Trust and Estates General Flashcards
(207 cards)
1
Q
NY will probate a “will,” including foreign wills or domiciliary that created a will in another outside of NY
A
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
Q
Wills executed by a NY domiciliary are valid and admissible to probate in NY provided that
A
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
Q
Testator’s publication of the will
A
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
Q
An estate’s representative under NY case law
A
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
Q
NY view on a drafting attorney’s negligence in overseeing a will’s execution, and the will is not admitted to probate
A
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
Q
Pursuant to SCPA 2307-a where the attorney who drafts a will is designated executor of the testator’s estate
A
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
Q
SCPA 1407 pertaining to a lost will
A
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
Q
What is the exception that arises under a lost will or non-production of a will
A
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
Q
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
A
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
Q
Will as an ancient document
A
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
Q
If both witnesses are dead or missing, outside the state or incompetent
A
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
Q
Where one witness has forgotten the event or testifies against the execution of the will
A
The court may admit the will on the testimony of the other witness, and on other evidence sufficient to prove the will
13
Q
Missing Witnesses
A
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
Q
When must the two witnesses be “disinterested”
A
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
Q
If the interested witness is also an intestate distrubutee
A
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
Q
What is the affect of an attesting “interested witness.”
A
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
Q
What are the obligations and responsibilities of disinterested witnesses
A
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
Q
Attesting witnesses in NY need not sign in the presence of each other, but
A
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
Q
Witnesses must sign
A
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
Q
One of the requirements for a will to be valid it must be witnessed by
A
two (2) uninterested witnesses
21
Q
Any added provision, alteration, or modification made after the will’s execution
A
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
Q
The testator’s signature must be subscribed
A
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
Q
What gives rise to a presumption of compliance with all the statutory provisions when executing a will in NY
A
Execution is supervised by an attorney; a will’s attestation clause; witnesses’ self-proving affidavit
24
Q
what particular form or style does the EPTL prescribe when drafting a will?
A
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
31
validity of a nuncupative or holographic will in NY
Only if made by: A member of the armed forces or in a warzone or on the eve of embarking to a war zone; A person who serves or accompanies the armed forces while the armed forces are engage in actual military or armed combat; or a mariner at see
32
How does the estate account for missing heirs who have not been hear from in at least three years
After a diligent search including use of the internet, the surrogates can use the presumption that a family member has been heard from for three continuous years, and his/her absence cannot be explained, the surrogate can presume death, and the missing heir died without issue. If the missing heir returns after the surrogates court has presumed the heir is deceased, the heir will not be entitled to collect
33
A holographic will
is one written and signed entirely in the hand writing of the testator. It need not be attested to by any witnesses, except for limited circumstances NY does not permit holographic wills. NJ permits holographic wills
34
A nuncupative will
is an oral will, to be valid the existence and provisions of a nuncupative will must be clearly established by at least two witnesses (fox hole wills)
35
Disqualification by a parent under intestacy laws
if a parent's rights are terminated because of neglect, abandonment, or child abuse, the abusive parent's intestacy rights to the child's intestate estate are also terminated
36
What are letters of administration?
Letters of administration give the administrator authority to act for the decedent's estate and permit the administrator to transfer stock, realty, bank accounts, etc. Letters of administration can be considered power of attorney to act for the intestate estate
37
Who receives letters of administration
Letters of administration "shall" be issued to those persons who are entitled to inherit
38
When is an executor appointed, and by who?
Whenever a decedent dies with a will, letters of probate are issue by the surrogate to the person named as executor in the decedent's will
39
What are the duties of a fiduciary related to wills, trusts and estates?
Fiduciaries must carry out their duties with "utmost good faith."
40
What are letters of probate?
Letters of probate give the executor authority to act for the testator's estate and permit the executor to transfer assets into the executor's name from the deceased. Letters of probate can be considered power of attorney to act for the probate estate
41
What are fiduciaries under the EPTL and SCPA?
Administrators, executors, and trustees
42
Who are ineligible fiduciary parties under the SCPA Section 707
1- Infants
2- Mental incompetents
3- Non-domicile aliens, except if, in the court's discretion, when serving as a co-fiduciary with a NY resident
4- Felons; and
5- Persons who lack qualification because of substance abuse or lack of understanding or who are otherwise unfit; unable to read or write english
43
what is the scope of the surrogate's court subject matter jurisdiction
The surrogates court has subject matter jurisdiction over the "affairs" of decedents, "but has no jurisdiction over disputes unrelated tot he administration of an estate that involve living parties
44
The right to die in NY
Every adult of sound mind has a right to determine what shall be done with his or her own body and cannot be subjected to medical treatment without consent
45
Under the rules of intestacy if there is only a surviving parent, and the decedent has no issue
The surviving spouse receives the entire estate
46
Under the statutory framework of EPTL 4-1.1(a)(1) and 5-1.1 A (a)(2) a surviving spouse is guaranteed
The first $50,000 of the decedents estate, whether the decedent dies with or without a will, but will split the remaining intestate estate with the surviving issue
47
When is a parent disqualified from benefiting through the intestate distribution of a deceased child's estate
If the parent failed to support the child or abandoned the child
48
NY's definition of Death includes
The irreversible cessation of all functions of the entire brain
49
Proper execution of a health care proxy
must be signed and dated by the principal in the presence of two witnesses. the person named as the agent cannot be one of the witnesses
50
A health care proxy cannot authorize
the withholding of nutrition and hydration if the patient's wishes "are not reasonably known and cannot with reasonable diligence be ascertained
51
The proxy agent's decisions are required to use
Reasonable diligence to ascertain the principal's wishes and to make decisions in accordance with those wishes. Consideration of the principal's religious and moral beliefs to the extent those beliefs are reasonably known or the principal's best interest
52
A living will determines
how an incapacitated person is to be medically treated during the period of incapacity
53
The legislature's intent under intestacy statutes
provides default rules for distribution in the absence of a recognized expression of the decedent's intent. The legislature scheme favors surviving spouses and children of the decedent to inherit
54
If an intestate decedent dies with both surviving children or issue, the surviving spouse is entitled to
The first $50,000 of the decedent's intestate estate, but will split the remaining intestate estate with the surviving children--one half of the intestate balance to the surviving spouse, one half to the remaining issue
55
What does "net estate" mean?
