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Flashcards in Wills Deck (81)
1

What is the purpose of NY's anti-lapse statute?

General rule = If a benefiicary DIES during the testator's lifetime, the gift to the beneficiary LAPSES (i.e. fails), UNLESS the gift is SAVED by an anti-lapse statute  

2

What are the 2 reqs for the application of NY's anti-lapse statute?

In NY, a gift does NOT lapse, but VESTS in the deceased beneficiary's ISSUE IF: 1) the predeceased beneficiary was the testator's ISSUE or NATURAL SIBLING (i.e. brother/sister); AND 2) the predeceased beneficiary LEAVES an ISSUE that survives the testator NOTE: Does NOT apply if condition precedent (i.e. “if he survives me”) is used If "adopted-out" child is SPECIFICALLY listed as beneficiary in Will → adopted-out child’s issue can take under anti-lapse statute REMEMBER: normally adopted out children have NO inheritance rights from the birth parents OR family DOES NOT APPLY TO SPOUSE (even if the predeceased beneficiary leaves a will giving everything to that spouse!)  

3

What is the effect if a beneficiary "disclaims" a gift?

Same as w/ intestacy → a disclaimant is CONSIDERED to have PREDECEASED the testator NY's anti-lapse statute applies IF (i) the disclaimant is an ISSUE or SIBLING of the testator; AND (ii) the disclaimer leaves a surviving ISSUE → gift goes to issue

4

What is the Surviving Residuary Beneficiary Rule?

Absent CONTRARY provision in the Will... When RESIDUARY is devised to 2 or more persons & gift to 1 fails/lapses (& anti-lapse does NOT apply) → then OTHER residuary beneficiaries take the entire residuary estate, in proportion to their interest in the residue NOTE: if anti-lapse statute APPLIES, then the gift passes to the ISSUE   

5

What is the rule re: gifts to a "generic class", which has a predeceased member?

Absent a contrary prvn in the Will.... If the Will makes a gift to a group of persons as a "generic" class (i.e. gift to "children", "siblings", etc)  AND some members of that group PREDECEASE the testator → the SURVIVING class members TAKE in equal share BUT, IF NY's anti-lapse statute applies (i.e. member is ISSUE or SIBLING of testator AND leaves a surviving issue) → the share GOES to the predeceased member's ISSUE NOTE: if the gift was "INDIVIDUALLY" named (i.e. not as a class), then the lapsing share will go to the RESIDUARY (unless anti-lapse applies)

6

What 2 groups CANNOT take part of a class gift?

The 2 groups are... 1) "Adopted-out" children: if a class gift is to "children", ANY adopted out children DO NOT take as part of the "class" (REMEMBER: adopted out children have NO inhereitance rights from birth parents OR birth family) BUT, the adopted-out child WOULD take as a class member in the adopting family 2) Later-born class members (after testator OR life tenant dies) are NOT a part of the "class" (i.e. the Rule of Convenience) BUT, children in GESTATION at time of testator's or life tenant's death ARE class members (Womb Rule)

7

What is the rule when a testator AND a beneficiary die simultaneously?

Revised Uniform Simultaneous Death Act (RUSDA) Absent a Will prvn to the contrary... If a BENEFICIARY and testator die simulatenously (or almost simultaneously) AND there is insufficient CLEAR AND CONVICING evidence to prove the beneficiary has SURVIVED the testator by MORE THAN 120 HRS (5 DAYS) → PRESUME that the BENEFICIARY has PREDECEASED the testator  IF (assumed) predeceased beneficiary is an ISSUE or SIBLING of the testator, then NY's anti-lapse statute applies (assuming the predeceased beneficiary has left a surviving issue)

8

What is the rule for distributing jointly-held property when both joint tenants die simultaneously?

