The Sources of Law Governing the Administration Process
The New York State Legislature is charged with the responsibility for developing statutory authority in New York. The power granting this branch of the government this power is born from Article III, section 1 of the New York State Constitution. There are two bodies that make up the legislative branch of the government, the Senate and Assembly. The New York State Legislature has created two important statutes which govern a decedent's affairs as a whole, including administration. The two major authorities are the Surrogate's Court Procedure Act and the Estates, Powers, and Trusts Law. The Surrogate's Court Procedure Act governs procedure in for preparing an administration proceeding as well as the procedure to follow in the Surrogate's Court. The Estate, Powers, and Trusts Law is the substantive law that governs the rights of decedents, litigants and estates.
Finding the Law
After a bill passes the process of becoming a law it becomes part of the consolidated laws. New York's Consolidated Laws are divided into ninety-one subject areas. Two of these subject areas cover Surrogate's Court Procedure Act and the Estate, Powers, and Trust Law. New York does not offer an official code of laws. New York endorses two unofficial services provided by WestLaw and LexisNexis. WestLaw publishes McKinney’s Consolidated Laws of New York. LexisNexis publishes Consolidated Law Service. Both can be found in book form in the Gould Law Library, located on the second floor. Both sources offer annotated versions. This is a very helpful feature offering case law and practice commentaries and insights on the statutory sections.
Electronic Sources
There are many options for locating the laws of New York in electronic format. WestLaw and LexisNexis will contain their respective published sources. New York also offers a free electronic version located at http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS.
Surrogate's Court Procedure Act
The Surrogate's Court Procedure Act details the procedure to follow in the Surrogate's Court. Article 10 of the Surrogate's Court Procedure Act is the section that covers intestate administration. The following will detail different methods to locate the Surrogate's Court Procedure Act.
New York State Electronic Source - http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS. From here you can look for the code for the Surrogate's Court Procedure Act which is SCP. Clicking on the link will bring you to the entire act. From here you can select Article 10.
McKinney’s Consolidated Laws of New York - WestLaw. Click on "Statutes & Court Rules" followed by New York. From here you will see the entire ninety-one sections. Select the link for the Surrogate's Court Procedure Act. From here you can search with in the Surrogate's Court Procedure Act.
Estates, Powers, and Trusts Law
The Estates, Powers, and Trusts Law provides the rights of the decedent, the estate, and litigants in the Surrogate's Court and in general, a decedent's affairs. Estate, Powers, and Trusts Law, Article IV, provides important rights regarding a intestate decedent and his or her distributees. The Estates, Powers, and Trusts Law can be searched utilizing the same methods as the Surrogate's Court Procedure Act. The code for the New York State Electronic Source is EPT.
Finding the Law
After a bill passes the process of becoming a law it becomes part of the consolidated laws. New York's Consolidated Laws are divided into ninety-one subject areas. Two of these subject areas cover Surrogate's Court Procedure Act and the Estate, Powers, and Trust Law. New York does not offer an official code of laws. New York endorses two unofficial services provided by WestLaw and LexisNexis. WestLaw publishes McKinney’s Consolidated Laws of New York. LexisNexis publishes Consolidated Law Service. Both can be found in book form in the Gould Law Library, located on the second floor. Both sources offer annotated versions. This is a very helpful feature offering case law and practice commentaries and insights on the statutory sections.
Electronic Sources
There are many options for locating the laws of New York in electronic format. WestLaw and LexisNexis will contain their respective published sources. New York also offers a free electronic version located at http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS.
Surrogate's Court Procedure Act
The Surrogate's Court Procedure Act details the procedure to follow in the Surrogate's Court. Article 10 of the Surrogate's Court Procedure Act is the section that covers intestate administration. The following will detail different methods to locate the Surrogate's Court Procedure Act.
New York State Electronic Source - http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS. From here you can look for the code for the Surrogate's Court Procedure Act which is SCP. Clicking on the link will bring you to the entire act. From here you can select Article 10.
McKinney’s Consolidated Laws of New York - WestLaw. Click on "Statutes & Court Rules" followed by New York. From here you will see the entire ninety-one sections. Select the link for the Surrogate's Court Procedure Act. From here you can search with in the Surrogate's Court Procedure Act.
Estates, Powers, and Trusts Law
The Estates, Powers, and Trusts Law provides the rights of the decedent, the estate, and litigants in the Surrogate's Court and in general, a decedent's affairs. Estate, Powers, and Trusts Law, Article IV, provides important rights regarding a intestate decedent and his or her distributees. The Estates, Powers, and Trusts Law can be searched utilizing the same methods as the Surrogate's Court Procedure Act. The code for the New York State Electronic Source is EPT.