It means the remaining part of the decedent's estate less administrative costs, funeral costs, legal fees, and taxes, which are all deducted before the estate is paid out to the legatees or distrubutees
56
What is a will?
A will is an instrument that directs the disposition of one's property upon death
57
who can make a will?
A will can only be made by an adult, someone who is over the age of 18. Anyone who dies under the age of 18, dies intestate
58
What is the effect of a person (related to wild) who dies under the age of 18
The minor dies intestate and minor's estate passes to the minor's parents
59
what are the requirements of a valid will?
SWEPT
1- Must be in writing
2- Signed by the testator at the end
3- Witnessed by two disinterested witnesses
4- The testator must "publish" and make known to the witnesses that it is the testator's will being executed and witnessed
5- The witnesses' know they are signing a will
60
What is dying intestate mean?
it means a decedent did not have a will and therefore, in NY a person that dies intestate, has his/her estate pass "through the intestacy" laws of NY and subject to the the NYS legislatures statutes under the EPTL
61
What are the reasons for dying intestate
If a decedent does not execute a will. If a will is subsequently: Destroyed, Revoked, Deemed in valid for lack of execution, duress/fraud, or lack of mental capacity to execute a will
62
EPTL 4-1.1
sets forth the statutory scheme for distribution property through intestacy. The rules of intestacy are intended to distribute the estate absence of an expression of intent from the deceased, in a manner in which the legislature expects the average testator would deem appropriate
63
When is an administrator appointed and by who?
An administrator is appointed whenever a decedent dies intestate. The administrator is appointed by the surrogates court
64
If a person is unable to communicate his desires due to incapacity, dementia, unconscious, and has not left any written instructions in a living will, the following people, listed in order of priority, can make the medical decision
```
1- court appointed guardian
2- a spouse
3- a domestic partner
4- an adult child
5- a parent
6- a sibling
7- a close friend; or
8- if non of the above, a physician can be the decision maker
```
65
Any intestate property passing to the decedent's issue or siblings passes
by "representation," if all classes of members are alive, then they equally divide the intestate estate. If however, some members of the class have predeceased the decedent leaving issue who survive the decedent, such issue will share the predeceased distrubutee's piece of the intestate estate by representation
66
Anything passing intestacy to great-grandchildren or grandparents (first cousins once removed) shall pass
per capita, and split evenly among the surviving class and the deceased members of the first cousins does not pass to the issue of the deceases class members, being the first cousins once removed
67
A valid will must be SWEPT
```
SIGNED by an adult testator
in WRITING
Signed at the END by the Testator
PUBLISHED
TWO witnesses (who do not have to be adults) must sign, in the testator's presence within 30 days of each other
```
68
DAMN CAR LAW can alter an existing will
```
DIVORCE
AFTER BORN children
MARRIAGE of the testator
NO CONTEST CLAUSE Breach
CY pres of charitable bequests
ADVANCEMENT of a bequest
RENUNCIATION by a beneficiary
LAPSED legacies ( NY has a Anti-Lapse Statute)
ADEMPTION or abatement
WRONGFULLY killing the testator
```
69
If you can BRA2GIT J.P. you will increase your right of election, under Elective Share for a spouse
Jointly held US savings BONDS
50% of decedent's RETIREMENT plan
Shareholder AGREEMENTS entered into after the marriage that restrict sale or testamentary disposition of testator's closely-held corporate stock
ANNUITY payments surviving decedent's death
GIFTS causa mortis
INTER VIVOS gifts, even to charity, exceeding $14,000 if made within the one year period to the testator's death (absent written waiver by other spouse)
Pre-or post-marriage TOTTEN trust bank accounts
Post-Marriage JOINTLY-held bank accounts, stock brokerage accounts, or jointly-held real property or personal property, but only to the extent that consideration was furnished by decedent
PAY on Death Securities
70
A beneficiary that uses I-DROPS is deemed to predecease the testator
```
INTERROREM clause breach
DADS decree
RENOUNCES
Death within ONE HUNDRED and 20 hours from the testator's death
PREDECEASES the testator
SLAYS the testator
```
71
ALIS can use the anti-lapse statute
ANTI-LAPSE
| ISSUE or SIBLING of testator
72
A DADS judgment are
DIVORCE
ANNULMENT
DISSOLUTION or SEPARATION judgment
73
A DADS judgment impliedly revokes the survivorship interest of the former spouse named in TRIP JAW
a TOTTEN trust
a REVOCABLE lifetime trust
a life INSURANCE policy
a PENSION plan (if not inconsistent with federal pension plan law)
a JOINTLY held real property or joint bank account
a power of ATTORNEY, or
a WILL
74
A killer is permitted to acquire property from the victim's estate if the killing was in SIN
done in SELF-DEFENSE
