Wills Rules 1

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Wills Rules 1
2010-07-16 14:57:10

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  1. NY intestacy statute
    Per captia at each generation distribution.

    Order of preference:

    • surviving spouse
    • issue
    • parents
    • siblings
    • siblings' issue
    • grandparents
    • grandparents' issue

    • Share:
    • Surviving spouse + no issue = ALL to surviving spouse
    • Surviving spouse + issue = surviving spouse gets $50,000 + 1/2 of remaining net estate.
  2. Surviving spouse
    Spouse: legal marriage only; cohabitation insufficient (unless domestic partners in NYC); putative spouses sufficient (i.e., spouse by estoppel). Will be disqualified if abandoned decedent prior to decedent's death and at time of the death. Will also be disqualified for failure to support. Divorce ends marital relationship, but only when it is final (separation is not divorce, even if there is a separation agreement).

    Surviving: 120 hours. NY places burden of production on party whose claim depends on survivorship, and sets burden of proof at clear and convincing evidence to deter litigation. No survival = property passes as though each individual predeceased the other.
  3. Issue
    Include lineal descendants, but not decendants of living lineal decendents.

    Adopted child may inherit from or through natural parent if:

    • decedent was adopted child's natural grandparent or is a decendant of a natural grandparent AND
    • adoptive parent is (a) married to the child’s natural parent; (b) the child’s natural grandparent; or (c) is a descendant of the child’s natural grandparent.

    • Equitable adoptions (recognized in NY):

    • Foster parent or stepparent is adoptive parent if relationship began during child's minority and continues throughout decedent's life AND clear and convincing evidence shows would have adopted child if not for a legal barrier.
    • Child can inherit from but NOT through equitably adoptive parent.
    • Equitably adoptive parent CANNOT inherit from OR through adopted child
  4. Calculating share to issue (per captia at each generation)
    • Divide property equally among the first generation where at least one member survives the decedent
    • Shares of each member of that generation who does not survive the decedent pass to the then living issue of the non-living member.
    • If the non-living member has no then-living issue, then the non-living member does not receive a share.

    • Example:
    • If A dies, A’s estate is first divided at E’s generation (because there are no surviving members of B’s generation), and then to be distributed among all living members and all non-living members who are survived by issue.
    • Because I is deceased without issue, I does not receive a share, and E, F, G, and H each take one-fourth. At J’s generation, J takes E’s one-fourth share in its entirety, and K and L share G’s one-fourth share.