The Comprehensive Guide to Probate, Trusts, Estate Planning, and Inheritance Litigation

Common Terms in New York Probate

Terms of art can make a New York probate confusing to navigate for the layperson who has never gone through the probate process before.  New York’s Estate, Powers & Trusts Law (EPTL) defines numerous terms used in administration of New York probate estates.  Some of the most used terms are set forth below.

What Is A Will In New York?

EPTL 1-2.19 defines the term “will” and states:

(a) A will is an oral declaration or written instrument, made as prescribed by 3-2.1 or 3-2.2 to take effect upon death, whereby a person disposes of property or directs how it shall not be disposed of, disposes of his body or any part thereof, exercises a power, appoints a fiduciary or makes any other provision for the administration of his estate, and which is revocable during his lifetime.

(b) Unless the context otherwise requires, the term “will” includes a “codicil”.

If a disposition of property is made to you by a will, you are a “testamentary beneficiary” under New York EPTL 1-2.18.

The definition of “will” under New York law contains several other terms of art, including “codicil,” “estate,” and “fiduciary.”

What Is A Codicil?

“Codicil” is defined in New York EPTL 1-2.1 as follows:

A codicil is a supplement to a will, either adding to, taking from or altering its provisions or confirming it in whole or in part by republication, but not totally revoking such will.

What Is An Estate In New York?

The term “estate” is defined in New York EPTL 1-2.6 as follows:

Depending upon the context, “estate” may mean:

(a) The interest which a person has in property.

(b) The aggregate of property which a person owns.

What Is The Difference Between The Terms “Fiduciary” And “Personal Representative” In New York?

Sometimes the terms “fiduciary” and “personal representative” are used interchangeably in New York probates.  However, the terms are not interchangeable.

Pursuant to New York EPTL 1-2.7:

A fiduciary is a person who meets the description, in this part, of a “personal representative” or who is designated by the creator 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.

A personal representative is defined in New York EPTL 1-2.13:

A personal representative is a person who has received letters to administer the estate of a decedent. The term does not include an assignee for the benefit of creditors, or a committee, conservator, curator, custodian, guardian, trustee or donee of a power during minority.

Therefore, a personal representative is a fiduciary, but a fiduciary is not necessarily a personal representative.

What Is A Disposition In New York Probate?

A “disposition” is defined in New York EPTL 1-2.4 as follows:

A disposition is a transfer of property by a person during his lifetime or by will.

What Are The Different Types of Dispositions In New York?

There are several different types of dispositions under New York law, including testamentary, demonstrative, specific, and general.

A “testamentary disposition” is a disposition of property made by a will.

A “demonstrative disposition” is defined by New York EPTL 1-2.3 as “a testamentary disposition of property to be taken out of specified or identified property.”

A “specific disposition” is defined in EPTL 1-2.17 as “a disposition of a specified or identified item of the testator’s property.”

A “general disposition” is defined in EPTL 1-2.8 as “a testamentary disposition of property not amounting to a demonstrative, residuary or specific disposition.”

What Is A Distributee In New York Probate?

New York EPTL 1-2.5 defines distributee:

A distributee is a person entitled to take or share in the property of a decedent under the statutes governing descent and distribution.

What Are Issue Under New York Law?

Issue are defined in New York EPTL 1-2.10 as follows:

(a) Unless a contrary intention is indicated:

(1) Issue are the descendants in any degree from a common ancestor.

(2) The terms “issue” and “descendants”, in subparagraph (1), include adopted children.

What Is The Difference Between Per Stirpes, Per Capita, and By Representation?

Per capita means that all the living members of a group will receive an equal share, while per stirpes means if a beneficiary is not living when you die, their share of the estate passes to their descendants. By representation means that the shares the predeceased beneficiaries at the same generation are divided equally between all of their children, and is the default in New York.  These terms matter greatly in New York probate because they govern the distributees of a decedent’s estate.

“Per capita” is defined in New York EPTL 1-2.11 as follows:

A disposition or distribution of property is per capita when it is made to persons, each of whom is to take in his own right an equal portion of such property.

“Per stirpes” is defined in New York EPTL 1-2.14 as follows:

A per stirpes disposition or distribution of property is made to persons who take as issue of a deceased ancestor in the following manner:

The property so passing is 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 surviving member in such nearest generation is allocated one share. The share of a deceased issue in such nearest generation who left surviving issue shall be distributed in the same manner to such issue.

Finally, the term by “representation” is defined in New York EPTL 1-2.16:

By representation means a disposition or distribution of property made in the following manner to persons who take as issue of a deceased ancestor:

The property so passing is 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 surviving member in such nearest generation is allocated one 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.

Examples of Per Stirpes, Per Capita, and By Representation In New York

By way of example, lets say Anne has three children: Barbara, Christy, David, and Edgar.  Barbara and Christy predecease Anne.

If Anne left her estate to her children per capita, David and Edgar share the distribution

If Anne left her estate to her children per stirpes, David and Edgar each get ¼ of the estate, Barbara’s two children get ¼, and Christy’s one child gets ¼.

If Anne left her estate to her children by representation, David and Edgar each get ¼ of the estate, and the three grandchildren all split the remaining ½ of the estate equally.

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Find Your New York Probate Star

Brooklyn

Inna Fershteyn

Westchester County

Anthony Nigro

Nassau County

Cyrus Shaw

Erie County

Ruth P. George

Queens

Rudolf Karvay

Suffolk County

Marc Weissman

Rockland County

Ari J. Zaltz