Revised Uniform Simultaneous Death Act (RUSDA) Assuming both dies w/in 120hrs (5 days)... STEP 1: RUSDA **theoretically** SEVERS the right of survivorship in the joint property, rendering it a tenancy in common STEP 2: Property of a SPECIFIC co-owner passes as though HE survived the OTHER co-owner, so the property would go to HIS issue NOTE: the distribution would be the SAME for tenants by the entirety and joint bank accounts E.g. H & W die simultaneously & JT w/ right of survivorship.  H has 2 children, A & B, from a previous marriage, & a child w/ W.  TIC - A, B, & C each take 1/3 of H’s half and then C takes W’s half. 

9

What is the effect on a Will if the testator marries after Will is executed?

Marriage AFTER the execution of a Will has NO effect on the validity of the Will, BUT it MAY affect gifts and dispositions under the Will NY law provides for a "right of election" so that a testator CANNOT disinherit his spouse

10

What is the effect on a Will if the testator "unmarries" after Will is executed?

If a ct renders a FINAL decree (i.e. NOT in process) of divorce, annulment or separation (i.e. NOT an agmt) AFTER the execution of a Will, ALL gifts and fiduciary appointments in favor of the former spouse are REVOKED by operation of law EFFECT = read the Will as if the former spouse has PREDECEASED the testator property that WOULD have passed by operation of law are OVERRULED (i.e. a former spouse couldn't take an insurance benefit EVEN IF named on the docs) NOTE: NY's anti-laspe statute does NOT apply b/c a spouse is NOT an issue or a sibling EXCLUSIONS:  All gifts and fiduciary appointments in favor of the ISSUE of the former spouse are NOT revoked An appointment of the former spouse as GUARDIAN of the couple's children is NOT affected If the couple RECONCILES and REMARRY, ALL prvns in favor of the "former" spouse are RESTORED  

11

What is the effect of pretermitted children on a Will?

1) If the testator has ONE OR MORE children when the Will was executed; AND... there is NO provision made for ANY child → the pretermitted child INHERITS NOTHING the Will made gifts to the other children → the pretrmitted child SHARES the amt w/ the other children AS IF a CLASS gift was made The pretermitted child takes from "the other children proportionately, not equally" it appears that the testator's INTENTION was to ONLY make a "ltd provision" to the children living at the time the Will was executed → the pretermitted child takes his INTESTATE share (which will come from other beneficiaries proportionately) 2) If the testator had NO CHILDREN when the Will was executed → the afterborn child takes his INTESTATE share

12

When does the EPTL protect pretermitted children?

"Pretermitted children" = children born OR adopted AFTER the Will is executed Rule = the EPTL ONLY protected pretermitted children who are... NOT provided for by any settlement; AND NEITHER provided for NOR mentioned in the Will

13

What is a pwr of appointment?

An authority created in, or reserved by a person, enabling that person to designate, within limits prescribed the creator of the power, the persons who shall take the property and the manner in which they take it It allows someone to look at the facts in existance in the FUTURE for distribution of property Characters: Donor – creator of POAppt Donee – person who is given POAppt to use Takers in default – persons who take property, if the donee fails to correctly exercise the power  

14

What are the 4 classifications of pwr of appointment?

Dimension 1: General vs. Special 1) General PoAppt = DONEE can appoint the property to themselves, his estate, or his creditors (as if he owned the property himself) 2) Special (Limited) PoAppt = DONEE cannot appoint to themselves, BUT RATHER just to limited class named by DONOR (e.g. “to any one of her descendants”) Dimension 2: Presently Exercisable vs. Testamentary **3) Presently Exercisable PoAppt = DONEE can appoint during HER lifetime (via lifetime trust) NOTE: DONEE can exercise the pwr via a Will UNLESS the DONOR's Will expressly forbids it If DONEE does not exercise the pwr of appt and there is NO default taker → on her death the trustee will distribute the principal of the trust property to the DONOR'S residuary beneficiary (OR DONOR'S intestate estate) 4) Testamentary PoAppt = DONEE can appoint only by Will after DONOR'S death  NOTE: in ANY pwr of appt question, FIRST classify the pwr

15

What types of pwr of appts are considered testamentary substitutes (T-Subs)?