the killer was INSANE at the time of the homicide
the homicide was accidental (NEGLIGENT homicide)
75
Where the decedent died intestate was survived by: Surviving Spouse, and no issue
Then the surviving spouse gets 100%
76
Where the decedent died intestate was survived by Surviving spouse and issue
The surviving spouse gets $50,000 plus 1/2 of the balance and the issue gets other 1/2 by representations
77
Where the decedent died intestate was survived by Issue but no surviving spouse
Issue gets 100% by representation
78
Where the decedent died intestate was survived by no spouse, no issue
Then decedent's parents and siblings are alive, then parents take 100%
79
Where the decedent died intestate was survived by no spouse, no issue, no parents but siblings are alive
Then siblings (or issue of predeceased siblings [nephews and nieces] under anti-lapse] take 100% by representation
80
Where the decedent died intestate was survived by no spouse, no issue, no parents, no siblings, no issue of siblings
The net intestate estate is divided into two equal parts with one part passing to the decedent's maternal grandparent's side and one-part to the paternal grandparent's side of the family [in search of living heirs (grandparents, aunts, uncles, 1st cousins, but only as distant as children of first cousins)]
81
If there are no surviving heirs within the degree of kinship to pass through intestacy laws then the intestate estate
escheats to the State of New York
82
Abatement: EPTL 13-1.3: Interests in the Testator's estate are extinguished by abatement in the following order:
1. the intestate distributees forfeit first; then
2. The residuary legatees, "all the rest, residue and remainder I leave to X and Y"; then
3. General legacies (sums of money); then
4. Specific and demonstrative legacies; and then
5. The last to abate is a disposition to a surviving spouse regardless of whether it is a specific, demonstrative or a general legacy
83
Exempt Property EPTL 5-3.1 means that
Exempt property passes outside of the estate and is not considered part of the estate for intestacy or right of election purposes. Exempt property cannot be claimed by the decedent's judgment creditors.
84
Exempt property passes directly to:
A surviving spouse, or, if there is no surviving spouse, to children under the age of 21.
85
Which property is not an asset of the estate but vests in the surviving spouse or children
1. All housekeeping items, clothing of the decedent, computers, musical instruments, electronic devices, clothing, furniture, appliances, and jewelry unless not to exceed $20,000. This does not include items used exclusively for business purposes.
2. Videotapes, discs, software, religious items, pictures, and books not to exceed $2,500, but only after payment of funeral bills
3. Cash or other personal property not to exceed $25,000 net value; and
5. Domestic and farm animals, feed for 60 days, farm machinery, a tractor, and lawn tractor not to exceed $20,000
86
If the automobile's value exceeds $25,000, the spouse can
take the care and reimburse the estate for the value exceeding $25,000. The spouse can take the value of the car (not to exceed $25,000) in lieu of the car itself.
87
If a testator made a specific bequest of a car to someone else other than the spouse, the spouse can
Enforce the spousal exemption and defeat the bequest, but if the car's value exceeded $25,000, then the excess amount paid back to the estate by the spouse goes to the specific legatee
88
Exempt property (which can total up to $92,500), together with the right of election or intestate right guarantees
the surviving spouse approximately $142,500.
89
How can the surviving spouse's right to exempt property can be specifically waived
It can be waived in a prenuptial agreement
90
The term "issue," is a term of art and it means
Lineal descendants of the person's blood line.
91
You always determine what type of estate for distribution
The "NET" estate
92
When a residuary clause is inserted in the testator's will (all the rest, residue, and remainder of my estate),
it indicates that the testator's strong intent that he/she does not want his/her property to pass under the law of intestacy
93
When a residuary clause names at least two parties (X and Y), and one of the parties predeceases (Y dies before the testator), then
Then Y's 50% of the residuary estate does not pass through the intestacy laws, but is given to X, and therefore X has 100% ownership of the residuary share/estate
94
What is a holographic will
Wills written in the testator's handwriting and only signed by the testator
95
Generally, NY does not allow holographic wills, except
for individuals that are serving in the military, people accompanying the service men in the military (news reports, red cross) but not officially in the military, and individuals on the evening of departure to war
96
What is the time period a holographic will is valid for
1- a holographic will is valid for up to one year after the person is discharged from the military, or if a new will is created. However, if the person becomes incompetent prior to the one year statute, then the holographic will remains valid.
