EPTL Article 1

This marks the beginning of our weekly discussion on the law - things you should know about how your estate will be handled should you not craft a will that caters specifically to your needs and desires.

We will begin by taking a look at Article 1 of the New York Estates, Powers, and Trust Law (EPTL). The first Article deals with definitions. Let's review the most important definitions you need to know.

1-2.1 Codicil: A supplement to the will that either adds, removes, or alters the terms of the will, or confirms any part of the will in whole or part by republication (i.e. by writing the part it affirms again)

1-2.4 Disposition: A disposition is the transfer of property by a person during his lifetime or by will

1-2.7 Fiduciary: This is a person who meets the qualifications of a personal representative or who is designated by the creator (a person who makes a disposition of property) or by the court to act as an assignee for the benefit of creditors, or a committee, conservator, curator, custodian, guardian, trustee, or donee of a power during minority.

1-2.10 Issue: These are the descendants in any degree from a common ancestor and include adopted children.

Different Types of Distribution
1-2.3 Demonstrative Disposition: This is a testamentary disposition or property that is to be taken out of a SPECIFIC or IDENTIFIED property.

1-2.8 General Disposition: This is a testamentary disposition of property NOT amounting to a demonstrative, residuary, or specific distribution.

1-2.11 Per Capita Distribution: A disposition or distribution that is done per capita means it is made to persons, each of whom is to take in his own right an equal portion of such property.

1-2.14 Per Stirpes Distribution: This type of distribution is made to persons who take as issue of a deceased ancestor in the following manner:
The property is first divided into as many equal shares as there are (i) surviving issue in the generation nearest to the deceased ancestor which contains one or more surviving issue and (ii) deceased issue in the same generation who left surviving issue, if any. Each of these people get 1 share.

What this means: Let's suppose Andrea passes away with $100,000 in total assets. She is predeceased by her 3 sisters who leave behind 5 nieces Beatrice, Catherine, Deborah, Eliza, and Francesca, and 3 nephews: Gary, Harry, Ivan. And Andrea leaves 2 sons: John and Kevin.

The law says first: Lets look at the nearest generation - her sons. There are 2, so they get a total of 2 shares (1 each). Then its says lets look at her generation - were there any siblings? Yes? Did they leave children? Yes? They each get a share.

The end result is that everyone in this example gets 1 share each, or $10,000.

1-2.16 Distribution by Representation ** This is the Default method of distribution **
This is essentially the same as Per Stirpes, EXCEPT, in how they distribute the shares to the second class of issue (deceased issue in the same generation who left surviving issue, if any)

Here is how it's different:
After the surviving issue in the nearest generation receive their 1 share, "the remaining shares, if any, are combined and then divided in the same manner among the surviving issue of the deceased issue as if the surviving issue who are allocated a share had predeceased the decedent, without issue."

So instead of everyone getting 1 share, the nearest generation would each get 1 share, and if there is anything left over in the estate it gets combined and then redistributed to who ever is left.