Count as T-Sub: General Presently Exercisable PoAppt - DONEE can appt property to herself ---------- Are NOT T-Subs: General Testamentary PoAppt - DONEE can't get to the res (trust property) in her lifetime Special PoAppt - DONEE can NEVER get to it

16

What types of pwr of appts are subject to creditors' reach?

Creditors' can get to: 1) General Presently Exercisable PoAppt - DONEE can reach the assets as if she owned them, so the creditors can as well ----------- Creditors' CANNOT get to: 1) General Testamentary PoAppt - DONEE can't get to the assets in her lifetime EXCEPTION: Creditors CAN attack IF (i) a person is BOTH DONOR and DONEE of the pwr; OR (ii) DONEE can exercises in favor of her estate 2) Special PoAppt - DONEE can NEVER get to the assets, so neither can the creditors

17

How do you determine if a pwr of appt violates the Rule Against Perpetuities (RAP) or the Suspension Rule?

FRAMEWORK FIRST: Identify the type of power 1) General PRESENTLY EXERCISABLE pwr of appt VS. 2) Special pwr of appt OR General TESTAMENTARY pwr of apt ----------- SECOND: Is the power valid under RAP? **NOT AN ISSUE IF GRANT IS TO A LIVING PERSON** 1) General PRESENTLY EXERCISABLE pwr of appt: to be valid, the pwr must be certain to be ACQUIRED w/in LIB + 21 yr 2) Special pwr of appt OR General TESTAMENTARY pwr of apt: to be vald, the pwr must be certain to be EXERCISED w/in LIB + 21 yrs ----------- THIRD: Are the interests CREATED by the pwr VALID? 1) General PRESENTLY EXERCISABLE pwr of appt: to be valid, the pwr must be certain to be ACQUIRED w/in LIB + 21 yr IFF there is a future interest created (i.e. a Will), we measure from TIME OF CREATION of future interest (no Relation Back Doctrine) We do NOT apply the Second Look Doctrine here If invalid b/c of RAP or Suspension Rule, apply NY reform statute (i.e. reduce age contingency to 21 yrs) 2) Special pwr of appt OR General TESTAMENTARY pwr of apt: Relation Back Doctrine: We "FILL IN THE BLANKS" (i.e. look at from time of DONOR and read AS IF all part of his Will) to see if the interest created will vest w/in LIB + 21yr If violates RAP, we can apply "Second Look Doctrine" to see if the interest will vest looking from the death of the measuring life REMEMBER: if it's a "class gift" it must be "good as to ALL" If STILL invalid b/c of RAP or Suspension Rule, apply NY reform statute (i.e. reduce age contingency to 21 yrs)

18

Can extrinsic evidence be used to clarify a prvn in a Will?

Absent ambiguity, it is CONCLUSIVELY presumed that the testators have READ the Will and INTENDED its consequences → the plain meaning of the Will won't be overturned by extrinsic evidence IF it's "AMBIGUOUS"...  1) If it is a "latent ambiguity" (i.e. not evident by looking at the will) →then extrinsic evidence IS admissible to clarify/find the meaning of the testator's words Can use (i) "facts & statements" evidence abt the family relationships; (ii) evidence abt the testator's declaration of intent to 3d parties; OR (iii) evidence of testator's stmt to an atty who prepared the Will 2) If it is a "patent ambiguity" (i.e. an obvious error like missing a few zeros in $ amt) Can use (i) "facts & statements" evidence; OR (ii) evidence of testator's stmt to an atty who prepared the Will BUT NOT evidence abt the testator's declaration of intent to 3d parties

19

What is a conditional will?

A Will that expressly provides that it will be operative ONLY IF some condition is met IF condition is not met →the Will is DENIED PROBATE **IF YOU GET A CONDITIONAL WILL, argue both sides that it may NOT be a condition, but rather a "motive or inducement" for making a Will

20

When is a K to make or NOT revoke a Will enforceable?