97
When answering questions about the validity of a trust, your answer should include what language
The general rule in New York for a valid will is signed by an adult testator, the will is in writing, signed at the end of the will by the testator, the testator published to the two disinterested witnesses that it is the will of the testator being signed, and it is signed in the presence of two disinterested witnesses in front of the testator. The EXCEPTION in NY is holographic wills (explain the holographic means), or a will that is properly executed in another state and then the person is in NY when they die will be valid
98
Nuncupative wills
a.k.a. foxhole wills, are oral wills that are immediately written down, and are valid in certain jurisdictions, and are part of the exception in NY
99
Any provision appearing under the testator's signature in the will (other then the witnesses signature and attestation clause(
is ignored by the surrogates court even though the writing was on the will, when the will was properly executed. The surrogate court will not accept anything appearing after the signature of the testator
100
Any amendment (not a codicil) after the will was executed or whether inserted above or below the signature
is invalid and will not be accepted by the surrogates court
101
When are the requirements for a third person to sign for the testator
A third person can for the testator but it MUST be (1) at the testator's direction and (2) in the presence of the testator. Therefore, in order to have a properly executed will, in which someone else signs for the testator, there must be four signatures: (1) the person signing the testator's name; (2) the person who signed the testator's name must sign their own name; (3) Disinterested Witness 1; and (4) Disinterested Witness 2
102
Witnesses do not have to sign the will at the same time, but it must be signed by both witnesses
within 30 days of each witness, or not later than 30 days after the first witness signs, the second witness must sign
103
What are the two things that can follow the testator's signature on the will
1- Attestation clause
| 2- Witnesses signature
104
A codicil does what to a will
It either changes part of the will or is an addition to the will, but it also republishes the will from that point. You must execute a codicil in the same formality as a will
105
What are the requirements of witness that attested to a will
1- the witness need to be competent
2- it does not have to be an adult, and
3- a Blind person cannot witness a will
106
RULE: How is an "interested witness" defined
An interested witness is a beneficiary named in the testator's will. At the time of the will's execution the parties need to be disinterested at the moment of the will's execution, which means the witnesses are not receiving any bequest from the will
107
What is the effect of an interested witness's bequest in a will
If the interested witness is a "necessary will witness" then the will is valid and the interested witness forfeits the bequest. This prevents fraud. Therefore, if there are two other non-interested witnesses, the third witness (who is an interested party), super numerary, will not lose the bequest
108
RULE: The exception to the general rule when a will that was executed, and one of the interested parties is a necessary witness, and the interested witness will qualify as an "intestate distributee" (a relative who will benefit if there is no will, that interested party is entitled
or permitted to take the bequest or intestate share, "whichever amount is less."
109
RULE: A necessary witness is not disqualified from
1- taking under a subsequent codicil, naming the witness as a beneficiary, or 2- the interested witness can act as a trustee or executor named in the testator's will, since the fees paid to a trustee or executor are considered compensation for services earned and not a testamentary bequest
110
What are the proper procedures required for an attorney (or someone in the attorney's firm) who drafts a will for the testator, and the testator wants the attorney to be the executor or trustee
The testator MUST acknowledge in a separate document (not the will), signed by the testator and a disinterested witness (no one from the attorney's office can be the disinterested witness), that the testator knows anyone can be an executor, and if the testator uses the attorney as the executor, the attorney will be entitled to two fees, the attorney's fees and executor's fees
111
Failure to comply with the drafting attorney's disclosure requires of being an executor for the testator's will results in
a 50% reduction in the attorney's fees as an executor
112
A will's Incorporation by reference
NY is the minority view, and does not recognize incorporation by reference, which means an "unattested document" does not become part of the will even though the will references the unattested document
113
A will's Incorporation by reference can ONLY occur when
when the will references an "attested document" (such as another will), i.e., is a husband's will referencing his wife's duly executed will
114
What is a pour-over trust
A pour-over trust is a trust that will have assets from a testator's will "pour-over" into the trust. However, the trust MUST be signed and acknowledged in the same manner to record a deed at the time the will was executed.
115
What violates or invalidates a bequest to a pour-over trust
A trust that is not duly executed, or not in existence at the time the will is properly executed. Therefore, if the trust is established after the will, the pour-over provisions in the will, fail and the legacy goes to the residuary beneficiaries.
116
A codicil CANNOT
revoke a will
117
The execution of a codicil may effect
1- Advancements
2- Rights of After Born Children
3- A divorced Surviving Spouse's rights
Because the codicil republishes the will as of the date that the codicil is executed. therefore, it republishes the will as of the date the codicil is executed
118
A will and a codicil are regarded as
a single instrument for the purpose of determining the testator's intent
119
what are the ways that a will can be revoked
A will can be revoked by:
1- Another will, which indicates the revocation of the prior will, or the two wills are so inconsistent that both cannot be probated, and impossible to administer both
2- Destroying the will, cutting, tearing, obliterating
120
What effect does properly revoking a will have on a codicil
A revocation of a will is an implied revocation of all codicils
121
A revocation of a codicil only
revokes the codicil. keep in mind that if the codicil withdrew a legacy, then the withdrawing of the codicil does not "reinstate" the withdrawn legacy
122
Who can revoke a will?
1- the testator
| 2- A 3rd person at the testator's request, and in the testator's presence, heard by two disinterested witnesses
123
What is the presumption when the testator dies, and there is no will found
That the testator revoke the will, however, this is a rebuttal presumption.
124
Revocation of a will MUST be a
complete revocation, and therefore, there is no "partial" revocation of a will or clause by a physical act, such as cutting, the paragraph out, crossing the paragraph out. Partial alteration can only be done by a duly executed Codicil
125
What is an implied revocation of a will
when a subsequent will is duly executed, and it is so inconsistent with the prior will, that there is no way to execute both wills, and the subsequent will "impliedly" revoked the first will because of the inconsistency
126
What is an elective share?
NY Law says you cannot disinherit your surviving spouse, so if the testator excludes his wife, or attempts to disinherit her, then the spouse can "elect" to take a 1/3 "share" of the testator's estate
127
When is an elective share not permitted?
When a spouse specifically waives the right of election, under the elective share rights, in a pre-nuptial agreement or separation agreement. NY COA requires that there is bright-line rule, so the waiver must be in writing (a formal acknowledgment)
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How do you determine the value of a surviving spouses elective share of a decedent's estate
The elective share is increased by any testamentary substitutes
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What is a gift causa mortis
It is a contingent gift based on the person dying, so if the person does not die, then the gift is revoked
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what is the amount that can be gifted, and what amount will be brought back to the estate for elective share purposes
A gift can be for up $14,000, anything above that will be credited back to the estate for the purpose of elective share, unless the surviving spouse waives any right to the amount above $14000
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What is a totten trust
it is a bank account paid on death to another party
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How can you revoke a totten trust?
