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Wills / Estate Taxation 1 W ILLS I. Intestate Succession A. Descent & Distribution Rules (apply when) 1. Decedent left no will (or left a will that wasn’t properly executed) (i.e. died intestate ); 2. Will does not make a complete disposition of the estate (“ partial intestacy ”); OR 3. Heir (“ distributee ”) successfully contests the will, & the will is denied probate B. Intestate Decedent Survived by Spouse 1. Spouse and one or more children (issue) a. Spouse takes = $50K off the top + ½ of the balance b. Remaining ½ = passes to children (issue per capita at each generation) NOTE: regardless of whether kids came from that marriage or an earlier one 2. Spouse & NO issue = spouse takes entire estate 3. NOTE: if intestate survived by spouse, C. Issue Take “Per Capita At Each Generation” 1. Rule of per capita at each generation a. Step 1 – make the initial division of shares ( with one share for each line of issue ) at 1 st generational level at which there are living takers b. Step 2 – all living persons at that generational level take a share c. Step 3 – the shares of deceased persons at that generational level are combined & then divided equally among the takers at the next generational level in the same way 2. Result issues in the same degree of kinship to the decedent always take equal shares a. NOTE: in-laws are NOT issue , so they don’t get anything (i.e., Issue’s surviving wife gets nothing) b. NOTE: Issue, who predeceased mother, had left a will leaving “all my property, including any interest I have in my mother’s estate, to my wife” – wife can NOT take because he had no interest to leave his wife (only had an expectancy in his mother’s estate) Gift in a WILL or TRUST to someone’s issue – also distributed per capita at each generation E.g.: A’s will that bequeaths $$ “ to the issue of brother B ” & the rest of the estate to sister S D. Intestate Decedent Not Survived by Spouse or Issue 1. All to parents or surviving parent 2. If not survived by Parents – Issue of parents (siblings or their issue); per capita at each generation 3. If not survived by Issue of Parents: a. ½ to Maternal grandparents or their issue (limited to 4 ); AND b. ½ to Paternal grandparents or their issue (limited to 4 ) 4. If none of the above – great-grandchildren of grandparents (5 촌조카 ); per capita at each generation 5. No inheritance beyond great-grandchildren of grandparents – estate escheats to state of NY. E. Inheritance Rights of Adopted Children 1. Adopted children & their issue a. Adopting family – full inheritance (& vice versa) b. Natural parent or their kin – NO inheritance rights BUT, if child is adopted by the spouse of a natural parent , the child & his issue can inherit from (i) adopting parent, and (ii) either natural parent 2. If child is adopted by a relative (e.g., aunt or uncle) a. Decedent is adopting parent (e.g. adopting aunt dies intestate) – inherits
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This note was uploaded on 09/22/2011 for the course LAW LAW taught by Professor Concordia during the Spring '11 term at Concordia AB.

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