Ilene Cooper
Trusts & Estates
Spring 2012
Death of the Decedent
Family Relationships:
· Ancestor: A person related to a decedent in the ascending or upward lineal line. i.e. mother, father, paternal grandparents, maternal grandparents.
· Lineal Ascendant: A person related to a decedent in a direct line upward from the decedent. i.e. a mother, father, grandmother, grandfather
· Descendant: a person related to the descent in the descending lineal line. i.e. child, grandparent, a great-grandchild.
· Collateral Heirs: Relatives who trace their relationship through a common ancestor but who are not in lineal line of descent or ascent. i.e. cousin, uncle, aunt, sister (related through a common ancestor that is mother & father)
DEFINITIONS à SCPA 103 & EPTL 1.2
1. EPTL 1-2.7 àFiduciary: A person in whom one reposes trust and confidence.
§ Every fiduciary relationship is a confidential relationships that exist as a matter of law and fact
§ Fiduciary relationships as a “matter of law” are by their very nature confidential. i.e. attorney/client, physician/patient, priest/ parishioner.
§ Fiduciary relationships as a “matter of fact” when factual circumstances surrounding the relationship btwn the parties will determine whether it rises to the level of a confidential relationship. i.e. parent/child.
§ Evidence of a Fiduciary authority is derived through letters
· Letters Testamentary are issued to an Executor
· Letters of Administration are issued to an Administrator
§ Examples of Fiduciaries:
o Executor: A fiduciary named in a Will to administer an estate
o Administrator: A person appointed to administer the estate of a decedent who dies w/out a will
o Trustee
o Guardian SCPA 103(24) à Person appointed for the benefit of an infant, a mentally retarded person, and developmentally disabled persons.
o Guardian ad litem à Represent the interest of the infant
§ An attorney appointed by the court to protect the interest of a person operating under a disability.
§ SCPA 103(40) à Disability is a term of art
· SCPA 103(3) à If a named executor fails to qualify or when the office of executor becomes vacant (i.e. Executor dies or resigns) the court appoints an administrator C.T.A. – any person to whom letter of administration with the will annexed have been issued.
· SCPA 103(4) à When the office of administrator becomes vacant the court may appoint a successor administrator to complete the administration of the decedent’s estate known as an administer D.B.N. – any person to whom letters of administration have been issued as a successor to an administrator.
2. Testacy: passage of property in the case where someone dies w/ a will.
3. Issue EPTL 1-2.10 à A descendent in any degree from a common ancestor (child, grandchild, great grandchild of the decedent is all issue of the decedent, the decedent being the common ancestor).
Inheritance
Spouse, Natural Children, Adoptive children, Posthumous children, Non-Cupative
· Why is status relevant to a probate proceeding?
o Must have jurisdiction over Distributee’s in a probate proceeding.
o If you do not know who distributee’s are the probate will be incomplete.
o Distributee’s are entitled to inheritable pursuant to the laws of decent and distribution
§ Inheritance by 1st cousins once removed is allowed in NY only where the decedent is survived by great grandchildren of grandparents & no one else.
EPTL 4-1.1(a)(7) à 1st cousins once removed will inherit per capital and not by representation.
No inheritance in NY beyond 1st cousins once removed
o Where does the property go? The estate of New York
· New York Law effected after Sept 1, 1992: if a decedent draws a Will or Trust after September 1, 1992 & says distribution of his estate is to pass to his issue w/out any qualifying language, the estate will pass by Representation
o Representation is the default
§ If the default says he leaves the residue of his estate to my issue. – it will pass to issue by representation pursuant to EPTL 2-1.2
o If it estate specifies that the residue will passes per stripes the property will pass per stripes to the issue.
The Passage of Property by Intestacy: Per Stirpes, By Representations, Per Capita:
§ Intestacy: Passage of property in the case where someone dies w/out a will.
§ EPTL 4-1.1 àDie w/ NO WILL the state tells you how property will pass if no will
· Estate is disturbed through laws of intestacy
· Fiduciary of estate (i.e. the administrator) is appointed by the state statute.