1- Withdraw the money from the bank account that is left to be paid on the testator's death
2- Bequest in a will that specifically names the bank, amount and another legatee
3-Change the beneficiary at the bank
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RULE: property that is jointly held with a surviving spouse
Gives rise to a conclusive irrebuttable presumption that one half of the consideration was furnished by the decedent, thus only 1/2 of that jointly held asset is brought back to decedent's estate for the surviving spouse's elective share
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Life insurance policies have what effect on testamentary substitutes
Life insurance policies on the testator's life are not testamentary substitutes, and not credited back to the estate for elective share rights
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What is the formula for determining the Elective Share Net amount?
Value of the net probate estate
+ Value of the testamentary substitutes (which includes all the substitutes, including to the spouse)
- The total value of the testamentary substitutes, bequests that the spouse received
= the net amount owed to either the estate or the surviving spouse
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RULE: How does the court determine what the legatees are obligated to pay to the elective share amount
To determine how much each beneficiary must contribute to the surviving spouses elective share the surrogates court will require each beneficiary to contribute "ratably" (proportionately)
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RULE: When must a surviving spouse exercise her right of election, and how
A surviving spouse must exercise her right of election by serving the estate by filing the election with the surrogates court within six months from when the estate's executor / administrator is appointed but not later then 2 years from the decedent's death. The surrogates court has discretion to extend this time period, but no later than 1 year from when the estate's representative was appointed
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How does a divorce, allulment, dissolution, separation agreements of a marriage effect the testator's estate
Divorce is when the marriage breaks down irretrievably and the spouse is no longer entitled to any part of the spouses estate either intestate or testamentary
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RULE: What is the rule applied to third party institutions that pay benefits to surviving spouse
A third party is not liable for paying benefits to a surviving spouse, if the testator either divorced, separated or dissolved the marriage, but did not give the third party written notice, and properly served notice under CPLR 308, the 3rd party is not held liable for paying out the benefits. The estate has to proceed against the party that received the benefits
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Lapsed Legacies RULE
is a Bequest in a will that fails (Lapses) if a named beneficiary dies before the testator. The general rule of lapse legacies, is that the beneficiary dies before the testato
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A bequest in a will "lapses" if the named beneficiary does any of the following:
1- violates the "interroram clause"
2- the bequest was "renounced"
3- The beneficiary did not survive the testator by one-hundred twenty hours
4- The Beneficiary predeceased the testator
5- The slayer rule, the beneficiary does not benefit from his wrong doing
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What is an interroram clause
It states that if anyone who receives a testamentary gift contests the validity of the will for fraud, capacity, execution, and loses the challenge will forfeit the testamentary gift
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What is the "exception" to the Anti-Lapse legacies, in the anti-lapse statute.
The anti-lapse statute involves ONLY the bequests made to the testator's issue or siblings, and these bequests do not lapse, if the siblings or issue of the testator died after the execution of the will, but before the testator. Therefore, the legacy to the sibling or issue "drops down" to the predeceased beneficiaries estate
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When writing the essay portion of a trust and estate question on the NY Bar, the answer should always include
The general rule in New York, under the EPTL, is that ...
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When writing the essay portion of a trust and estate question on the NJ Bar, the answer should always include
The general rule under the Uniform Probate Code, is that
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What is the general rule when a gift lapses
The general rule in New York, under the EPTL, is that if a beneficiary predeceases the testator, the gift to that beneficiary lapses and falls into the residuary estate
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What is the exception in NY to the general rule when a gift lapses?
An exception is found in New York's anti-lapse statute, which provides that if the beneficiary is a sister, brother, or issue (descendent) of the testator and the beneficiary leaves issue, then the gift does not lapse but will be shared by the beneficiary's issue per capita at each generation
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What is the method to renounce a testamentary gift?
The rule in New York, under the EPTL, is that a beneficiary who validly renounces, in writing, his/her interest in the testator's estate will be treated as though he/she predeceased the testator for the purpose of executing the will. The general rule in New York, under EPTL, is that if a beneficiary predeceases the testator, the gift to the beneficiary lapses and falls into the residuary estate. However, an exception is found in New York's anti-lapse statute, which provides that if the beneficiary is a sister, brother, or issue (descendent) of the testator and the beneficiary leaves issue, then the gift does not lapse but will be shared by the beneficiary's issue per capita at each generation
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What happens to the disposition of personal property that was bequest to a beneficiary who died simultaneously with the testator
NY has adopted the Uniform Simultaneous Death Act (USDA) that applies when a will does not contain a provision if the testator and beneficiary have a simultaneously. Under the USDA, if both parties die within 120 hours of each other than both parties are treated as predeceasing in the other's will. The anti-lapse statute protects a bequest when the intended beneficiary who died simultaneously
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Can a testator bequest the residue of his/her estate to a trust in his/her will
The rule in New York, under the EPTL, is that reference by incorporation is impermissible documents referred to in the will must be executed with the same formalities required of a will in order to be valid. An exception exists for a pourover gift made in a will to a trust.
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What are the requirements for a pour-over trust to be valid in a will?
The requirements of a pour-over trust are that the trust was validly executed, the trust was revocable, and the trust existed before (or was created simultaneously with) the will
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What is the rule in NY when a will fails to distribute all the property?
The rule in New York, under the EPTL, is that when a will fails to properly distribute all property, there is a partial intestacy. Any property not accounted for in the will (including the residuary estate) will be governed by the intestacy statutes in New York under EPTL 4-1.1.
