Intestate descent and distribution Flashcards
When do descent and distribution rules apply? 3 situations
- NO WILL
- The will is DENIED PROBATE (not properly executed or is successfully contested), or
- The will does not make a COMPLETE DISPOSITION of the state
If the intestate is survived by spouse, what happens if: 1. They have children? Or 2. No children?
- If there are children, the spouse takes $50,000 plus half of the balance. The remaining half passes to the children or their issue per capita.
- If there are no children, the spouse takes the entire estate.
In the absence of a will, explain how issue take per capita in each generation.
Any share of the estate that would go to children goes to the children’s issue per capita. So, if a grandfather dies, and he had 2 children, but one of his 2 children died, half of his estate would go to the living child and half of his estate would be divided evenly among the issue of his deceased child (the grandchildren).
If someone dies without a spouse or children, to whom does the estate go in what order?
1st, to parents or surviving parent, if they’re around.
2nd to brothers and sisters or their issue, if they’re around.
3rd one half to each set of grandparents or their issue.
What an inheritance rights of adopted children, stepchildren or foster children, nonmarital children, and posthumous children?
- Adopted children are treated as if a child by birth.
- Stepchildren or foster children have no inheritance rights.
- Nonmarital children have full inheritance rights, provided paternity is established.
- Posthumous children are treated as full children and receive their share.
You must survive the deceased by at least how much to receive title to property under the deceased’s will? E.g., 2 people in a car accident, A dies then B dies, and A left his estate to B: how long does B have to outlive A in order for B’s estate to collect?
Clear and convincing evidence of 120 hours, otherwise you are deemed to have predeceased the decedent
May a killer inherit?
Generally, no, but if he is found not guilty by reason of insanity, he may take.
How do you disclaim (renounce) and intestate share, gift, or transfer?
A beneficiary may renounce or disclaim an interest by writing, signed, and acknowledged before a notary public. Upon disclaimer, the state treats it as though the disclaiming party died seconds after the decedent, meaning it may pass to the disclaiming party’s issue if necessary for per capita at each generation distribution. If there is no generational descendency, the state treats it as though the recipient predeceased the decedent.
Does New York law to recognize tortious interference with inheritance?
No, tortious interference with inheritance is not a cause of action recognized in New York. Instead, the proper recourse is a constructive trust.
Statute acronym for NY intestacy law?
EPTL = Estates Powers and Trusts Law.
difference b/t “kids” and “issue”?
Issue = straight line descendants, not just kids.
math and diagrams for essays?
Walk through the math slowly. You get points for each step.
Make family trees.
difference between per stirpes and per capita?
per capita, when kids predecease parents, you recombine assets at that level after distribution to living kids, and distribute evenly at next generational level.
Per stirpes is different: would give each kid his parent’s share divided among parent’s kid
is default in NY per capita or per stirpes?
per capita, but can be overruled by the will saying per stirpes
can adopted kids inherit from its biological parents?
generally, no. They can inherit from biological family if they’re adopted by spouse of biological parent. This is a one-way street though, meaning that the adoptive parents cannot inherit from adopted child in the case where adopting parent is a spouse of the biological parent.
