NY Wills

Question 1

When a person dies without a will.

Answer 1

Intestate

Question 2

A person who dies with a will.

Answer 2

Decedent.

Question 3

Person who inherits property under intestate succession.

Answer 3

Distributes, sometimes known as heirs/next of kin.

Question 4

(Sometimes known as descendant) All persons who have descended from a common ancestor, including those in direct line of inheritance w/ decendant.

Answer 4

Issue

Question 5

What is the distribution rule for decedent survived by spouse and no children.

Answer 5

Surviving spouse takes whole estate.

Question 6

What is the distribution for decedent survived

Answer 6

x

Question 7

What is the distribution for decedent not survived by spouse or issue?

Answer 7

(1) All to parents or surviving parent
(2) If not survived by parents, all to issue of parents (ie siblings and issue of deceased siblings) who take per capita t each generation.

Question 8

What is the default distribution in NY?

Answer 8

Per capita at each generation both intestacy and in a will.

Question 9

What is a “per stirpes” distribution?

Answer 9

The issue of a predeceased child takes the share that predeceased child would have taken. (ex. If A would have gotten 1/3, his two children each get 1/6)

Question 10

What is the most common bar exam trap regarding per stirpes distribution and if ONLY ONE person from first generational level dies?

Answer 10

Same as per capita, use of “per stirpes” language is ultimately a trick.

Question 11

What is a power of attorney?

Answer 11

Written authorization for an agent (known as attorney in fact) to act on behalf of the grantor of the power.

May be general or specific, with as many variations as drafter of power wishes.

**Can be durable or non-durable.

Question 12

What is the difference between a durable and non-durable power of attorney?

Answer 12

Durable Power –> power that extends beyond the grantors incapacity UNLESS it has specific language that it is TERMINATED by grantor’s incapacity.

Non-Durable –> Power of attorney that is REVOKED by operation of law by either the grantor’s death or incapacity.

Question 13

What is a living will?

Answer 13

Generally states individuals desires, should be become terminally ill or be in a persistent vegetative state regarding whether to administer or withhold:

(1) life sustaining procedures
(2) artificial nutrition or
(3) treatment for pain

Question 14

What is the rule regarding mistakes during potential will contests?

Answer 14

Absent suspicious circumstances, it is conclusively presumed that - testator INTENDED will to read, even in light of consequences.

Thus, plain meaning of will will not be overturned by extrinsic evidence.

Question 15

What is a latent ambiguity and under what context will it likely surface?

Answer 15

Definition –> latent ambiguity is a MISDESCRIPTION, error is not evidence by looking at the will.

Likely seen during will contests.

Question 16

True or false: Extrinsic evidence is not admissible to clarify a latent ambiguity.

Answer 16

FALSE.

Extrinsic evidence is admissible to clarify or find the meaning of Testator’s words; Specifically including:

(a) facts & circumstances evidence IS admissible
(b) evidence of testator’s declarations to 3P IS admissible
(c) evidence of testator’s statements to attorney who prepared will IS admissible

Question 17

What result if extrinsic evidence does not cure a latent ambiguity?

Answer 17

Recap –> latent ambiguity = misdescription (error not evident by looking at will)

Result –> gift fails bc of non-ascertainable beneficiary.

Question 18

What is a patent ambiguity?

Answer 18

A patent ambiguity is an OBVIOUS error on the face of the will.

(1) Extrinsic evidence is admissible
(2) Facts and circumstances evidence is admissible
(3) Evidence of testator’s declarations of intent to 3P is not admissible
(4) evidence of testator statements to attorney who prepared will is admissible

Question 19

What is the definition of a conditional will?

Answer 19

Will that expressly provides it will be operative ONLY IF some condition is met.

Argue both ways on exam:

(1) Will is conditional will AND
(2) Reference is merely motive or inducement for making will

Question 20

When are intestacy rules applied to estate?

Answer 20

(1) Decedent left no will or did not properly execute it;
(2) Will does not make a complete distribution of estate or
(3) A distributee successfully challenges the will and the will is denied probate.

Question 21

What is the order of priority for appointment as administrator regarding intestacy?

Answer 21

(1) Surviving spouse
(2) Children
(3) Grandchildren, etc.

Question 22

What is the rule for intestacy distribution for decedent survived by spouse and no children?

Answer 22

IF decedent survived by spouse but not by any children or issue of children, the surviving spouse takes the whole estate.

Question 23

What is the rule for intestacy distribution for decedent survived by spouse and children?

Answer 23

Surviving spouse = $50,000 + 1/2 residuary

Issue = leftover residuary
UNLESS the estate happens to be less than $50,000 then surviving spouse takes whole.

Question 24

What is the rule for intestacy distribution for decedent survived by only children?

Answer 24

(provided no children predeceased decedent) estate passes to children in equal shares.

Question 25

What is the rule for intestacy distribution for decedent survived by children and issue of predeceased children?

Answer 25

Estate passes to “alive” children and the issued of dead children by representation (or per capita) at each generation.

Question 26

What is a good rule of thumb for intestacy distribution along multiple generational levels?

Answer 26

Issue in the same generation will always have equal shares.

Question 27

What is the rule for intestacy distribution for decedent not survived by spouse OR issue?

Answer 27

(1) All to parents or surviving parent

(2) If not survived by parents, all to issue of parents (ie siblings and issue of deceased siblings), etc…

Question 28

What is per stirpes distribution?

Answer 28

Old NY law, where issue of predeceased child takes the share that the predeceased child would have taken, IF ALIVE.

Question 29

What is Per capita distribution?

