intestate distribution and bars to succession Flashcards
Administrator - defined
personal representative appointed to oversee the distribution of an intestate estate
intestate takers in NY are called
distributees
persons eligible to be an administrator -
order of priority highest to lowest
1 surviving spouse children grandchildren parents brothers and sisters
bars to succession - list
survival
disinheritance
slaying decedent
disclaimer
Survival - defined
NY adopted Revised Uniform Simultaneous Death Act
if no Clear and Convincing Evidence one person survived the other by
120 hours (5 days)
property of each is distributed as if they predeceased each other
Parties deemed to have died simultaneously as a matter of law
property will be divided into as many shares as there are alternate benificiaries
Rule of survival applies to
all distributions of property by will intestacy joint tenancy life insurance unless governing instrument provides otherwise
Disinheritance - Negative
heir specifically disinherited by will
barred from taking an intestate share
treated as if he predeceased decedent
Slaying Decedent
intentional felonious killing
barred from taking intestate share
devisee is a slayer
not barred if slayer was insane, negligent, or justifiable
conviction of intentional and felonious killing is conclusive for probate
How will probate court determine whether there was intentional and felonious killing
who bears burden of proving
absent conviction probate court can make its own determination
slayer statute applies if proven by a preponderance of the evidence
burden is on party seeking to prove killing was intentional and felonious
Disclaim
heir can disclaim any intestate share or bequest in a will
how to disclaim
in writing
signed by person renouncing inheritance
notarized
filed with court within 9 months of death
must file affidavit that no consideration was received for renunciation
cannot be made if received any interest in the estate
Minor or incompetent disclaiming share
must be approved by a court
Effect of disclaimer
once made disclaimer relates back to time interest was created
treated as if never owned
cannot be reached by creditors
individuals can disclaim to avoid taxes and creditors and
for any non-fraudulent reasons
Who may not disclaim an inheritance
beneficiary of state supported government program
cannot renounce without affecting eligibility for assistance
if disclaimant’s heirs will receive a larger share as a result, they will not be allowed to do so.
