RES PUBLICAE

You need a Last Will for many reasons.  Even if you do not have a Last Will, you have an estate plan. That plan is laid out by New York’s intestacy statute, which provides the order in which your relatives will inherit your estate if you die without a will.  If you are survived by your spouse only, your spouse will inherit your entire estate. If you are survived by your spouse and children, your spouse will inherit the first $50,000.00 of your estate, and the remainder will be split equally between your spouse and children.  This provides the first reason why you should have a Will. Read the rest of this entry »

If you interact with an estate attorney, you may hear the term distributee. In New York, the term distributee has a legal meaning set out in Estates Powers and Trusts Law Section (EPTL) 1-2.5. The statutory definition is “A distributee is a person entitled to take or share in the property of a decedent under the statutes governing descent and distribution.” The statute refers to EPTL 4-1.1, which sets forth the persons entitled to inherit from a Decedent when there is no Last Will and Testament.

EPTL 4-1.1 sets forth the distributees as follows: Read the rest of this entry »

Nope, it’s not a highway.  Intestate (or intestacy) means that a Decedent has died and has not left a Last Will and Testament to be admitted to probate. The New York Estates, Powers, and Trusts Law Section 4-1.1 sets forth those persons who are entitled to the estate of a Decedent who died intestate. Thus, everybody has an estate plan in place, even if a Last Will has not been executed.

Note - The statute may not reflect how you would want your estate to be distributed. It is best to consult with an attorney to discuss your estate planning, and not leave your estate plan in the hands of Albany.

Testate means that a Decedent has died leaving a Last Will and Testament to be admitted to probate.

A Decedent is someone who has died.

Administration is a judicial proceeding similar to a probate proceeding.  The major difference is that an Administration is undertaken when the Decedent did not execute a Last Will and Testament.  If there is an estate to administer, an interested party can petition the court to be appointed as Administrator for the estate.  This is done by filing an Administration Petition with the Surrogate’s Court.  After the appointment of Administrator is made, the estate’s affairs can be wound up.

Probate is a judicial proceeding by which a testamentary document is proven to be a Last Will and Testament. It is begun in New York by filing a Probate Petition with the Surrogate’s Court. Once it is established to the satisfaction of the Surrogate that there is no issue of improper execution or attestation, testamentary capacity, fraud, or undue influence, the document will be “admitted to probate” and given effect as a Last Will and Testament. A Decree is signed and entered so stating, and an Executor is appointed to administer the estate.

To follow up the definition of per stirpes, our next term is by representation. Again, this term is used to tell us attorneys how the children of a deceased named beneficiary should take their inheritance. Again, a numerical example is the best explanation.

Back to our previous hypothetical: Read the rest of this entry »