If Decedent Died Intestate, Survived by Issue only:
§ 1992 Legislation: Applies only in those cases in which the decedent died on or after September 1, 1992.
o Death Prior to September 1, 1992 à Per Stirpes or Per Capita
o Death After September 1, 1992 à By Representation or Per Capita
§ EPTL 1-2.14 Per Stirpes à Passage of property to issue of a deceased ancestor such that the property is divided into as many equal shares as there are surviving issue in the generation nearest to the deceased ancestor and deceased issue in such generation that leave issue. Each surviving issue in the nearest generation takes 1 share and the issue of any predeceased issue in such nearest generation takes and divides such issues shared.
o TODAY most estate are distributed Per Stirpes
· EPTL 1-2.11 Per Capita à The passage of property such that the estate is only given to those surviving members of the generation closest to the decedent.
o There is NO inheritance to an ancestor
· EPTL 1-2.16 By Represenationà The way property passes through a will if there is no contrary representation.
o Every estate where a person dies w/out a Will passes by Representation
o Combine & divide equally at the next level
COMMON LAW MARRIAGE
· Not evidenced by a marriage license but is one that is solemnized by the act and/or words of the parties.
o Requirements: Direct proof of a written contract of the parties or through the testimony of witnesses who were present when the words of marriage were exchanged or by indirect proof of the cohabitation and reputation of the parities.
o Elements of a Common Law Marriage:
(1) Agreement to Marry: Consent & Legal Capacity is essential to enter a valid marriage contract.
The agreement to marry must represent a present understanding btwn the parties.
An agreement to marry at a future time will NOT be sufficient to establish a common law marriage.
(2) Reputation: Holding themselves out to the world has husband & wife
(3) Cohabitation: The parties lived together
PA abolished CL marriage in 2005
§ Where words of marriage are exchanged in front of witnesses & the parties cohabited together (regardless of the amt of time), the court can potentially find a CL marriage
· Common Law Marriage not valid in NY.
o However, NY will recognize a common law marriage validly contracted in a sister state
§ Common law marriage is limited to only heterosexual couples; however, New York will recognize a same sex marriage validly contracted in a sister state
§ Common Law spouse have right to:
· Elective share
· Social security & death benefits
· Rights to the custody of child
Distributee
§ A person entitled to take or share in the property of a decedent under the laws of intestacy.
o The Distributee’s of the decedent are determined as of the decedent’s date of death.
o In a probate preceding you must get jurisdiction over all Distributee’s of the decedent.
o Distributee’s include:
§ Post-humous children (i.e. children conceived before, but born after the death of the decedent)
§ Adopted children & non-marital children.
§ Descendents who are conceived & born after the death of the decedent are not entitled to inherit from decedent’s estate.
CLASS GIFTS
· EPTL 2-1.3(a)(1) à Class Gift is the passage of property to a group of people, such as issue.
o If you leave your estate to your issue, you are leaving it to a class.
o If you leave your estate to heirs at law it is also a class gift.
· Children who have a right to inherit as part of a class:
1. Adoptive Children à EPTL 4-1.1(d) refers to DRL 117
2. Post-Humus à EPTL 4-1.1(c)
3. Pretermitted or After- Born à EPTL 5-3.2
4. Non-Marital Children à EPTL 4-1.2
1. EPTL 4.1.1(d) à Adoptive Children: Refers to DRL 117.
· Purpose of DRL 117 à To permit the adoptive child to inherit as if they were the natural child of the parent; make relationship as close to a parent/child relationship as possible.
· Generally, once an adoption takes place, all ties btwn the natural parents & the child are separate
· The law was that an adopted child could inherit through the laws of intestacy & by Will by his/her natural parents regardless of the adoption – NO LONGER LAW, except under certain circumstances
· 1960’s: Adopted child was given greater right to inherit from an adopted parent’s estate.
· Mid 1960’s law was changed so as to give a natural parent the right to inherit from the adopted child & the adopted child the right to inherit from the natural parent under the following circumstances:
o Where the natural parent having lawful custody of the child marries or remarries and consents that the step-parent can adopt the child- the adopted child can inherit from the natural custodial parent and the natural custodial parent can inherit from the child.
· It is the law & effect at the time of the decedent’s death which governs the decedent’s rights of the adopted child.
TODAY’S LAW – DRL 117 divided into (1) and (2)
o DRL 117(1): Coverts the right of an adopted child to inherit when no will
§ DRL 117(1): The right of an adoptive child to inherit in intestacy; the right of an adoptive child to inherit from or through his adoptive parents and well as from & through his natural parents.