Answer 29

IN NEW YORK, the default distribution, per capita at each generation in both intestacy and in a will, unless words to contrary.

Question 30

Does NY use “per stirpes” or “per capita?”

Answer 30

Per capita, aka by representation.

Question 31

What is the process for distribution by representation?

Answer 31

(1) Property is divided into as many shares as there are issue at the time generational level at which there are survivors.
(2) All living issue at the first generational level take 1 share each
(3) The shares of deceased issue at the first generational level are combined and then divided equally.

Question 32

What is the key to per capita distribution, or distribution by representation?

Answer 32

Division occurs at first generation with survivors, then assets are combined and divided equally to any issue of pre-deceased individuals from that generation.

Question 33

What is the key bar exam trap regarding per capita AND per stirpes distribution.

Answer 33

“Per capita at each generation” results in the SAME distribution as “per stirpes” IF ONLY ONE person at the first generation level died.

Question 34

What is the general rule regarding the inheritance rights of adopted children and their issue?

Answer 34

Adopted children have full inheritance rights from the adopting family.

Question 35

What is the rule regarding the inheritance rights of a child adopted by a new family?

Answer 35

The child has no inheritance rights from birth parents or other members of birth family.

Question 36

What is the exception to the rule that a child adopted by new family has no inheritance rights from birth family?

Answer 36

Exception = child adopted by the spouse of a birth parent.

Then, that child and the child’s issue can inherit from both adopting parent and either birth parent.

Ex. Princess Diana; Prince Charles and Camilla. If William & Harry adopted by Camilla, they have inheritance rights from Charles (birth father), Camilla (adoptive mother) and Diana’s family (deceased birth mother).

Question 37

What are the inheritance rights of a child adopted by a RELATIVE (aunt or uncle)?

Answer 37

(Special Rule) If the adopted child is related to the decedent by both a birth relationship and an adopted relationship, CHILD INHERITS UNDER BIRTH RELATIONSHIP.

UNLESS the decedent was the adopting parent, then the child inherits under the ADOPTIVE relationship.

Question 38

What is the general rule regarding inheritance by non-marital children?

Answer 38

A non-marital child has full inheritance rights from the mother.

Question 39

For a nonmarital child to inherit from the birth father, paternity must be establish by one of the following ___?

Answer 39

During Father’s Life:

(i) Legitimization by marriage
(ii) Order of filiation
(iii) Father files a witnessed and acknowledged affidavit

(iv) Clear and convincing evidence provided either before or after father’s death (in probate)

Question 40

How can paternity be established by clear and convincing evidence?

Answer 40

(a) DNA Marker Test
(b) Open and Notorious acknowledgment that child is his own (birth certificate or publicly)

Also - participation in school activities, giving gifts, HOWEVER support by itself is not enough.

Question 41

Under what circumstances will a spouse be disqualified from taking their intestate share?

Answer 41

DISMAL

Divorce decree
Invalid Divorce
Separation decree
Marriage is void
Abandonment OR Lack of Support

Question 42

What does the acronym DISMAL represent?

Answer 42

Circumstances where a spouse will be disqualified from taking their intestate share.

Question 43

When the surviving spouse procured a divorce or annulment not recognized as valid under NY law, what result regarding his intestate share?

Answer 43

Intestate share dsiqualified.

Note - the curviving spouse is not disqualified if the DECEASED spouse procured an invalid divorce or annulment.

Question 44

What is the rule regarding separation decrees and the surviving spouse’s intestate share?

Answer 44

Generally a separation decree disqualifies the intestate share if rendered against the surviving spouse.

A mere separation AGREEMENT (not decree) does not result in diqualification of intestate share.

Question 45

If circumstances exist that require the disqualification of surviving spouse’s intestate share, what is the distribution rule?

Answer 45

Assume the surviving spouse predeceased and drop their share to kids or whoever is next in line.

Question 46

True or false: There is no slayer statute in NY.

Answer 46

Slayer statute - rule that prevents killer spouse from inheriting.

TRUE - but not having formal rule doesn’t protect killer spouse, Y creates a constructive trust.

Question 47

What is the common law rule regarding lifetime gift to intestate distributee?

Answer 47

Presumed advancement of intestate share.

A lifetime gift to a child was presumptively an advancement of his intestate share, to be taken into account when distributing the estate at death.

Question 48

What is the NY rule regarding lifetime gifts to intestate distributees?

Answer 48

NY rejected advancement presumption by statute. There is no advancement rule UNLESS proven by:

(1) Contemporaneous writing made at time of gift, AND
(2) Signed by donor or donee.

Question 49

Assume F gave his son A 10 acres of alnd on A’s 25th birthday, and told his other children B and C, “ you’ll receive a similar gift when you turn 25. Two weeks later, F wrote A a letter stating, “I want you to know that the land I gave you is to be considered an advance on your inheritance share of my estate. Signed F.” Two years later F died intestate, survived by his children, without having made gifts to B or C.

On F’s death, the net value of his estate = $300,000 and the land given to A = $30,000.

Should the gift to A be considered an advancement?

Answer 49

NO - we need a contemporaneous writing. Two weeks does not equal contemporaneous.

Question 50

What is the rule regarding disclaimer by an intestate distributee?

Answer 50

Context - no one can be compelled to take property by operation of law.

Rule –> person who disclaims is considered to pre-decease decedent.

Question 51

What is required for a disclaimer to be valid?

Answer 51

(1) In writing, signed and acknowledge (before notary) AND
(2) accompanied by separate affidavit stating no consideration was received for disclaiming, and
(3) irrevocable, and
(4) filed with the surrogate’s court within 9 months from date of death.