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Ademption
a specific disposition is a bequest of a specific identified item of the testator's property, and the specific bequest is no longer available because it was lost, destroyed, sold, or given away. Ademption only applies to a specific legacy
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What is the exception to the rule of Ademption
To the extent the sale proceeds can be traced and are still in existence, then the proceeds are paid to the specific legatee, when the testator is incompetent and the guardian sold the bequest to fund or otherwise use the funds
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What are after born children?
After born children, include marital children, non-marital children or adopted children who are born/adopted after the testator executed the will
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What is the general rule for an after born child's inheritance rights?
if the testator's children are born after the testator's will was executed, and the testator does not have any other children, the after born child is entitled to an intestate share of the estate
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If the testator had children at the time of the will's execution, and provided for those children, then had an after born child, what are the after born child's inheritance rights
The after born child will share in the other children's bequest "ratably"
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If the testator had children at the time of the will's execution, and DID NOT provided for those children, then had an after born child, what are the after born child's inheritance rights
Any after born child is not entitle to share in the testator's estate
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Non-marital children's rights
1- is entitled to inherit by intestacy through a testamentary bequest
2-Anti-lapse statute applies
3-Can sue for a parent's wrongful death
4- Biological father can be proven through a paternity test; father filed a signed acknowledgement; paternity is established by "clear and convincing evidence" that is the "father openly and notoriously acknowledged the child as his own.
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If a codicil is written after both a will was executed, and then a child was born subsequently, what happens to the status of the after-born child
A codicil will or can change the status of an after born child, and the child is no longer considered an after-born child, and the after-born child is not entitled to the intestate share because the codicil is "providing" for the after-born child
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What is the rule for treating marital children and non-marital children
Non-marital children are treated exactly the same as marital children, thus whenever an instrument refers to "issue, children, grandchildren, decedents, heirs" the court will construe the terms to include adopted and non-marital children
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When a question is posed about the effect of the will being duly executed and subsequently a beneficiary dies prior to or at the time of the testator's death, the rule paragraph should state the following:
Under the general rule under the EPTL is that the pre-deceased legatee's estate is not entitled to receive a bequest from the testator. However, the exception to the general rule, is NY's anti-lapse statute. The anti-lapse statute allows a predeceased family member (siblings and their issue) gift not to lapse, but pass to the relatives issue. Here, the bequest does not lapse. Therefore, it will pass to the testator's siblings issue.
Always check the anti-lapse statute when you an fact pattern has the testator's siblings dying before the testator
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How is a renunciation treated?
Under the EPTL, a renunciation is treated as if the person (legatee or heir) predeceased the testator, which allows the gift to pass to pass back to the estate and then to the next legatee who is lawfully entitle under the will or statutes.
When the anti-lapse occurs and the bequest "falls to the next generation, the representation or share is passed."
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When you have a renunciation in a fact pattern by a sibling or sibling's issue, you have to consider what other rule?
Under the EPTL, you want to check NY's anti-lapse statute
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What is the procedure to renunciate?
1- The renunciation must be made in writing;
2- The renunciation must occur no later than 9 months after the testator's gift
3- The renunciation must be in writing
4- The renunciation must be filed with the Surrogates Court
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What is the rule of law in NY on how a share will pass from one generation to the next under the anti-lapse statute, or if the testator does not include the intent on how to pass to the next generation
Under the EPTL, in NY the share will pass by either representations, per capita, or NY style per stirpes
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What is the requirement for a legatee or heir to receive a bequest in NY
The general rule in NY under the EPTL, the legatee or heir must survive the testator by 120 hours. However, the exception to the general rule in NY is that if the estate will escheat to the State, the 120 hour survival requirement will not be applied.
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The anti-lapse statute does not apply to what situation and legatees?
In NY under the EPTL, the law does not apply the anti-lapse to bequests given to friends and parties that are not "siblings or issue of siblings." Therefore, a friends bequest would lapse if the friend died with the testator or prior to the testator, but subsequently after the will was executed.
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How do you determine if a gift of residue granted in a will to a trust is valid? In other words, is the trust a valid "pour-over" trust?
Under the EPTL, the court has to first determine if the will was properly executed. A will in NY must be 1- signed by the testator at the end of the will, 2- it must witnessed by two disinterested parties, 3- it must be known to the witnesses, that they the are signing the testator's will, so the testator must publish the will, 4- and must be in writing.
The second step is to determine if the trust under the EPTL was properly executed. In NY a trust must be executed in the same manner as a will and the next step is the trust must be funded (res/property put into the trust).
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What is the rule of law in NY regarding an income trust?
Under the EPTL an income trust will only pay out the income to the income beneficiaries. However, the exception holds that in some instances, the trustee can invade the principal of the trust. One of the exceptions is for "necessities" of the income beneficiaries.
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What is the doctrine of Cy Pres?
Under the EPTL, Cy Pres addresses bequests to charities in a testator's will. Cy Pres, generally, allows a court the discretion to allow the trust for the charity to be paid to similar or like charities, if the testator's choice of charity is no longer in existence. Trusts for charities can run in perpetuity.
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How does the surrogates court, generally, interpret the meaning and purpose of a residuary clause
The residuary clause implies that the testator DID NOT want his estate to pass through the laws of intestacy
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Will as an Ancient Document means that
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 (e.g., among the decedent's papers or in her attorney's safe), and unsuspicious in appearance.
An ancient will can be admitted to probate without proof of the witnesses' handwriting
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Normally, if an attesting witness has predeceased the testator, what steps will the court generally take.
The Surrogates Court, normally, where the attesting witnesses have predeceased the testator, their signatures must be proven through evidence of their handwriting.