· “Through them” = from a family member of the adoptive parent
o DRL 112 (2): The right of an adoptive child to inherit pursuant to the terms of a Will
The Relationship btwn the Adoptive Child & the Natural Parent: (NO WILL)
§ DRL 117(1)(a): A natural parent CANNOT inherit from the estate of an adopted child, except under certain circumstances
· The natural parents of the adoptive child shall be relieved of ALL parental duties towards the adoptive child, and shall have no rights over such adoptive child or to his property by descent.
§ DRL 117(1)(b): the rights of an adopted child to inherit from and through his natural parents shall terminate upon the making of an order of adoption , except if the provisions of
be ascertained at a future time.”
· Unless the will of a deceased adoptive parent provides otherwise, an adoptive child is included under the will of a deceased adoptive parent w/in the relationship of “children,” “issue,” “descendants,” “heirs,” “heirs in law,” “next of kin,” “distributees.”
2. EPTL 4-1.1(c) à Posthumous Children conceived before but born alive after the death of the decedent, are also permitted to inherit pursuant to the law of intestacy.
§ EPTL 2-1.3 à Rights of Posthumous Child to Inherit as Members of a Class
3. EPTL 5-3.2 àPretermitted or After- Born: “After Born Child Statute”
· Pretermitted- means omitted or excluded
· A child who is UNINTENTIONALLY omitted by the testator from his/her will.
· PROTECTS after-born children who are otherwise un-provided for by the decedent; either by a Will or other means.
· Provides protection to children who are born after the execution of the decedent’s will, either during the decedent’s lifetime or after the decedent’s death. Thus, the child applies to posthumous children.
§ EPTL 5-3.2 à An intent forcing statute purposed to provide for a child where testator himself would have done so but for oversight or lack of opportunity.
· The Statute does NOT apply if the after-born is otherwise provided for by “any settlement” or is otherwise provided for or mentioned in the will.
· The Statute does NOT apply if the will of the testator provide for or otherwise names the child. A disposition in the will “to my children” will include all children of the testator born after the execution date of the will, including posthumous children.
· The will specifically disenfranchises after-born children à If the will specifically provides that its term SHALL NOT apply to any children born after the date of its execution, the after-born will NOT be entitled to inherit from the estate of the testator.
EPTL 5-3.2(a)(1)(A) à If the Testator had 1 or more children living when he executed his Will & he provides for NONE of them, the after-born is NOT entitled to share in the testator’s estate.
The rational is that the testator is presumed to NOT have INTENDED to have any of his children’ inherit.
EPTL 5-3.2(a)(1)(B)(i) & (ii)à If a testator wrote a Will & provided for 1 or more children, the after-born share in the disposition of the other children proportionally.
§ i.e. If decedent leave ½ to Child Sue & Child Sam and Baby came after, Baby gets ½
§ i.e. Testator dies w/ estate of $5 million, he has 2 children and only leaves the 2 children $300 each. And then there is an after-born. What is the after-born? $200 ($300 + $300 = $600/ 3 = $200 to each child)
EPTL 5-3(a)(1)(B)(iii) à However, if the Testator leaves his two children $300 each “b/c they have treated him so poorly during my lifetime,” in that case the after-born will be entitled to receive his intestate share.
§ The decedent had “qualified” his interest of the 2 children that were alive by the language “b/c they have treated me so poorly.”
§ The law will not punish the after-born child for the acts of the 2 children.
EPTL 5-3.2 (a)(2) à If the testator has NO children alive when the Will is executed, then the after-born child takes such portion of the estate as he had been entitled to receive pursuant to the laws of intestacy.
4. EPTL 4-1.2 à Non- Marital Children; “Illegitimate” or “Out of Wedlock.” Must determine Paternity
§ The right of a parent to inherit from a child and the right of a child to inherit from a parent & more specifically a parent who is alleging he is the father of a child.
§ EPTL 4-1.2(a) governs the circumstances under which a non-marital child will have established his/her standing to assert inheritance rights from or through his/her father and paternal kindred.
Four Methods by which a Non-Marital child may prove paternity in New York:
1. EPTL 4-1.2(a)(2)(A) à Order of Filiation or Acknowledgment of Paternity:
· During the lifetime of the father he made an order of filiation declaring paternity or the mother & father of the child have executed an acknowledgment of paternity.
2. EPTL 4-1.2(a)(2)(B) à Acknowledgment of Paternity by Father:
· The father of the child has signed an instrument acknowledging paternity
