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Wills Flashcards

0
Q

NY testamentary gifts called . . .

A

Dispositions

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1
Q

Valid will requirements

A
  1. 18 and competent
  2. Sign at end of document
  3. In presence of 2 Ws or acknowledge his sig to 2 Ws
  4. Ws must sign w/n 30 days of each other
  5. Testator must tell Ws it’s a will
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2
Q

Four kinds of NY dispositions

A

Specific
Demonstrative
General
Residuary

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3
Q

Specific disposition

A

Gift of specific property

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4
Q

General disposition

A

Money from the general estate

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5
Q

Demonstrative disposition

A

Money from a specific source.

- shortfall made up from general funds

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6
Q

Priority of debts owed by estate

A
  1. Specific
  2. Demonstrative
  3. General
  4. Residual
  5. Intestacy
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7
Q

NY Anti-Lapse Statute

A

No lapse if testator’s sibling/issue but only if the predeceasing beneficiary has issue of his own.

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8
Q

If residuary beneficiary lapses . . .

A

Estate goes by intestacy

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9
Q

Intestate share of SS

A
  1. No issue –> Everything

2. Issue –> 50K + 1/2 of the rest of the estate

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10
Q

Abandonment precluding SS intestate share

A
  1. Voluntary
  2. Permanent
  3. W/o consent of abandoned spouse
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11
Q

NY simultaneous death

A

If spouses die 120 hrs (5 days) of each other, they are presumed to have died simultaneously

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12
Q

NY Intestate share of issue

A

Per capita at each generation
“equally near, equally dear”
- Divide, Distribute, Re-bundle, Divide Again

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13
Q

Who count’s as issue

A
  1. Natural children
  2. Post-humously born children
  3. Adopted children
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14
Q

When can adopted child inherit through natural parent?

A
  1. Decedent was the adopted child’s grandparent or descendant of grandparent
  2. Adoptive parent is married to child’s bio parent
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15
Q

When can wedlock child inherit from father . . .

A
  1. Marriage - F later married bio mom
  2. Behavior - F held out child as his own
  3. Blood test - while F alive
  4. Adjudication - while F alive
  5. Writing - F made doc acknowledging paternity
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16
Q

Intestate priority of remote collaterals

A
  1. Parents
  2. Issue of parents
  3. Grandparents
  4. Issue of grandparents
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17
Q

NY purging statute

A

If W is a beneficiary in the will, W’s share is purged (in excess of W’s intestate share)

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18
Q

Modifications to a will

A

Codicil

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19
Q

Valid codicils

A

Must comport with all will formalities

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20
Q

Modification of will act formalities

A

Integration
Incorporation by reference ( NOT NY)
Acts of independent legal significance

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21
Q

Will substitutes

A 
Revocable trusts
Pour over wills
Bank accounts for another's benny
Ks w/ payable on death provisions
Life Insurance 
Joint tenancies 
Totten trusts
Gifts causa mortis
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22
Q

Subsequent will vs codicil

A

If a later will is not entirely inconsistent w/ prior will, it is only a codicil

23
Q

Methods of will revocation

A
  1. Subsequent testamentary instrument
  2. Divorce
  3. Physical act
24
Revocation of a codicil
Revives original will
25
Revocation by physical act
1. Any act of destruction 2. Material portion 3. W/ intent to revoke
26
Presumption of destruction by physical act
1. Will last in testator's possession | 2. Cannot be found after death
27
Ademption
Disposed property no longer in estate at time of death
28
3rd party revocation by physical act
1. At testator's direction 2. In testator's presence 3. Proved by 2 Ws
29
Court avoidance of ademption
1. Interpret the disposition as general instead of specific | 2. Treat extinction as change in form not substance
30
Protections for a SS
1. Homestead exception 2. Personal property set-aside 3. Elective share
31
Elective share
50K or 1/3 of the net estate, whichever is higher
32
Lifetime gifts to children
Treated as advance against inheritance if donor-decedent demo'd intent in contemporaneous writing
33
Elective share net estate
- probate property - Gifts made in contemplation of death - Joint accounts - Joint tenancies - Revocable trusts - Power of appointment - Money in a deferred comp plan, pension, profit-sharing plan, stock bonus plan, death benefit plan - Any transfer of property made w/n 1 year to extend he didn't get adequate compensation *SUBTRACT DEBTS/EXPENSES
34
Pretermitted Children Rule
No kids --> intestate share | Kids --> share of gift left to earlier kids
35
Bars to succession
1. Homicide 2. Disclaimer 3. Disqualification
36
5 attacks of testator's mental state
1. Capacity 2. Insane delusion 3. Undue influence 4. Fraud 5. Duress
37
Capacity
Capacity (not actual knowledge) of: 1. Nature of act 2. Nature, character, and value of property 3. Natural objects of his bounty 4. Fact that he is executing a will 5. Plan of attempted disposition
38
Result of lack of capacity?
Entire will is void
39
Insane delusion
belief re: world w/o factual/reasonable basis that testator has despite reason/evidence to contrary
40
Presumption Undue influence
Special rel + suspicious circumstances
41
Suspicious circumstances
unnatural disposition, will made in haste/secrecy, weakened condition of T
42
Fraud
1. Misrepresentation 2. Intending and causing 3. Disposition T wouldn't otherwise have made
43
Remedy of Fraud & Undue Influence
Prop held in constructive trust for proper beneficiaries
44
Exceptions to no-contest provision
1. Forgery claim 2. Claim on behalf of child/incompetent 3. Jx objection
45
Durable power of attorney
power to make legal decisions in the event of incapacity
47
Power of atty terminates upon . . .
1. Death of P 2. Revocation by P 3. Incapacity of P (if not durable) 4. Agent resigns, dies 5. Court revocation 6. Purpose is completed
48
Elective share non-probate assets (key inquiry)
Whether the testator operated sufficient control during life
49
Notable exclusions from net estate in elective share calculations
Life insurance & irrevocable transfers - Pre-nuptial agmts too
50
Anti-Lapse Class Gift Rule
If a disposition is to a class of people, instead of individuals, and 1 dies, gift goes to remaining class members --> Testator must have been group-minded
51
Extrinsic evidence
NY allows extrinsic evidence to resolve ambiguity or mistake
52
Partial Revocation by physical act
NY does NOT recognize
53
Republication by codicil
Executing a codicil will republish a will as of the date of the codicil - a strong presumption (but a strong one)
54
Dependent Relative Revocation
If a T revokes a will based on some material mistake about the will or about the effect of revocation - then revocation may be deemed ineffective --> intent to revoke is critical here
55
Adopted kids and anti-lapse
adopted-out child will not take in a class gift from a birth relative unless that child is specifically named in a biological ancestor’s will or the gift is expressly made to issue including those adopted out of the family

Bar Exam (18 decks)

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