator will distribute property in this order… 1. Surviving SPOUSE; 2. CHILDREN; 3. GRANDCHILDREN; 4. FATHER or MOTHER; 5. BROTHER or SISTER; 6. Any other DISTRIBUTEES

Question 5

What is the rule when a decedent is survived by a spouse and NO children?

Answer 5

The surviving spouse takes the WHOLE estate

Question 6

What is the rule when the decedent is ONLY survived by his children?

Answer 6

If NO child has predeceased the decedent, the estate passes to the children in EQUAL shares

Question 7

What is the rule when a decedent is survived by a spouse AND children (his issue)?

Answer 7

1) The surviving spouse: takes $50k + 1/2 of the RESIDUARY 2) The issue (from ALL marriages, if applicable): takes the left over residuary divided EQUALLY, UNLESS the estate is worth issue would then take NOTHING (i.e. everything goes to surviving spouse)

Question 8

What is the rule when the decedent is survived by his children AND issue of PREDECEASED children?

Answer 8

The estate passes to(i)the LIVING children;AND(ii) the issue of the deceased children “by representation” (i.e. Per Capita Distribution)

Question 9

How does property pass “by representation” (or per capita distribution)?

Answer 9

This is the DEFAULT distribution in NY for BOTH intestacy AND will ———– STEP 1: The property is divided into AS MANY SHARES as there are issue (dead or alive) at the first generation level WHERE THERE ARE survivors STEP 2: All LIVING issue at the FIRST generational level take one share EACH STEP 3: The shares of the DECEASED issue (only) at the FIRST generational level are COMBINED and divided EQUALLY among THEIR issue at the NEXT generational level NOTE: the issue of the children who TOOK a share DO NOT get a distribution at this 2d level

NOTE: SPOUSES of issue do not get ANYTHING (not an intestate distributee)

Question 10

What is the rule if the decedent is survived by NEITHER a spouse NOR an issue?

Answer 10

If no spouse or issue, the distribution is…. **1) to the SURVIVING PARENT(S) (If not survived by parents) ↓ **2) to the ISSUE of the PARENTS (i.e. siblings), who take per capita at each generation (If not survived by issue of parents) ↓ 3) 1/2 to MATERNAL GRANDPARENT(S) (OR their issue, who take per capita at each generation) PLUS1/2 to PATERNAL GRANDPARENTS (OR their issue, who take per capita at each generation) NOTE: if one side (maternal or paternal) is wiped out, 100% goes to OTHER SIDE (OR their issue, who take per capita at each generation)

		NOTE: if only GRANDCHILDREN left on either side, then they take in EQUAL shares

(If not survived by grandparents OR their issue)	↓	4) If the nearest kin are GREAT GREAT GRANDCHILDREN OF THE GRANDPARENTS (i.e. no great grandchildren), the estate revearts back to NY State

Question 11

How does property pass by “per stirpes” distribution?

Answer 11

It’s where the issue of a PREDECEASED child takes the share that the predeceased child would have taken In NY, the DEFAULT rule is “per capita” distribution for predeceased children for BOTH intestacy AND will

		NOTE: a will can OVERRIDE and change the default distribution ("per capita") to "per stirpes"

		FUN FACT: "Per capita" distribution results in the SAME distribution as "per stirpes" if there is ONLY ONE person in the first generation that PREDECEASED the decedant

Question 12

What are the inheritance rights of ADOPTED children?

Answer 12

When adopted by… NEW family→adopted child AND his issue have FULL inheritance rights from the ADOPTING family (AND vice versa) NOTE: The adopted child has NO inheritance rights from the BIRTH PARENTS or other members of the BIRTH FAMILY

SPOUSE of birth parent → the child AND that child's issue can inhereit from (i) the adopting PARENT; (ii) the BIRTH parent; AND (iii) the DECEASED parent's family			NOTE: if child dies, the non-custodial parent's family CANNOT inherit (i.e. ONE WAY STREET)

RELATIVE→ the child inherits under the BIRTH relationship ONLY (i.e. that line is not "extinguished"), UNLESS the decedent was the adopting parent, then the child inherits under the ADOPTIVE relationship	EXAMPLE			If the decedent is Grandpa Gaylord; Caleb Sr. has predeceased Grandpa; AND Caleb Jr. were adopted by Aaron→ Caleb would inherit under Caleb Sr.'s "line" (thus there are 3, NOT 2 shares at FIRST generation)

		However, if the decedent is AARON →Caleb Jr would inherit under Aaron's "line" NOT Caleb Sr's (thus Aaron's estate ould be split 3 ways, NOT 2)

↓

Question 13

What are the inheritance rights of non-marital children?