A K to make a Will or NOT revoke a Will can ONLY be established by an EXPRESS STMT OF INTENT that the Wills prvns are intended to constitute a K b/t the parties A Joint Will (i.e. a Will of 2 or more ppl in one document) is NOT contractural (i.e. non-REVOCABLE by the surviving spouse) UNLESS expressly stated to be contractural (i.e. language NOT to revoke will not be read into a Will just b/c "we" language is being used) If a Will IS contractural and the survivior executes another Will that has INCONSISTENT prvns → a ct will read both together AND impose a CONSTRUCTIVE TRUST to protect adversely-effected beneficiaries from first Will

21

What is the mental capcity req'd to execute a Will?

Testator must have SUFFICENT capcity to... 1) Understand the nature of the act (i.e. that he's writing a Will) 2) Know the nature & approximate value of his property  3) Know the natural "object of his bounty" (i.e. he must know who is family is); AND 4) Understand the dispositions he was making **The burden of proof is on the Will proponent** NOTE: "capacity" to make a Will is LESS DEMANDING than the capcity to make other legal instruments A testator CAN properly execute a Will during a "lucid interval" A testator's Will MAY be invalidated if its the product of an insane delusion (i.e. paranoia)  

22

How can undue influence on a testator be established?

The Will CONTESTANT has the burden of proving... 1) The existence & exertion of an INFLUENCE; 2) The effect of such an influence was to OVERPOWER the will and mind of the testator; AND 3) The product is a Will or a gift in a Will that would NOT have happened "BUT FOR" the influence INSUFFICIENT EVIDENCE = the OPPORTUNITY to exert influence the SUSCEPTIBILITY to influence due to AGE or ILLNESS UNEQUAL distributions SUFFICIENT (but rebuttable) EVIDENCE = someone who is in a CONFIDENTIAL relationship with the testator who was ACTIVE in preparing the Will gifts to the DRAFTING ATTY (established sua sponte by ct w/ "Putnam Scrutiny")

23

What disclosure must an atty who is appointed executor make? 

A drafiting atty who is named as EXECUTOR of the testator's estate MUST given WRITTEN disclosure to the testator that states... Any person can be named as executor, NOT just an atty The executor receives a STATUTORY commission; AND That the atty will ALSO be entitled to legal fees for representing the estate Furthermore... Testator/client must SIGN the written disclosure in the presence of 2 WITNESSES If the drafting atty FAILS to comply with the req, he receives ONLY 1/2 of the statutory commission

24

What is the rule for No Contest ("In Terrorem") Cls?

No contest cl = a cl that states that IF ANY one objects to the Will, they will get NOTHING --------- In NY, the cl is given FULL EFFECT, EVEN IF there was probable cause to challenge the Will EXCEPTIONS: a cl will NOT be enforced if the Will Contest is... 1) Claiming forgery of that the Will was EXPRESSLY revoked by a later Will (if the challenge has probable cause); NOTE: this exception does not apply to revocation by physical act 2) Filed on behalf of an INFANT or INCOMPETENT 3) A construction proceeding to construe the TERMS of the Will; OR 4) An objection based on jx of the ct --------- NOTE: a person CONSIDERING challenging a Will w/ a no-contest cl can engage in SOME discovery w/o "tripping" the cl, including discovery re: Person who prepared the Will The attesting witness The Will proponents; The nominated executors; OR Deposition of a person w/ information of "potential value or relevance"  

25

What is a pwr of atty?

A written AUTHORIZATION for an agent (an "atty-in-fact") to act on behalf of the grantor of the pwr Can be generic or specific Non-durable pwr of atty = revoked by operation of law by either GRANTOR'S death or incapacity (valid until notice of death is received) Durable pwr of atty = extends BEYOND the GRANTOR'S incapacity UNLESS it has specific language that it is terminated by the grantor's incapacity

26

What is a health care proxy?

A type of durable pwr of atty that appoints an agent to make HEALTH CARE DECNS on behalf of the grantor It does not become effective UNTILL the grantor becomes incapacitated AND remains effective NWS incapacity MUST be: (1) in writing; (2) signed by the grantor; AND (3) witnessed by at least 2 adults  

27

What is a living will?

