Wills - INTESTACY Flashcards
What law governs intestacy in NY?
and when?
The EPTL contains the rules of descent and distribution of property (both real and personal) in intestacy, which typically apply when
(1) NO WILL - the Decedent left NO WILL or did not properly execute it
(2) PARTIAL INTESTACY - the Will does not make a COMPLETE Distribution of the estate (typically because of poor drafting by atty) and results in PARTIAL INTESTACY
(3) SUCCESSFUL WILL CHALLENGE - a distributee successfully challenges the will, and the will is denied probate
Order of Priority for Appointment as ADMINISTRATOR
(1) Surviving Spouse
(2) Children
(3) Grandchildren
(4) Parent
(5) Siblings
(6) Any other distributee
(follows our common sense notions)
Decedent Survived by SPOUSE and NO CHILDREN
Distribution Rules
SURVIVING SPOUSE takes the WHOLE ESTATE
e.g. Herman died intestate, survived by wife WINNIE, brother Blake and mother Matilda. Herman never had children. At his death, Herman owned property worth $300k. What is distribution?
ALL $300k to WINNIE (matilda and blake take 0)
Decedent survived by SPOUSE AND CHILDREN
Distribution Rules
Rule: If decedent is survived by SPOUSE AND ISSUE, whether of his current marriage or an earlier marriage
SURVIVING SPOUSE - takes $50,000 plus 1/2 of residuary
THE ISSUE - takes the left over residuary
UNLESS estate happens to be less than $50,000, in which case, WHOLE ESTATE goes TO SURVIVING SPOUSE (policy of wanted spouse to be minimally provided for)
e. g. Herman dies intestate survived by wife Winnie, and two children Abigail and Buffy. Herman had property worth $550,000
- - Winnie gets $50k off the top and 1/2 of the $500k left over - so she gets $300k total
- - Abigail and Buffy get to split the balance of $250k, so each get $125k
note: if Herman had children by a prior marriage, ALL of his children, regardless of which marriage they were born under get to share in the left over residuary equally (as long as it is dead person’s kids they share)
Decedent survived by CHILDREN ONLY
Distribution Rules
IF decedent is survived by children only (and no child has predeceased the decedent) - it passes to the children in equal shares
Decedent survived by CHILDREN and ISSUE OF PREDECEASED CHILDREN
Distribution Rules
NY Rule is that estate passes “BY REPRESENTATION” also called “PER CAPITA AT EACH GENERATION
“BY REPRESENTATION” also called “PER CAPITA AT EACH GENERATION
Distribution Rules
How it works:
go to first generation where there are survivors and divide the estate equally among the number of kids in that generation (whether dead or alive)
-e.g. Bob had 3 kids, 2 of which died before him. When he dies, bc there is still someone alive in that generation, you divide the estate into 3rds (1/3, 1/3/, 1/3 for each “line”). Then take the shares of the dead guys, combine them and drop them down to the next generation, where they are divided equally among all the issue of the deceased guys.
NOTE: ** INLAWS ARE NOT INTESTATE DISTRIBUTEES - they do not take! (so doesn’t matter who the kids were married to)
BOB
- ted (deceased) — bill (alive) — sam (deceased)
- T1, T2 B1, B2 S1
distribution: because Bill is alive (ie this is the first generation where someone is alive) we start the distribution here.
BILL gets his 1/3rd, B1 and B2 get nothing bc their father is still alive.
The 1/3 to Ted, and 1/3 to Sam get combined (so now have just a big 2/3 piece) and drop down to the next level, where it gets distributed evenly among EVERYONE on that level who is still eligible to take (aka B1, and B2 don’t take bc their are already “taken care of” by the fact that their dad took)
So T1, T2 and S1 split the remaining 2/3rds evenly among them (1/3 of 2/3 = 2/9ths each)
Rule for In-laws in intestacy
IN-LAWS ARE NOT INTESTATE DISTRIBUTEES so they do not take.
E.g. Bob has son John, who is married to Kate. If John predeceases Bob, even if John’s will said “i leave everything to my wife Kate” - Kate still does not take in BOB’s intestacy bc this is not passing by John’s will
Decedent NOT SURVIVED BY SPOUSE OR ISSUE
Distribution Rules
Distribution is:
basically go up the line (e.g. grandparents, great grandparents) and down that line until you find someone living
parents alive? no, ok, down the line - are any of decedent’s siblings alive - goes to them
parents dead, grandparents alive? no? ok down the line, are any of decedent’s aunts or uncles alive? if not, cousins?
