Trust and Estates General Flashcards Preview

Trust and Estates > Trust and Estates General > Flashcards

Flashcards in Trust and Estates General Deck (207)
Loading flashcards...
1

NY will probate a "will," including foreign wills or domiciliary that created a will in another outside of NY

As long as the will is executed in conformity with the laws of the state of NY or the law of the jurisdiction connected to the testator, even if those laws are less stringent then NY. NY provides the will must be in writing, except in holographic cases

2

Wills executed by a NY domiciliary are valid and admissible to probate in NY provided that

1- The will is in writing
2- It is signed by the testator and the end, and
3- It is executed and attested to in accordance with the local laws of: (a) NY; (b) the jurisdiction in which the will was executed; and (c) the jurisdiction in which the testator was domiciled either at the time of execution or of death

3

Testator's publication of the will

the testator must "publish" the will so that the witnesses are aware they are witnessing the testator signing a will or the testator's signature on the will, but it is the will of the testator they are acknowledging

4

An estate's representative under NY case law

NY allows the estate representative (not the will's beneficiaries) to sue a lawyer for negligent estate planning that resulted in pecuniary loss (estate taxes charged to the estate)

5

NY view on a drafting attorney's negligence in overseeing a will's execution, and the will is not admitted to probate

NY follows the minority view, and does not impose tort liability on the attorney for improper execution and the estate passes under intestacy. Beneficiaries cannot sue because there is no 3rd party privity between the attorney and beneficiaries

If the rule is violated and the attorney does not have the the disclosure document, the attorney can only receive 50% of the actual fees

6

Pursuant to SCPA 2307-a where the attorney who drafts a will is designated executor of the testator's estate

The drafting attorney must disclose to the testator that anyone can be designated executor, and the executor will be entitled to commissions as executor, and the law may be entitled to additional compensation for legal services to the estate.

Disclosure must be made and executed in a separate document (cannot be in the will) that is not easily over looked. The additional document must be signed by the testator and two witnesses

7

SCPA 1407 pertaining to a lost will

States that a lost will can now be proven by either: (1) two witnesses or (2) by a copy or draft of the will which is proved to be true and complete

8

What is the exception that arises under a lost will or non-production of a will

Explanation how it was lost or destroyed but not revoked by the testator. The will may be admitted to probate if the proponents of the will: (1) establish that the will was never revoked by the testator;(2) prove that the will was validly executed, and (3) clearly and distinctly prove all the will's provision through credible testimony

9

When a will that was in the decedent's possession prior to his/her death, and cannot be found among his/her papers and belongings at the time of death is presumed

destroyed. However, the presumption of destruction is rebuttable, even though the assumption is that the decedent destroyed the will and revoked it before his death

10

Will as an ancient document

A will may be admitted into evidence without proof of its proper execution if the instrument is over 30 years old, found in its natural place of custody and unsuspicious in appearance

11

If both witnesses are dead or missing, outside the state or incompetent

The surrogate may admit the will based on proof of the testator's handwriting and proof of at least one witness' handwritten signature, together with other facts sufficient to prove the will

12

Where one witness has forgotten the event or testifies against the execution of the will

The court may admit the will on the testimony of the other witness, and on other evidence sufficient to prove the will

13

Missing Witnesses

If one of two witnesses cannot testify because of death, incompetency, absence from the state, or inability to be found within the state, then the surrogate has discretion to proceed without that witness's testimony and allow the will into probate based on the testimony of a single witness

14

When must the two witnesses be "disinterested"

Surrogate court held that there must exist two disinterested witness at the time the will is executed, not at the time the will is probated

15

If the interested witness is also an intestate distrubutee

The will may be probated, but the interested witness receive only his or her bequest under either the will or intestate share, WHICHEVER IS LESS

16

What is the affect of an attesting "interested witness."

The fact that one attesting witness is also a beneficiary under the will does not void the will, but it will defeat the disposition intended to pass to the necessary interested witness

17

What are the obligations and responsibilities of disinterested witnesses

Must sign after the testator. The witness must know they are signing the testator's will. There is no requirement that the witnesses to a will be adults, just competent. The witnesses must watch the testator sign or be shown his signature, and the testator must publish, make it known that the witnesses are signing a will

18

Attesting witnesses in NY need not sign in the presence of each other, but

Both witnesses must sign the will within 30 days of each other. There is a rebuttal presumption that this 30-day period requirement has been met

19

Witnesses must sign

in the presence of the testator. A will cannot be legally executed under NY laws when the will is not in the presence of the decedent and witness to be identified by the decedent to the witnesses as to the paper itself and as to the testator's signature

20

One of the requirements for a will to be valid it must be witnessed by

two (2) uninterested witnesses

21

Any added provision, alteration, or modification made after the will's execution

Is invalid whether inserted above or below the testator's signature. The timing of the alteration may be established by extrinsic evidence, such as a handwritten change in a will

22

The testator's signature must be subscribed

At the end of the will. The surrogate will totally disregard any language written beneath the testator's signature, except for the attestation clause and witnesses signatures. The surrogate may invalidate the entire will if the will is so incomplete that it cannot be understood without the post-signatuare language or if omitting such language will subvert the testator's general testamentary plan

23

What gives rise to a presumption of compliance with all the statutory provisions when executing a will in NY

Execution is supervised by an attorney; a will's attestation clause; witnesses' self-proving affidavit

24

what particular form or style does the EPTL prescribe when drafting a will?

The EPTL does not prescribe any particular form or style to be used when drafting a will. A will can be handwritten, typed or on a printed form. However, the EPTL does prescribe certain procedural requirements which require strict observance when executing a will

25

A will and its codicil are regarded as

as a single instrument for the purpose of determining the testator's intent

26

What are the only ways to revoke a will

The only way to revoke a will in its entirety is by physically destroying it or executing a subsequent will that is inconsistent with the first, or has a clause in the second will that cancels and revokes the prior will. Physical destruction has to be done by the testator or at the direction and in the presence of the testator, and witnessed by two disinterested witnesses

27

A codicil cannot

Totally revoke a will

28

What is a codicil

A codicil is a supplement to a will. It may add to, partially revoke, alter or confirm the provisions of a prior will by republication. When a codicil is executed, it resets the date of the will to the date of the codicil

29

valid holographic or nuncupative wills become invalid when made by a:

1. member of the armed forces, upon expiration of one year following the testator's discharge from the armed forces.
2- Person who accompanies members of the armed forces upon the expiration of one year from the testator's ceasing to accompany such armed forces; or
3- Mariner while at sea upon the expiration of three years from the time the will was made.

However, if the holographic or nuncupative will was the last will made and the person became incompetent before the statutory period, the wills remain in effect pasted the point of normal expiration

30

NY recognizes holographic wills only if executed

by a domiciliary of a jurisdiction that recognized holographic wills either on the date of the testator's death or on the date the testator executed a holographic will; or with a jurisdiction recognizing holographic wills as valid