States an individual's desires, should he become terminally ill or be in a persistent vegatative state, re: whether to administer or withold... 1) Life sustaining procedures; 2) Artificial nutrition or hydration; AND 3) Treatment to alleviate pain **NY Ct of Appeals has held that patients' right to decline treatment is G'TEED**

28

What is NY's Negative Bequest Rule?

EVEN IF a Will does not make a COMPLETE distribution of the estate, resulting in partial intestacy→words of disinheritance are given FULL EFFECT We treat any NEGATIVE bequests as if the "beneficiary" has PREDECEASED the testator Anti-lapse statute still is operative (if "beneficiary" was an ISSUE or sibling)

29

How are lifetime gifts from testators (post-Will execution) to beneficiaries treated?

Satisfaction of legacies → a lifetime gift (made after a Will's execution) to a beneficiary named in the testator's Will was PRESUMPTIVELY made in partial or total satisfaction of the legacy (to be taken into account when distributing the testator's property in death) ~ Advancement (intestacy) NY has REJECTED "Satisfaction of legacies" doctrine There is NO satisfaction of legacy UNLESS proved by... 1) a CONTEMPORANEOUS WRITING made at the time of the gift; AND 2) signed by the DONOR or DONEE  

30

Is it possible to incorporate into a Will by reference to an extrinsic document?

NO! NY does NOT recognize incorporation by reference Incorp by reference = "I devise all things listed on the piece of paper in my desk" EVERYTHING has to be formally executed (i.e. 7 pt test)

31

What are "nontestamentary acts" AND are they valid?

"Nontestamentary acts": lifetime acts that have their own purpose or motive independent of any testamentary purpose that occur after a will is executed should be given FULL effect in the distributions made. E.g. "car I own at my death"; "contents of chest"; "furnishings in my living room" EXCEPTION: this is NOT VALID for title documents (e.g. deeds, stock certificates, bank passbooks); THESE can only be transferred as mandated by law

32

What are the 5 types of testamentary gifts that can be included in a Will?

1) Specific gift - only that asset can satisfy the gift "I devise my computer to my son, Seth" 2) Demonstrative legacy - A general amount from a specific source  "I bequeth $1MM to be paid from proceeds of sale of my house" 3) General legacy - Gift of a general dollar amount "I give the sum of $56MM to Jim" 4) Residuary disposition  “I give all the rest, residue and remainder of my estate to my brother Jim.” 5) Intestate property - If a partial intestacy results because Will  has no residuary clause OR something in residuary clause given to a friend who predeceased so anti-lapse does not apply

33

What is an "abatement of legacies" to satisfy creditors’ claims?

When there are MORE claims against an estate than there are assets... Order of abatement of testators’s property to pay debts and claims (absent provision in the will): FIRST PAID FROM.... 1) Intestate & residuary property abate THEN 2) General legacies abate pro-rata (proportionally) THEN 3) Demonstrative legacies abate pro-rata THEN 4) Specific legacies abate AND ONLY THEN... 5) Items that qualify for the estate tax marital deduction  

34

What is the ademption doctrine?

If a testator makes a SPECIFIC GIFT of property, and the property CANNOT be found or is no longer OWNED by the testator at the time of her death → the gift FAILS (he loses) Does NOT apply to Demonstrative gifts: If there is no cash available from the specified source, the gift will turn into a GENERAL LEGACY (i.e. other assets will be sold to satisfy a demonstrative legacy) EXCLUSIONS: 1) Beneficiaries can collect insurance proceeds for lost, damaged or destroyed (specific) gifts paid AFTER death If paid BEFORE death, then gift would adeem and beneficiary gets nothing 2) Beneficiaries can collect proceeds from an executory K (e.g. the sale of a house) to extent paid AFTER death If K was completed by time of death, the gift adeems and beneficiary gets nothing  3) Beneficiary is entitled to receive money or property into which the proceeds from the sales that CAN be traced  

35

Are specific gifts of encumbered property (w/ liens) "exonerated" at time of distribution?

