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17 Cards in this Set
- Front
- Back
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1. Conviser dies intestate, survived by his wife Deborah, his mother Marie, and his brother Robert. Conviser never had children. At his death, Conviser owned property worth $300,000. What distribution?
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Wife Deborah: $300k
Mother Marie: Nothing Brother Robert: Nothing. RULE:If the intestate decedent is survived by her spouse but not by any issue, the surviving spouse takes the entire estate. |
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2. Conviser died intestate survived by his wife Carol and three children: Marcia, Jan, and Oliver. Marcia and Jan are by an earlier marriage and Oliver is by his marriage to Carol. Conviser owned property worth $650,000. What distribution?
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Carol gets first 50k + 1/2 the residuary.
650k (estate) - 50k (statutory intestate share) = 600k. 600k /2 = 300k. So wife gets 300k + 50k = 350k. Marcia, Jan & Oliver: 100k each (balance of the residuary) $650k(estate)-350k(Carol's share)= $300k. $300k/3 children = $100k each RULE: If the intestate decedent is survived by his spouse and one or more children or their issue (descendants), whether of this marriage or an earlier marriage, the surviving spouse takes the first $50K off the top of the estate and ½ of the balance (the residuary); and the issue inherits the rest (all share equally). |
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3. Winona, a widow, had three children but two of them (Art and Bill) predeceased her. Art had one child and Bill had two children. As indicated by the family tree below, Winona was survived by her daughter Carol, her daughter-in-law Betty, and four grandchildren as her nearest kin. What distribution?
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Carol takes: 1/3.
G-1, G-2, G-3 take: 2/9th each. [For the G1, G2, G3, we divide up Art AND Bill’s shares (2/3) and divide equally → 1/3.] G4 (Carol's child) gets nothing b/c Carol is still alive. RULE: if intestate decedent is survived by children & issue of predeceased children > passes to "alive children" & to the issue of the dead children "by representation" but not to the issue of the children who are still living. Betty, daughter in law, gets nothing Note: issue of predeceased children = decedent's grandchildren. |
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Old rule in NY
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In most states (and formerly in New York), the distribution is “per stirpes,” under which the issue of a deceased child takes the share their parent would have inherited if living. In the example above Carol would take 1/3; G-1 would take 1/3 in place of Art; and G-2 and G-3 would take Bill’s share or 1/6 each. NEW YORK DOES NOT FOLLOW THIS. PEOPLE OF THE SAME GENERATION ARE TREATED EQUALLY. Rule is now: Per Capita by Generation.
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Why old rule might be important on test
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If someone says in their will they want something distributed "per stirpes" that is how it will be done.
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Added fact to previous hypo @ Intestate Decedent who is survived by children + issue of predeceased children (decedent's grandchildren):
Bill, who predeceased his mother, left a will that left “all my property, including any interest I have in my mother’s estate, to my wife Betty. Does Betty take a share? |
NO. Bill had no interest to leave Betty in his will. Bill died before Winona. So unlike Carol, Bill did not get anything. Bill only had an expectancy. An expectancy is NOT a legal interest you can own and pass along in a will.
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In 1993, Tillie who is single executes a Will that bequeaths $300,000 “to the issue of my brother Bill,” and the rest of her estate to her sister Sue. When the Will is executed, Bill has three children: Alice, Carol, and Donna. Alice dies in 1996, leaving a child Andy. Carol dies in 1999, leaving two children, Clyde and Claude. Tillie dies in 2004, and her Will is admitted to probate. Tillie is survived by her sister Sue; by her niece Donna, and by her three grand-nephews (Andy, Clyde and Claude). Who takes the $300,000 to Bill’s “issue”?
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Step 1: The property is divided into as many equal shares as there are at the first generational level at which there are survivors – here, the nephew-niece level. (Divide into 1/3s)
Step 2: All living persons at the first generational level take a share. = Donna gets 1/3 Step 3: The shares of deceased persons at that level are combined and then divided at the grand-nephew level. = 2/3 of Alice and Carol’s share → distributed equally at next generation to those taking by representation: Andy 2/9ths; Clyde 2/9ths; Claude 2/9ths. |
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By Representation is a way of distributing property when decedent dies intestate. But can "By Representation" apply if Decedent had a will?