parents dead, grandparents and all issue dead, go to great parents and their issue
(i) All to parents or surviving parent
(ii) IF not survived by parents, all to ISSUE OF PARENTS (ie siblings and issue of deceased siblings)
(iii) If not survived by PARENT or ISSUE of PARENT
- - (a) 1/2 to maternal grandparents OR surviving grandparent OR (if neither is living) to their children and grandchildren, who take per capita at each generation; AND
- - (b) 1/2 to paternal grandparents OR surviving grandparent OR to their children and grandchildren, who take per capita at each generation
(iv) IF not survived by grandparents of their children and grandchildren on one side: to all grandparents OR their children and grandchildren on the OTHER SIDE
– see p.6 of WILLS handout for review of rest (rarely tested down this far
Per Stirpes Distribution
Distribution Rules
In most states, (and in old NY) the distribution is PER STIRPES, under which the issue of a predeceased child takes the share that the predeceased child would have taken, if alive
NOTE: IN NY, the DEFAULT DISTRIBUTION is per capita at each generation in both intestacy and in a will.
per capita at each generation will apply even if decedent died with a will - e.g. if will says “to the issue of my brother broderick”
PER STIRPES e.g.
Grandpa George leaves $900k “to the issue of my brother Broderick”
Broderick
Archie (living) Brewster (dead) Clyde(dead)
(no kids) G1, G2 C1
distribution at first level is same - Archie is alive so we start distribution at that level - 1/3, 1/3, 1/3
however, instead of combining leftovers and distributing equally among G1, G2, and C1, the kids take and split up share of their parent equally
so G1 and G2 split Brewster’s 1/3 and each gets 1/6th
C1 takes the full 1/3 of his dead dad Clyde
Archie = $300k
G1, G2 = each get $150k
C1 = $300k
(under “per capita at each generation” - G1, G2, and C1 would split the remaining 2/3rds equally, each getting 2/9ths or $200k)
Note: if only one guy died at first generation, per stirpes and per capita result in same distribution
and remember, start at generation where someone is alive, so if Archie had died too, G1, G2 and C1 would each get 1/3rd under both systems as well
Note about “modified per stirpes” on bottom of p.8?
Inheritance Rights of Adopted Children
GENERAL RULE: Adopted Children and their issue have FULL inheritance rights from the ADOPTING family (and vice versa if adopted child were to predecease his/her adoptive parents)
CHILD ADOPTED BY A NEW FAMILY
Rule: The child has no inheritance rights from the BIRTH PARENTS or other members of the BIRTH FAMILY
EXCEPTION: Child adopted by SPOUSE of a Birth Parent - in this case, child and that child’s issue can inherit from BOTH the adopting parent AND EITHER BIRTH PARENT
—-e.g. Diana died and Charles married Camilla. Assume Camilla adopted William and Harry (children of Diana and Charles) – William Harry and their issue would have inheritance rights from Charles (birth father), Camilla (adoptive mother), and family of Diana (deceased birth mother)
Note: this is a “One-Way Street” - if William predeceased Diana’s father can’t inherit from him
SPECIAL RULE: Child Adopted by A RELATIVE (e.g. aunt or uncle): If the adopted child is related to the decedent by both a birth relationship AND an adopted relationship, the child inherits under the BIRTH RELATIONSHIP …UNLESS the decedent was the adopting parent, then the child inherits under the ADOPTIVE RELATIONSHIP
so adoptive kid gets best of both worlds - if his “new parent” dies, he takes under that as if he were a kid, but if someone else dies, he takes as though he were a kid his original parent
see e.g. p.10
NONMARITAL CHILDREN
GENERAL RULE: A NonMarital chld has FULL inheritance rights from the mother and the mother’s family
However, a nonmarital child inherits from the BIRTH FATHER, ONLY IF Paternity is established by 1 of the following 4 tests:
[First 3 are “during 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 paternity suit is entered adjudicating the man to be the child’s father; OR
(3) The father files a witnessed and acknowledged (before a notary public) affidavit of paternity with the Putative Father Registry; OR
[Before OR After the Father’s death (in probate)
(4) Paternity is established by CLEAR AND CONVINCING EVIDENCE which may include, but is not limited to evidence established by:
(i) DNA genetic marker test
(ii) “openly and notoriously” acknowledged the child as his own such as saying “this is my kid”. putting kid on birth certificate, participating in school activities, visitation, gifts
HOWEVER, SUPPORT, by itself, is not enough
Under what circumstances is SPOUSE DISQUALIFIED from taking intestate share?