NO! Liens on specifically devised property are NOT exonerated UNLESS the will specifically directs exoneration (i.e. using proceeds from residuary estate) NOTE: a general provisions for payments of debt in a Will do NOT exonerate specific liens – must specifically direct exoneration If not exonerated, the property passes subject to the lien  

36

How are bequests of shares of stock (and other securities) treated?

Depends... 1) Stock in closely held corporation → adeems if sold (i.e. it's specific) 2) Stock in publicly traded company → does NOT adeem (i.e. it's general) If stock does not exist, beneficiary would get paid the value of the shares from other assets EXCEPTION: Stock in publicly traded company ARE specific gifts if the testator bequeathes "my XYZ stock" → adeems 3) Stock Splits → treated as a specific bequest no matter what so beneficiary will get all the shares INSTEAD of the original amt NOTE: it's irrelevant when dealing w/ stock splits whether the testator used "my" language, and/or whether the stock was publicly-traded or closely-held 4) Corp merges & stock is converted → no ademption b/c change in form, not substance (i.e. this wasn't a sale)  

37

What are non-probate assets?

Interests in property that are NOT subject to disposition under the Will or via intestacy (i.e. a Will instruction CAN'T override existing instructions) CATEGORIES: 1) Property passing by right of survivorship (e.g. joint bank account; payable on death securities, etc) 2) Property passing by K (e.g. life insurance policies; emp benefits payable to person OTHER than decedent or decedent's estate) 3) Property held in trust (i.e. the terms of the trust will govern the disposition of the trust assets) 4) Property over which the decedent held a "pwr of appointment"  

38

What is the purpose of the elective share statute?

To protect the SURVIVING spouse against disinheritance by giving him/her a MINIMUM share of the testator's probate or intestate estate

39

How do you calculate the elective share amt (AND net elective share amt)?

**Applies to BOTH PROBATE and INTESTATE estates** Elective share = the GREATER of... 1) $50k; OR 2) 1/3d of the augmented estate (= net probate estate + testamentary substitutes) Net probate estate = the value of the estate AFTER pmt of debts, BUT before pmt of estate taxes Testamentary subsitutes = certain transferred non-probate assets to other persons --------------- Net elective share =  1) Elective share/augmented estate MINUS 2) Elective share amt (calculated above) MINUS 3) Any gifts to SPOUSE from Will MINUS 4) Any joint tenany property b/t SPOUSE & SURVIVING SPOUSE ("1/2 IN, 1/2 OUT") NOTE: IF negative, elective share is SATISFIED (no right of election) IF positive, elective is NOT satisfied by the gifts, others contribute pro rata

40

What are 7 key testamentary substitutes (T-Subs) categories?

Testamentary Subsitutes need a LEG UP 1) Totten trusts (bank accounts in testator's name in trust for another) 2) Survivorship estates (joint tenancies; tenancies by the entirety; joint bank accounts; survivor bank acocunts) NOTE: watch out for pre- & post- marriage sceanarios 3) Lifetime transfers w/ strings attached (revocable trusts; or trusts where testator retained a life estate AFTER 1992) 4) Employee pension, profit-sharing and deferred comp plans NOTE: if the plan is a "qualified plan" → only 1/2 is a T-Sub 5) Gifts made w/in 1 yr of death (>$14k; "Gifts causa mortis", regardless of amt) 6) U.S. gov't bonds (and other "pay on death" arrangements) 7) Pwrs of appointment (property over which the testator held a PRESENTLY exercisable general pwr of appt)   RULE OF THUMB = If testator has an interest in it and can manipulate it, then it's a T-Sub (i.e. almost all non-probate transfers)

41

What are 6 non-testamentary substitutes?

LOGPIT 1) **Life insurance proceeds (whether payable to surviving spouse or third party; counter-intuitive) 2) One-half (1/2) of "qualified" pension & profit-sharing benefits 3) Gifts less than $14,000 even made w/in 1 yr. of death. 4) Pre-marriage irrevocable transfers (i.e. gift to a friend before marriage) 5) Irrevocable transfers made more than one year before death (transfers in which grantor did NOT retain power to revoke, invade, consume or dispose of principal) 6) Transfers (irrevocable) with retained life estate made BEFORE 9/1/92 & during the marriage  

42

How do you calculate the augmented estate (a/k/a elective share estate)?

