Wills Flashcards
(29 cards)
Intestacy - Spouse’s Cut
If no issue, spouse gets everything.
If issue, spouse gets $50K + 1/2 of remaining estate.
“Marriage” = no abandonment or failure to support, and no divorce decree or judgment of separation. Status can also be waived.
Uniform Simultaneous Death Act
Rule: If spouses die w/in 5 days of each other, deaths presumed simultaneous.
Result: Each takes as if other had predeceased them.
Intestacy - Issue’s Cut
If no spouse, issue get everything. Otherwise, 1/2 (estate - $50K)..
Intestacy - Distant Relatives’ Cut
If no spouse & no issue:
- Parents
- Issue of parents
- Grandparents
- Issue of grandparents
Intestacy - Distribution Schemes
NY: “Per capita by representation” approach. Property divided into shares based on sum of living issue + dead issue who have living descendants in the first generation that has living members. Living issue take their share and property recombined. Then process is repeated for next gen using remaining property.
Per stirpes: Property is divided by living & dead issue at each generation (assuming dead had issue).
Modern per stirpes: Like per stirpes but begins at first generation with living members.
Execution Formalities
- Writing
- Signed by testator at the end,
- with testamentary intent,
- usually in witnesses’ presence (they must know it’s a will - “publication”), but OK if T tells them it’s his signature
- and signed by 2 competent witnesses (no age req though). needn’y sign in each other’s presence but must attest to signature w/in 30 days of each other.
NY: When execution supervised by atty w/out interest in will, execution is presumed proper.
NY: Reqs only substantial compliance for probating the will, provided there is C&CE evidence decedent intended it to be his will.
Interested Witnesses
CL: Interested witnesses wasn’t competent to witness the will.
NY: Beneficiary witness is competent, but his gift will be “purged” unless there are two other witnesses who were not beneficiaries. Purged = reduced to the amount he’d get in intestacy.
Holographic Wills
Def: Written in T’s own handwriting. Only allowed in NY for active duty military or civilians during conflict, or mariner at sea.
NB: Become invalid after 1 year from military discharge or, for mariner, 3 yrs after will made.
Revocation
Reqs same capacity to revoke as to execute.
- Subsequent testamentary instrument. If no residuary clause and earlier doc has one = codicil and later doc controls on inconsistent points; if residual clause = new will. Reqs same formalities as execution.
- Destruction w/ intent to revoke. Entire revocations only - not partial - so destruction must be sufficient.
- Operation of law (divorce)
NB: Destruction is presumed if will in T’s possession can’t be found after death.
Revival
Reqs republication of will or a codicil if first will properly executed.
CL rule that revocation of a revoking will revives first will NOT followed.
Types of Dispositions
- Specific = property that can be readily distinguished from other estate prop.
- General = cash.
- Demonstrative = cash from partic source.
- Residuary = everything left over.
NB: Debts of estate are satisfied in reverse order of above.
Lapse
Def = when beneficiary dies before T, CL rule was that gift failed and entered residuary.
NY Anti-Lapse Statute: Gifts to T’s ISSUE or SIBLINGS will not lapse if beneficiary has issue. (EXCEPT if gift conditioned on B’s survival).
Ademption
Def = when specific bequest is gone at time of death. CL rule is B gets nothing.
NY: Allows B to take $ when property sold through no choice of T’s own, or when insurance paid on specific gift after T’s death.
Abatement
Def = reduction of gifts to pay debts of the estate.
T can indicate preferred order. Otherwise, intestate property –> residuary –> general to non-relatives –> gen rel –> specific non-rel –> specific rel.
Elective Share
Spouse can choose elective share over what is in will. Share = greater of $50K OR 1/3 of “net estate.” If 1/3, then reduce it by dispositions passing through D’s will or intestacy, and value of testamentary substitutes for spouse’s benefit.
NB: Can be waived in writing during either spouse’s lifetime.
Homestead Exemption
Certain value of land ($150K - $75K) is immune from creditors for benefit of spouse and children until youngest child reaches majority or death of spouse, whichever happens 2d.
Personal Property Set-Aside
Certain personal property goes directly to spouse or, if none, any minor children.
Includes: family records, books, and DVDs; 1 car ≤ $25K; farm equipment; household furniture and appliances; up to $25K in cash/CDs/accounts.
Gifts to Children
Inter vivos gifts to children can be considered advances on inheritance if parent declares so in contemporaneous writing.
Bars to Succession
- Homicide (unless accidental, self-defense, or insanity)
- Disclaimer (must be in writing - property then passes as if disclaiming party had pre-d’d T)
- Disqualification (b/c of abandonment/failure to support spouse or child, or abuse of child)
Will Contests - Grounds
- Lack of testamentary capacity: burden on contestor
- Insane delusion: a non-religious belief for which there is no reasonable basis AND is the sole but-for cause of disposition.
- Undue influence: mental/physical coercion that “overpowers T’s free will and intent.” Reqs but-for cause. Confid. relationship + suspicious circs = inference of UI, shifting burden.
- Fraud: misreps intended to create gifts T wouldn’t otherwise give. Reqs C&CE.
- Duress: actual threat of physical force
Will Contests - Process
Standing: only potential beneficiaries can contest.
Limitations: “no contest clauses,” which disinherit those who challenge will, are OK in NY. But NY doesn’t consider claims of forgery, to ct’s jx, or challenges by children/incompetents to trigger the clause.
“Surviving Issue”
Def: all lineal descendants except those of living lineal descendants.
Includes posthumously born kids, adopted kids, and bastards (from mom, or from dad if paternity was established during life or father married mother).
Disinheriting
NY allows decedent to disinherit an heir through a proper will expressing that intent. Even if not all property disposed of through the will, disinherited heir is treated as predeceasing testator (but disinherited person’s children still collect).
Noncupative Wills
Def: oral wills. Valid in NY under same circs as holographic wills.
