Archive for May, 2010
My child died in New York, without a will. The other parent abandoned the child, can the other parent still inherit?
Possibly. New York Estate Powers and Trust law § 4-1.4 controls this situation. Under this statute, a parent can be disqualified from inheriting from a child if such parent “has failed or refused to provide for the child or has abandoned such child, whether or not such child dies before having attained the age of twenty-one years, unless the parental relationship and duties are subsequently resumed and continue until the death of the child…”
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What happens if someone dies in New York without a will?
Posted by admin in Estate planning on May 30, 2010
The intestacy laws of the State of New York apply in situations where someone dies in New York without a will. The intestate laws of decent and distribution are complex, but here is the gist:
1. If there is a spouse, but no children, then the spouse would inherit all.
2. If there is both a spouse and children (of the deceased), then the spouse would receive $50,000, plus one half of the property. The balance would go to the children of the deceased.
3. If there are children, but no spouse, then the children would share equally.
4. If there is no spouse or children, then the surviving parents would receive the estate.
5. If there are no children, spouse or parents, then the aunts and uncles would receive the estate.
The list continues with cousins, etc.
Sec. 4-1.1 of the Estates, Powers and Trust Code
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If someone dies in New York without a will, where does the property go?
(a) If a decedent is survived by:
(1) A spouse and issue, fifty thousand dollars and one-half of the
residue to the spouse, and the balance thereof to the issue by
representation.
(2) A spouse and no issue, the whole to the spouse.
(3) Issue and no spouse, the whole to the issue, by representation.
(4) One or both parents, and no spouse and no issue, the whole to the
surviving parent or parents.
(5) Issue of parents, and no spouse, issue or parent, the whole to the
issue of the parents, by representation.
(6) One or more grandparents or the issue of grandparents (as
hereinafter defined), and no spouse, issue, parent or issue of parents,
one-half to the surviving paternal grandparent or grandparents, or if
neither of them survives the decedent, to their issue, by
representation, and the other one-half to the surviving maternal
grandparent or grandparents, or if neither of them survives the
decedent, to their issue, by representation; provided that if the
decedent was not survived by a grandparent or grandparents on one side
or by the issue of such grandparents, the whole to the surviving
grandparent or grandparents on the other side, or if neither of them
survives the decedent, to their issue, by representation, in the same
manner as the one-half. For the purposes of this subparagraph, issue of
grandparents shall not include issue more remote than grandchildren of
such grandparents.
(7) Great-grandchildren of grandparents, and no spouse, issue, parent,
issue of parents, grandparent, children of grandparents or grandchildren
of grandparents, one-half to the great-grandchildren of the paternal
grandparents, per capita, and the other one-half to the
great-grandchildren of the maternal grandparents, per capita; provided
that if the decedent was not survived by great-grandchildren of
grandparents on one side, the whole to the great-grandchildren of
grandparents on the other side, in the same manner as the one-half.
(b) For all purposes of this section, decedent’s relatives of the half
blood shall be treated as if they were relatives of the whole blood.
(c) Distributees of the decedent, conceived before his or her death
but born alive thereafter, take as if they were born in his or her
lifetime.
(d) The right of an adopted child to take a distributive share and the
right of succession to the estate of an adopted child continue as
provided in the domestic relations law.
(e) A distributive share passing to a surviving spouse under this
section is in lieu of any right of dower to which such spouse may be
entitled.
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I was left a property under a New York will. After the testator died, but before the property was given to me, it was destroyed. Who gets the insurance money?
To the extent available, the insurance proceeds would be paid to the beneficiary whose gift was destroyed.
EPT §3-3.45 provides:
Where insurance proceeds from property which was the subject of a specific disposition are paid after the testator’s death, such proceeds, to the extent received by the personal representative, are payable by him to the beneficiary of such disposition; and such proceeds retain the character of a specific disposition for all other purposes, including 12-1.2 and 13-1.3.
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I was left a house under a New York will. Before the testator died, s/he became incompetent and a guardian took over. The guardian sold his house before he died. What happens now?
Assuming that the testator was competent to make the will, and you can trace the proceeds from the sale of the house, then you would be entitled to the remaining proceeds.
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I left my house to someone under my will. I've since mortgaged the house. What happens?
Posted by admin in Estate planning on May 2, 2010
The beneficiary will receive the house, subject to the mortgage.