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The Testator's Publication of the WIll must include
Uncontroverted proof that the attorney-draftsman announced to the other subscribing witnesses, in decedent's presence, that the decedent was executing a will is sufficient to satisfy the requirement of an express declaration.
Under case law, in a limited number of exceptions, although a decedent did not expressly request that either witness sign the will, such a request may be inferred from her conduct and from circumstances surrounding execution of the will. Those circumstances are limited, which include the request made by the attorney-draftsman, in the presence of the decedent and with her silent permission and approval, that the witnesses sign the will.
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Inconsistent acts by the testator has what effect on a will?
Any conveyance, settlement, or other act of the testator wholly inconsistent with a testamentary disposition, revokes that disposition
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What is the Doctrine of Dependent Relative Revocation?
The Doctrine of Relative Revocation, also known as conditional revocation, is an English rule followed in the U.S. and in New York, and it is primarily used to avoid intestacy where intestacy was not the Testator's intent.
The doctrine frequently arises where the testator marks-up an existing valid will, indicating an intent to draw a new will, but the new will either is not drawn or is not properly executed. In such a case, the court may revert to the original will to avoid intestacy
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Mere notations on a will have what effect on the will?
Mere notations on a will that do not obliterate or cancel the will are sufficient to destroy or revoke the will.
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Where a testator removes one page and, inserts a new page, replacing the page of the will has what effect, and how does the court handle the page replacement
The Surrogates Court will not recognize the change because (1) there can be no partial revocations of a will in NY, other than a document executed with the formalities of a will; and (2) Dependent relative revocation, where a will is altered in whole or part, the attempt to revoke Will #1 is dependent on the validity of Will #2.
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Incorporation by reference in NY
Is not recognized, thus an unattested paper of a testamentary nature cannot be take as part of the will even though referred to expressly by the will. The exception in NY is that the incorporation by reference is to an "attested" document, such as a trust or spouse's duly executed will.
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What is the purpose of probate?
the purpose of a probate proceeding is to settle every possible pecuniary claim so that title to the assets of the state passes to the rightful beneficiaries free and clear of adverse claims.
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Under NY Law when must the Attorney General be contacted on matters related to probate matters?
The New York Attorney General is required to be contacted (1) if there are no known distributees (escheat), and (2) if there are charitable beneficiaries.
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The Right of Election in New York, generally holds that
In New York, a surviving spouse cannot be disinherited. A surviving spouse is entitled to at least $50,000 or one-third of the decedent spouse's net estate, whichever amount is greater. EPTL 5-1.1
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The elective share entitles the spouse to
seek an elective share of the "net estate," including all property wherever situated passing outside of the will by reason of the spouse's death ("testamentary substitutes").
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Where the surviving spouse elects against the estate, in other words, the surviving spouse enforces his/her rights under the elective share statute
The spouse receives the 1/3rd share outright and all legatees including those receiving testamentary substitutes, contribute ratably, i.e., proportionately, to the elective share.
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What is the statute of limitations in regard to a spouse taking under his/her right of elective share?
A surviving souse has six months from the appointment of an executor by the surrogate to exercise his or her right of election, but not later than two years after the decedent's death. The Surrogate has discretion to excuse a late filing, but if more than twelve months have elapsed since the issuance of letters or more than two years have passed since the decedent's death.
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Waiver of right under EPTL 5.1-1-A(e)(2)
A spouse, prior to or during the marriage can waive his or her own right of election or can drastically limit the right of election (e.g., prenuptial, nuptial, or separation agreement), but the agreement's signatures must be acknowledged in the same formal way as required for recording a deed.
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What is the "implied waiver" related to spouses under the EPTL
A surviving spouse loses the right to elect against the deceased spouse's estate if the surviving spouse abandoned the other spouse and the abandonment continued until the abandoned spouses death. EPTL 5-1.2(a)(5). Also, if the surviving souse had the duty to support the other spouse and he or she failed or refused despite having the ability to do so, then the right of election as well as the right to intestacy is waived by law. EPTL 5-1.2(a)(6).
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Creditor's rights to testamentary substitutes
Creditors have access to non-probate assets if the decedent maintained the power to dispose of those assets during his or her lifetime. Life insurance proceeds, however, are protected from creditors of the decedent's estate by Insurance Law Section 3212(b).
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Property left in an instrument to "issue," such issue take by
"Representation. EPTL 2-1.2. Distribution passes "by representation" in the following way: members of the nearest generation each receive one share, and the remaining shares of predeceased members will be combined among the issue in the next generation.
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For a renunciation to be effective:
1. The renunciation must be in a signed and acknowledged writing filed with the Surrogate's Court within nine months from the date of the death, or to renounce a future interest, nine months from when a future interest created in the will becomes a present possessory interest (after the life estate ends)
2. The renouncing party must not have accepted the property or any of its benefits;
3. The renunciation must be accompanied by an affidavit that the renouncing party has not and will not receive any consideration from a person whose interest will be accelerated by the renunciation, unless such payment has been authorized by the Surrogate;
4. Where the interest passes to an infant, the disclaimer can be made within nine months after the infant reaches the age twenty-one. In order for a guardian to gain the Surrogate's approval to renounce an infant's interest, the guardian must be able to show that renunciation will somehow benefit the infant, otherwise the infant's renunciation will not be approved.
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Abatement is...