Net Probate Estate  PLUS All T- Subs PLUS  Survivorship estates b/t TESTATOR and 3d PARTY (made DURING marriage) Consideration Furnished Test = Surviving spouse has the burden of proof as to the decedant’s contributions to the assets, acquisitions (RP) or the deposits in a joint bank account/tenancy held by the deceased spouse & third party; only “consideration furnished” goes into elective share pot PLUS Survivorship estates b/t TESTATOR and SURVIVING SPOUSE Only contribute 1/2 of this T-Sub. Period. PLUS Surivorship estates b/t TESTATOR and 3d PARTY (made BEFORE marriage) Consideration Furnished Test, BUT onlly contribute 1/2 of the amt as T-Sub  

43

If positive, how is the elective share satisfied?

TAG LINE = "All beneficiaries contribute pro rata (proportionately)" CALCULATION: FIRST: find the fraction that EVERY beneficiary must contribute = Elective share amount / Probate estate value net of elective share  SECOND: multiply every beneficiary's gift by fraction above

44

Do elective share trusts satisfy the surviving spouse's right of election?

(probably) NO! For estates of decedents DYING (i.e. Will draft date is irrelevant) on or after Sept. 1, 1994 a life estate will NOT satisfy the elective share entitle If spouse files for elective share (which is HER RIGHT)→ Trust is administered as if SURVIVING SPOUSE predeceased the decedent (i.e. no life estate in the surviving spouse) & "accelerate to the remainderman" SURVIVING SPOUSE's elective share is THEN satisfied from gifted property and from other beneficiaries "PRO RATA" (including remaindermen), if applicable Caveat - if surviving spouse is given 1/3d or more OUTRIGHT (i.e. the elective estate share IS satisfied), then don't "kill" trust  ---------- BEFORE 9/1/94 →Right to elective share could be eliminated through use of an elective share trust that gave surviving spouse a life estate (an income interest for life), as long as at least $50k was given outright to the spouse (i.e. cash, property) If the sum of (i) outright dispositions of at least $50k plus (ii) the principal of the trust, was at least the 1/3 elective share amount → the surviving spouse could NOT elect against the Will

45

What are the procedural rules for electing an elective share?

The right of election is PERSONAL to the surviving spouse ALONE (purpose is to protect the spouse, not her heirs) Cannot be elected by an EXECUTOR or ADMINSTRATOR BUT, a GUARDIAN or CONSERVATOR of an incapacitated spouse MAY elect (w/ Ct approval) FILING 1) If the estate is admitted to PROBATE → Notice of election must be filed w/in 6 mos. after "Letters" are issued by Surrogate Ct. (at the start of the probate proceedings) 2) If there is NO estate administration → Notice of election must be filed no more than 2 years after testator's death WAIVER The right of election CAN be waived in a SIGNED WRITING (w/ or w/o consideration) that is ACKNOWLEDGED (b4 notary public)... (i) BEFORE or AFTER marriage; AND (ii) as to a particular Will or testamentory substitute, or as to ALL Wills and testamentary substitutes in general NOTE: A general waiver (e.g., premarital agmt) of all rights waives right to elective share or intestate share but NOT to specific gifts made in Will →there MUST be explicit waiver of such bequests  

46

How is elective share handled re: multi-jx parties?

If DECEDENT is NOT domiciled in NY at death → right of election is NOT available to surviving spouse UNLESS decedent EXPRESSLY states in his Will that the disposition of his real property in NY is to be governed by NY law The testator's Will is admitted to probate and his ENTIRE estate is administered in his state of DOMICILE, BUT "ancillary administrative proceedings" will be req'd in NY to clear title of NY property (situs rule) If DECEDENT is a NY domiciliary → property located outside NY STILL counts toward value calculation of SURVIVING SPOUSE'S elective share [even though the Ct. cannot adjudicate ownership of the property (need “ancillary administration” b/c of the “situs rule”)]  

47

In calculating elective share, what is the exempt property set-aside?