Answer 13

Depends on whether decedent is MOTHER or FATHER… From MOTHER: a nonmarital child has FULL inheritance rights from his MOTHER and his MOTHER’S family From FATHER: inheritance ONLY IF paternity is established by… DURING “FATHER’S” LIFE 1) The father marries the MOTHER after the child’s birth (i.e. “legitimation by marriage”); OR 2) An order of filiation in a paternity suit is entered adjudicating the 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 and convincing evidence A DNA genetic marker test

		Open & notoriously acknowledging child as his own (e.g. name on birth certificate)

		Visitation, participation, gifts to child (NOT child support alone)

Question 14

What 6circumstances DISQUALIFY a surviving spouse from taking an intestate share?

Answer 14

D-I-S-M-AL-S 1) Divorce: a final DECREE of divorce or annulment recognized as valid under NY law 2) Invalid divorce: procured by SURVIVING spouse 3) Separation decree: a final DECREE of separation was rendered against the SURVIVING spouse NOTE: a separation AGMT does NOT result in disqualification UNLESS there is specific language in the agmt waiving the surviving spouse’s right under EPTL

4) Marriage is VOID (incestuous; bigamoous; fraud)	5) Abandonment/Lack of support: the SURVIVING spouse abandoned or refused to support the dead spouse	6) Slayer spouse:if the spouse KILLS the decedent, then she CANNOT inherit 			NOTE: If there was a joint tenancy, the bad surviving spouse could ONLY get what she put in

Question 15

What is the rule when the decedent is survived by a DISQUALIFIED spouse?

Answer 15

Rule = we assume the SURVIVING spouse PREDECEASED the decedent→we then drop their share to the children, etc

Question 16

What is the rule for an “advancement” in NY?

Answer 16

Advancement → at common law, an inter vivos (lifetime) gift was PRESUMPTIVELY an advance pmt of a distributee’s share This rule hase been REJECTED by statute in NY In NY, there is NO advancement UNLESS proven by… 1) a CONTEMPORANEOUS writing made at the time of the gift; AND 2) the writing is SIGNED by the DONOR or DONEE ↓ If there IS a VALID advancement: (i) the advanced property is ADDED with the rest of the decedent’s estate; (ii) that total is then DIVIDED by the number of sharing distributees; AND (iii) the share for distribute w/ the advancement is REDUCED by the value of the advancement NOTE: if advancement is larger than intestate share, she DOES NOT have to return the difference

SIDENOTE: NY's advancement statute ALSO applies to inter vivos gifts to beneficiaries under a WILL (i.e. "Satisfaction of Legacies")	

Question 17

What is the rule when a distributee disclaims property in intestacy?

Answer 17

The interest in the decedent’s estate can be renounced in whole or in part ↓ Rule: the person who disclaims is considered to have PREDECEASED the decedent The interest THEN drops to the disclaiming distributee’s issue

		NOTE: if this RULE, wrt per capita distribution, would cause the distribution to "skip" a generation (where the distributees would share equally), THEN it is IGNORED (i.e. we assume the disclaiming distributee dies ONE DAY later than the decedent)

Question 18

What 4 steps must a distributee take to properly “disclaim”?

Answer 18

A valid disclaimer must be: 1) In a SIGNED and ACKNOWELDGED (notary public) WRITING; 2) Accompanied by an AFFIDAVIT stating no consideration was received for disclaiming; 3) Must be IRREVOCABLE; AND 4) Filed with the Surrogate’s Ct w/in 9 MONTHS after date of death NOTE: distributee cannot disclaim to (i) avoid a FEDERAL TAX lien; OR (ii) remain eligible for Medicaid/Medicare