EPT 3-4.2
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How do I revoke a New York will that I've written?
Posted by admin in Estate planning on May 2, 2010
There are several ways to revoke a will in New York. The two most common:
1. Write a new will, and in the new will, mention that you have revoked your prior will.
2. Tear up or destroy your old will.
EPT 3-4.1
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I want to leave my house to someone under the will, but there is a mortgage on it. Will the recipient have to pay the mortgage?
In most cases, yes, the mortgage will follow the house. However, if the will specifically says that the house should be paid off before being transferred to the beneficiary, then the executor should use other estate assets to pay off the mortgage to the house.
EPT 3-3.6
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I'm afraid of someone contesting a will after I write it. Can I cut someone out of a New York will if they contest it?
Posted by admin in Estate planning, Probate on May 2, 2010
Yes, this is called an “in terrorem” clause in a will. An in terrorem clause typically states that should a beneficiary contest the will, then the beneficiary’s gift under the will lapses. There are exceptions to the rule under EPT 3-3.5, such as probable claims that a will is a forgery, or that the will was revoked.
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What does "per stirpes" mean?
Posted by admin in Estate planning, Probate on May 2, 2010
Per stirpes means “by the stripes.” Typically, in an estate planning context, a per stirpes distribution means that if a testator gives a gift to a beneficiary, but the beneficiary dies before the testator, then the gift shall go to the heirs of the beneficiary.
An example:
Linus makes a will leaving property to 1/2 Charlie and 1/2 Sophia. Charlie has two children, Lola and Paloma. Sophia has no children. Charlie dies first, Linus second. Linus’s gift can’t go to Charlie, because he’s already deceased. Linus’s gift to Charlie would go to Charlie’s children (1/4 to Lola and 1/4 to Sophia) and the remaining half would go to Paloma.
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My family member left property to a sibling in a will written in New York. The sibling died before the testator. What happens to that sibling's share?
Posted by admin in Estate planning, Probate on May 2, 2010
This is a common problem. If an heir predeceases a testator, then the gift may lapse, in some instances. You would need to see the specific language of the will. If the will is silent, then rhis gets more complicated if the heir is a sibling to the testator, thanks to EPT (§3-3.3):
If the will was written BEFORE 9/1/92: Whenever a testamentary disposition is made to the issue or to a brother or sister of the testator, and such beneficiary dies during the lifetime of the testator leaving issue surviving such testator, such disposition does not lapse but vests in such surviving issue, per stirpes.
If the will was written ON or AFTER 9/1/92: Whenever a testamentary disposition is made to the issue or to a brother or sister of the testator, and such beneficiary dies during the lifetime of the testator leaving issue surviving such testator, such disposition does not lapse but vests in such surviving issue, by representation.
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What are the basics of a will in New York?
Posted by admin in Estate planning, Probate on May 2, 2010
A will is a legal document in which a person (called the testator) gives instructions to another person or entity (called an executor) to dispose of property (called the estate) by giving it to various people or entities (called beneficiaries) upon the death of the testator.
Upon the death of the testator, the executor will file the will with the court (called probate) and ask the judge for authority to carry out the wishes contained in the will.
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I am going to receive property under a New York will. Can I be a witness to the will?
Posted by admin in Estate planning on May 2, 2010
Yes, but it’s a very, very bad idea. If the will cannot otherwise be proven without the witnesses’s testimony, then the gift to the witness ay either be voided, or reduced to whatever the witness would have received had there been no will.
(EPT §3-3.2)
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Can I handwrite my own will in New York, and avoid having to use witnesses, etc.?
Posted by admin in Estate planning on May 2, 2010
Under very limited circumstances, you can do a handwritten (holographic) will in New York. In New York, you can do a holographic will without the necessary formalities required by Sec. 3-2.1 of the code if you are:
(1) A member of the armed forces of the United States while in actual
military or naval service during a war, declared or undeclared, or other
armed conflict in which members of the armed forces are engaged.
(2) A person who serves with or accompanies an armed force engaged in
actual military or naval service during such war or other armed
conflict.
(3) A mariner while at sea.
However, such wills will later become invalid after the person comes home from war, returns from sea, etc.
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Who can make a will under New York law?
Posted by admin in Estate planning on May 2, 2010
New York requires that a person making a will must be (1) over the age of 18 years and (2) be of sound mind and memory.
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