Circumstances under which Spouse is Disqualified from taking intestate share
DISMAL
D - DIVORCE: a FINAL DECREE of divorce or annulment recognized as valid under NY law
I - INVALID DIVORCE: The SURVIVING SPOUSE procured a divorce of annulment NOT recognized as valid under NY law
—-but NOTE: the surviving spouse is NOT disqualified if the DECEASED spouse procured the invalid divorce or annulment (ie surviving spouse must be the “bad” spouse)
S - SEPARATION DECREE: A Final DECREE of separation was rendered against the surviving spouse. The separation AGREEMENT does NOT result in disqualification UNLESS there is specific language in the agreement waiving the surviving spouse’s rights under the EPTL
– NOTE: surviving spouse is NOT DISQUALIFIED if the final decree of separation was rendered against the DECEASED spouse (again, surviving spouse must be bad)
M - MARRIAGE IS VOID - An incestuous or bigamous (or fraudulent) marriage
AL - ABANDONMENT OR LACK OF SUPPORT - The surviving spouse abandoned or refused to support the deceased spouse
–Note: once again, surviving spouse is not disqualified if the DECEASED spouse abandoned or refused to support the deceased spouse
RULE: If have a DISMAL situation, treat the surviving spouse as having PRE-DECEASED and we drop their share down to their kids, or whoever is next in line
Note: if you KILL YOUR SPOUSE UNJUSTIFIABLY, you cannot inherit from him - in NY, they will impose a “constructive trust”
—–minor point: but, there is NY statute that says if have JOINT PROPERTY and unjustifiably kill spouse, it severs the joint tenancy and killer gets to keep what he/she contributed to it
ADVANCEMENTS
Advancements come up in context of a lifetime gifts to intestate distributees
At COMMON LAW: a lifetime gift to a child was PRESUMPTIVELY an advancement (ie an advance payment) of his intestate share, to be taken into account when distributing the estate at death (based on presumption that a parent would always want to treat his children equally
***NY RULE: NY has rejected the “advancement” presumption by statute
Thus, there is NO ADVANCEMENT UNLESS proven by:
(i) contemporaneous writing made at the time of the gift, AND
(ii) it is SIGNED by the DONOR or the DONEE
e. g. p.13 - Fred gave son andrew 10 acres of land (worth $30k). 2 weeks later, sent Andrew signed writing saying it is meant to be an advancement - no good, not treated as advancement bc wasn’t CONTEMPORANEOUS writing - andrew took 1/3 of $300k estate (along with Fred’s other 2 kids) without taking into account land he had already taken
e. g. 2 - if writing had been signed and contemporaneous - the $30k to andrew would be taken into account. So would take $300k left for probate, add the $30k that Andrew has already gotten. So each kid should get 1/3 of a $330k estate (or $110k), but andrew has already received $30k, so he gets $80 of the $300k left over, and each other sibling gets $110k of the $220 left over.
DISCLAIMER (“Renunciation”) By Intestate Distributee
What is it, and how do you make a VALID DISCLAIMER?
If, for some reason, a distributee does not want to take property by operation of law, he can DISCLAIM (or “renounce”) his interest in decedent’s estate in whole or in part.
(why would you disclaim? avoid taxes, avoid creditor claims maybe)
RULE: effect of DISCLAIMER is that person who disclaims is treated as having pre-deceased the decedent
A VALID DISCLAIMER MUST BE:
(i) IN WRINTING, signed and acknowledged (before a notary public); AND
(ii) accompanied by a separate affidavit stating that no consideration was received for disclaiming (UNLESS the surrogate court authorizes receipt of consideration for the disclaimer); AND
(iii) IRREVOCABLE; AND
(iv) Filed with the Surrogate’s Court within 9 months after the date of death
**BUT NOTE: if result of disclaimer is to change intestate shares so that someone i getting less than they otherwise would have gotten, we treat the disclaiming person as having pre-deceased 1 day AFTER decedent dies - to avoid this INEQUITABLE RESULT
e.g. Dylan dies leaving Amber (who has 2 kids G1, G2) and Betsy (1 kid, B1). If Amber disclaims, Betsy gets 1/2, and G1, G2 split the other 1/2 (each getting 1/4) - no problem here
BUT - if Betsy died before Dylan, and THEN Amber disclaims, B1, who would have gotten 1/2 (his mother Betsy’s share), now only gets 1/3rd - this is a problem so we pretend Amber pre-deceased one day later. In that case, 1/2 goes to Betsy, 1/2 goes to Amber, THEN we kill off Amber, and her kids split her 1/2 share.
**SPECIFICALLY CANNOT DISCLAIM TO AFFECT MEDICAID OR MEDICARE eligibiltiy
The following parties can disclaim:
(i) will beneficiaries
(ii) beneficiaries of life insurance, employee benefit plans, trusts, or other non-testamentary transfers;
(iii) surviving joint tenant or tenant by entirety (to extent the decedent furnished consideration for the tenancy’s acquisition); and
(iv) the decedent’s guardian, the holder of a durable power of atty, or a decedent’s personal representative on the decedent’s behalf, with court aproval
