In everyday life, you will often hear people speak about their hope for an inheritance from a family member or relative. However, this commonplace use of the term “inheritance” often masks a misunderstanding of the law and can lead to unintended consequences when misplaced assumptions are not addressed. Today we are going to examine exactly what the term “inheritance” means from a legal standpoint, and how having a Will takes uncertainty out of the equation.
What defines an “heir”? Strictly speaking, one is not an “heir” of a living person. That is because the exact identity of an “heir” is determined at the time of the decedent’s death. The determination is made by the laws of the jurisdiction, and not by the decedent. An “heir,” then, is a legal creation and its terms are defined by a State. One becomes an heir by virtue of satisfying the definition in a statute. In New York, that statute is EPTL § 4-1.1. That is because New York has an interest in the smooth transfer of property from one generation to the next. As such, an “heir” is the statutory recipient of property from a decedent who dies without a Will (intestate). The State is also the final “heir” in most statutory schemes. If there are no statutory heir, then the property will go to the State (escheat). In New York, a person who inherits property under intestate succession is called a distributee.
New York also has a “laughing heir” statute (EPTL §4-1.1(6)). A “laughing heir” is someone entitled to inherit by law who is so remotely connected to the deceased that he or she would not feel any sorrow at hearing of the death. To prevent this occurrence, New York cuts off heirs at the grandchildren of the deceased: “For the purposes of this subparagraph, issue of grandparents shall not include issue more remote than grandchildren of such grandparents.” No one more remote, such as a great-grandchild, may inherit. After that, the property of the deceased escheats to the State.
When a person dies without a Will, New York uses as its default an intestate distribution system called per capita (“each head”) at each generation. In this system, each person is weighed equally. By virtue of their presence on the family tree, no one can be disinherited. The first thing we have to do is determine the number of surviving distributees. To illustrate: Beth is a single person who dies without a Will. She had two sons named Luke and Dick, and a daughter named Nancy. Luke had two children, Bill and Jane, and Nancy had one child named Jim, and Dick had two children named Sandy and Sam.
At the time of Beth’s death, Luke had already predeceased her. Had Luke been alive, he, Nancy and Dick would have each received 1/3 of the estate. Because Luke has already died, Nancy and Dick each receive their 1/3 share, and Luke’s children divided what would have been their father’s share equally between them. So Nancy receives 1/3, Dick receives 1/3 , and Bill and Jane each receive 1/6.
Depending upon your family situation, the New York default system of distribution may not suit your needs. In that case, you may want to draft a Will stipulating that you want your estate distributed per stirpes (“by each branch”) to give you more control over the outcome. In New York, a person who receives under a Will is called a beneficiary. Let’s say that you want your great-grandchild to receive something from your estate. Drafting a Will eliminates the “laughing heir” statute and allows you to leave something to your great-grandchildren. A Will also allows you to distribute your estate to a class of beneficiaries, such as “to all my children” or “to all of my grandchildren” to cover any issue born or adopted after the execution the Will (pretermitted child). The class closes at the time of the death of the testator.
Finally, instead of having your estate possibly escheat to the State, you can name a person unrelated to you or a charity as a beneficiary of your residuary estate. Your property can then be used in a way that is consistent with your life and beliefs. You should seek the advice on an attorney in drafting a Will so that your wishes are reflected in the resulting document.
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