Intestacy Under the Estates, Powers, and Trusts Law
EPTL § 4-1.1
This section of the EPTL is the most important section in an administration proceeding. It what parties take in the decedent's estate as well as which parties require notice of the proceeding. New York creates a statutory will for the decedent, making the decision on the distribution of the estate. This section of the EPTL can be found by any of the prior methods detailed.
The Estates, Power, and Trust Law, section 4-1.1 provides:
The property of a decedent not disposed of by will shall be distributed as provided in this section. In computing said distribution, debts, administration expenses and reasonable funeral expenses shall be deducted but all estate taxes shall be disregarded, except that nothing contained herein relieves a distributee from contributing to all such taxes the amounts apportioned against him or her under 2-1.8. Distribution shall then be as follows:
(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.
The law provides us with important information when distributing a decedent's estate. Most importantly, the average decedent, who dies without a will, leaving a spouse and children will see his or her spouse get $50,000.00 and one half of the residue of the estate and the children get the remaining one half residue dived by representation. The statutory definition of by representation can be found under EPTL 1-2.16. If the decedent is predeceased by one or more of his children and the children leave behind issue, that child's share is combined with any other predeceased child's share and redistributed as a whole between the next generation (the decedent's grandchildren), in equal shares.
The laws of intestacy have raised two important issues regarding the distribution of a decedents estate. There are two classes who are in a decedent's estate which can be found in other statutory sources. The first is the adopted child of the decedent. The Domestic Relations Law, section 117, gives adoptive children the ability and right to inherit from adoptive parents. This causes them to terminate the right to inherit from natural parents with a few exceptions, including when a biological family member adopts. The second is same sex marriages. The Domestic Relations Law, section 10-a, affords all same sex marriages the same rights as opposite sex marriages. This allows a decedent's spouse, whether the same or opposite sex, to take in the decedent's estate according to then laws of intestacy.
This section of the EPTL is the most important section in an administration proceeding. It what parties take in the decedent's estate as well as which parties require notice of the proceeding. New York creates a statutory will for the decedent, making the decision on the distribution of the estate. This section of the EPTL can be found by any of the prior methods detailed.
The Estates, Power, and Trust Law, section 4-1.1 provides:
The property of a decedent not disposed of by will shall be distributed as provided in this section. In computing said distribution, debts, administration expenses and reasonable funeral expenses shall be deducted but all estate taxes shall be disregarded, except that nothing contained herein relieves a distributee from contributing to all such taxes the amounts apportioned against him or her under 2-1.8. Distribution shall then be as follows:
(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.
The law provides us with important information when distributing a decedent's estate. Most importantly, the average decedent, who dies without a will, leaving a spouse and children will see his or her spouse get $50,000.00 and one half of the residue of the estate and the children get the remaining one half residue dived by representation. The statutory definition of by representation can be found under EPTL 1-2.16. If the decedent is predeceased by one or more of his children and the children leave behind issue, that child's share is combined with any other predeceased child's share and redistributed as a whole between the next generation (the decedent's grandchildren), in equal shares.
The laws of intestacy have raised two important issues regarding the distribution of a decedents estate. There are two classes who are in a decedent's estate which can be found in other statutory sources. The first is the adopted child of the decedent. The Domestic Relations Law, section 117, gives adoptive children the ability and right to inherit from adoptive parents. This causes them to terminate the right to inherit from natural parents with a few exceptions, including when a biological family member adopts. The second is same sex marriages. The Domestic Relations Law, section 10-a, affords all same sex marriages the same rights as opposite sex marriages. This allows a decedent's spouse, whether the same or opposite sex, to take in the decedent's estate according to then laws of intestacy.
Legislative History of 4-1.1
The process involved in a bill becoming a law creates a legislative history from the time the bill is enacted until the time the bill is passed and becomes a law. This information provides reasons behind what the legislature thought and why a certain law was enacted. When a law is amended the same process occurs. All the information is provided in the session laws of a statute. These Session Laws can be found after the statutory test on WestLaw or in annotated copies of statutory authority. This will provide you with the year of enactment and chapter number for location the legislative history. The last amendment to section 4-1.1 occurred in 1992. The cite to this amendment is L.1992, c. 595, § 8. This means the amendment came in the 1992 session as session law 595, section 8. The bill jacket for this law is linked on WestLaw for review. Otherwise, one can search the archives at http://www.archives.nysed.gov/a/research/res_topics_legal_billveto.shtml. This only covers from 1995 until 2010. In order to find the bill jacket, you would need to search the New York State archive, New York Public Library, or the New York State Library for other forms.