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Yes - if the will says to do it that way.
Note: will could aslo say to do it per stirpes. |
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Carol's father dies; mother remarries, and second husband adopts Carol.
Carol and her issue have inheritance rights from who? |
- natural mother
- adopted father - dead natural father's family (e.g. his mother) |
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Family Facts > Granny has 3 kids Maude, Sarah and Pete. Maude has 1 daughter Leah. Sarah has 2 children Sam and Susan. Pete has no children. In 1999 Maude dies, so Sarah adopts Leah as her daughter. Sarah dies in 2001 and then Granny died in 2004. Pete, who wants a 1/2 share, claims that Leah takes the the adoptive relationship only, meaning that there are only 2 lines of issue (Sarah's line and Pete), and Pete inherits 1/2 of Granny's estate. Is Pete Right?
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No. Leah was adopted by a relative (Sarah was her Aunt) so she takes under the natural relationship via Maude.
So there are 3 lines of issue -Pete takes 1/3; -Leah, Sam and Susan take: 2/9 because Maude and Sarah's share are combined and then divided by 3. |
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Same facts as above but Sarah (not Granny) dies intestate. What distribution of Sarah's estate?
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Leah takes b/c where an adopting parent dies intestate, the child takes under the adoptive relationship.
So Leah, Sam and Susan take: 1/3 each as Sarah's children. |
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As a teen, Tom's daughter Dana has a child (Eddie) born out of wedlock in 1995. Eddie was placed up for adoption and was adopted by the Smiths. (Because the adoption records are sealed, identity of the adoptive family is not known to Tom or Dana). Thereafter, Dana married and had a child Steve. Tom dies in 2005, leaving a Will that established a trust: "income to Dana for life," and upon Dana's death, remainder to her issue." Dana has just died. The Trustee learns of Dana's teenage pregnancy and somehow learns the identity of Eddie.
Is Eddie (the "adopted out" child) entitled to a share of the gift of the trust remainder to Dana's "issue" along with Dana's son Steve? |
Adopted Out children & Class Gifts Hypo
A. No. Eddie is not entitled, adopted child into new family has no inheritance right from natural family even if its a class gift. |
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Same facts. Would Eddie be entitled to a share if he had been adopted by another family member?
ex: Eddies parents died and he was adopted by his aunt? |
Yes - he would inherit the class gift as Dana's son.
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Does child support establish paternity
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Not by itself. Why: We want to encourage support but don't want to freak people into not giving it by saying they will be held resp. as the parent.
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On Al's 25th bday his father Fred gave Al 100 acres of land and told his other two sons Ben and Carl, "you will receive similar gifts when you turn age 25." Two weeks later, Fred wrote Al a letter: "I want you to know that the land I gave you is to be considered an advance on your inheritance share of my estate." And Fred signed it. Two years later Fred died intestate and is survived by Al, Ben and Carl. The net value of Fred's estate is $300k and the land given to Al is worth $30k at Fred's death.
Q1: Is Fred's Gift to Al an "Advancement?" Q2: How should Fred's estate be distributed? |
Q1. Not an advancement in NY. Need a contemporaneous writing and 2 weeks after is not contemporaneous
Q2. The $300k estate is divided into 3 equal shares for A,B and C. The letter from Fred to Al is disregarded. |
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Same as above, but pretend the letter was contemporaneous and therefore an advancement. How to distribute Fred's estate of $300k?
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estate value + advancement = new estate value.
new estate value / 3 Then son who got the advancement subtracts the advancement from the amount he would have received. HERE: $300k +30k = $330k $330k / 3 = $110k. Al will get $110k - 30k = $80k B anc C each get $110k. CHECK IT: $110k + $110k + $80k = $300k which is the amount he had to give in the first place |
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Tom wrote a will that made a $25k bequest to his niece Nell. Thereafter, Tom gave Nell $10k in cash, telling her (in the presence of a priest, a bishop and a rabbi): I want you to know that this is a downpayment on the legacy I have given you in my will." Tom dies 2 years later.
Q. Should the $100k gift be treated as a partial satisfaction of Nell's legacy? |
HYPO: Lifetime Gifts By Testator to Beneficiary: "Satisfaction of Legacies" (Will Exists)
A. No. No contemporaneous signed writing. So Nell takes entire $25k. |