Abatement is where the altruistic wishes of the testator exceed the size of the testator's net estate. Abatement means to decrease. It describes how to deal with situation where a testator makes so many bequests that they exceed the total amount available for distribution
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When a testator's bequests exceed the assets of the estate, the available funds will be distributed in the following manner:
1. Funeral expenses and administrative fees (e.g., lawyer's and executor's fees) of the estate
2. Dispositions to a surviving spouses; then
3. Specific legacies (bequests of certain items of the testator's property); then
4. Demonstrative legacies. These are bequests of funds or stock payable out of a particular fund or security, "140,000 out of the sale of my IBM stock."
5. General dispositions (sums of money); then
6. Residuary legacies ("all the rest, residue, and remainder"); then
7. Intestate property (distributive shares not disposed of by will).
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For purposes of abatement, a demonstrative legacy is treated as a
Specific legacy
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For purposes of ademption, general legacies and demonstrative legacies
are treated alike
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Ademption, under the general rule, is
where bequeathed property (e.g., watch, car, or real estate) is transferred or conveyed away prior to the testator's death (e.g., gift, sale, lost, destroyed, or stolen), then the bequest "adeems" and the legatee takes nothing.
This rule relates only to specific legacies and doe snot apply to general legacies and demonstrative legacies.
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What are the exceptions to the general rules on ademption?
1. Where the testator, after executing a will, becomes incompetent and his guardian ad litem sells an asset and uses the proceeds to administer the estate, any remaining proceeds from the asset will go to the specific legatee.
2. When property of a specific legatee is damaged or destroyed (including condemnation through eminent domain) prior to the testator's death and the proceeds of an insurance policy ( or eminent domain award) are "PAID AFTER" the testator's death, then the proceeds of that insurance policy (or award) shall pass to the specific legatee. Note that if the property is destroyed after the testator's death, the specific legatee clearly is entitled to the insurance proceeds thereon. If there was no insurance on the property, the specific legatee may have a cause of action against the executor of the estate for negligence in failing to protect and insure the assets of the estate.
3. Where a testator enters an executory contract to sell the property but dies before the contract closes, then, under the doctrine of "Equitable Conversion," The specific legatee succeeds to the grantor's legal rights to receive the purchase price of the property when title closes subject to the equitable rights of the buyer for specific performance of the contract. Thus, the legatee will take the net proceeds of the sale in lieu of the specific property bequeathed.
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Elements of a trust
1. a designated beneficiary;
2. a trustee (who may be the same person as the beneficiary under EPTL section 7-1.1);
3. a designated fund or property (known as the "corpus" or "principal");
4. an effective actual delivery of that fund or property passing title to the trustee; and
5. a lawful purpose
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A Totten Trust is
Is when a deposit by one person of his own money in his own name as trustee for another. It does not establish an irrevocable trust during the lifetime of the depositor. It is revocable at will, until the depositor dies or completes the gift in his lifetime. If the depositor predeceases the beneficiary, "an absolute trust was created as to the balance on hand at the death of the depositor."
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When are Totten trusts liable for such expenses of the estate?
When an estate is insolvent and there are outstanding debts, judgments, administration and funeral expenses, since a person may not cut off the rights of creditors through non-testamentary transfers when his or her own estate is insolvent
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When can a Totten trust be defeated?
1. In the depositor's will, but only by specific direction in which the will describes the specific account as being in trust, and naming the account beneficiary, and financial institution
2. by the depositor closing out the account and withdrawing the funds
3. by writing where the signatures are acknowledged with the same formalities for recording a deed (e.g., a spouse's separation agreement), which specifically names the account, beneficiary, and financial institution
4. If the beneficiary dies before the grantor
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Gifts- Joint Bank Account - Presumption of a Gift
When a depositor opens a joint bank account or joint brokerage account, and the signature contains "survivorship" language, there arises a rebuttable presumption, under Banking Law 675, that the person opening such an account intends to make an immediate gift of 50% of each deposit (a "moiety") to the other person opening such an account, and also, "that the parties intended to create a joint tenancy with rights of survivorship" one party dies, 100% of the money remaining in the account passes to the survivor.
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Gifts--Required Elements
To prove the existence of a valid inter vivos gift, the donee must establish by clear and convincing evidence making it highly probable that a gift has been made:
1- "Acceptance" of a the gift by the donee, which the law presumes unless the facts clearly demonstrate non-acceptance
2- The donor's "intent" to make an immediate, present gift; and
3- Effective "delivery" that places that gifted property beyond the donor's control
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In Terrorem Clauses
A in terrorem clause is aptly phrases since it is intended to strike terror into the heart of a wills beneficiary if they try to contest the validity of the will. The clause simply provides that if a trust or will beneficiary attempts to contest the will's validity (e.g., alleging lack of testamentary capacity, improper influence or lack of proper execution of the will) then the beneficiary will forfeit the will's bequest. The surrogate who finds a breach of this interim clause will treat that beneficiary as immediately predeceasing the testator
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Rules of Construction
1- In constructing a will, the intention of the testator must be our "absolute guide";
2- It is always the effort of the court to sustain, if possible, the will of the testator and to give force and effect to that scheme that he has devised for the benefit of those depending upon him
3- that the intent is to be ascertained 'not from a single word or phrase but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed"
4- The testator is presumed to have intended to dispose of the whole estate by will, and did not intend intestacy as to any part of it
5- The presumption against intestacy is particularly weighty where the subject of the gift is the residuary estate
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Will challenges are based on
1- Fraud, duress, undue influence; or
2- Improper execution; or
3- Testamentary capacit
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Testamentary capacity means (informally)
That the testator had (1) a sound mind; (2) knew who the beneficiaries were; (3) understood that they were creating a will; (4) understood the value of his/her assets