Items which the SURVIVING SPOUSE gets "off the top" before property passes through Will, intestacy or elective share – i.e. not counted toward estate. In addition to the elective share, the surviving spouse is entitled to EXEMPT property up to $92.5k in value... 1 car - up to $25k in value Furniture, appliances, computers - up to $20k Up to $25k cash allowance (NOT subject to creditor's claims, other than claims for funeral expenses) Animals, farm machinery - up to $20k  Books, pics, videos - $2.5k NOTE: If NO surviving spouse, goes to kids UNDER the age of 21 **In ANY question involving a surviving spouse, MENTION exempt property set-aside**

48

When is a surviving spouse DISQUALIFIED from taking an elective share?

Cannot take elective share or exempt personal property set-aside when... DISMAL 1) Divorce - a final decree of divorce/annulment 2) Invalid divorce procured by SURVIVING spouse 3) Separation decree (NOT agmt) rendered against SURVIVING spouse 4) Marriage was void - as incestuous or bigamous. 5) Abandonment & Lack of support by surviving spouse.   **SAME UNDER INTESTACY**

49

What is the body of law governing NY wills?

Estates Powers and Trust Law (EPTL)

50

What is a residuary?

The balance of the decedent's estate after all claims, taxes and particular bequests have been distributed i..e. The "rest" of the estate

51

When do the the rules of intestacy apply under the EPTL?

They apply when... 1) Decedent left no will OR did not properly execute it; 2) The Will does not make a COMPLETE distribution of the estate (b/c of poor drafting), resulting in partial intestacy; OR 3) A distributee successfully challenges the Will, and the Will is DENIED probate  

52

What is the order of priority for appointment as adminsitrator (in intestacy)?

Administrator will distribute property in this order... 1. Surviving SPOUSE;  2. CHILDREN; 3. GRANDCHILDREN; 4. FATHER or MOTHER; 5. BROTHER or SISTER; 6. Any other DISTRIBUTEES

53

What is the rule when a decedent is survived by a spouse and NO children?

The surviving spouse takes the WHOLE estate

54

What is the rule when the decedent is ONLY survived by his children?

If NO child has predeceased the decedent, the estate passes to the children in EQUAL shares

55

What is the rule when a decedent is survived by a spouse AND children (his issue)?

1) The surviving spouse: takes $50k + 1/2 of the RESIDUARY 2) The issue (from ALL marriages, if applicable): takes the left over residuary divided EQUALLY, UNLESS the estate is worth issue would then take NOTHING (i.e. everything goes to surviving spouse) 

56

What is the rule when the decedent is survived by his children AND issue of PREDECEASED children?

The estate passes to (i) the LIVING children; AND (ii) the issue of the deceased children "by representation" (i.e. Per Capita Distribution)  

57

How does property pass "by representation" (or per capita distribution)?

This is the DEFAULT distribution in NY for BOTH intestacy AND will ----------- STEP 1: The property is divided into AS MANY SHARES as there are issue (dead or alive) at the first generation level WHERE THERE ARE survivors STEP 2: All LIVING issue at the FIRST generational level take one share EACH STEP 3: The shares of the DECEASED issue (only) at the FIRST generational level are COMBINED and divided EQUALLY among THEIR issue at the NEXT generational level  NOTE: the issue of the children who TOOK a share DO NOT get a distribution at this 2d level NOTE: SPOUSES of issue do not get ANYTHING (not an intestate distributee)

58

What is the rule if the decedent is survived by NEITHER a spouse NOR an issue?

If no spouse or issue, the distribution is.... **1) to the SURVIVING PARENT(S) (If not survived by parents) ↓ **2) to the ISSUE of the PARENTS (i.e. siblings), who take per capita at each generation (If not survived by issue of parents) ↓ 3) 1/2 to MATERNAL GRANDPARENT(S) (OR their issue, who take per capita at each generation) PLUS 1/2 to PATERNAL GRANDPARENTS (OR their issue, who take per capita at each generation) NOTE: if one side (maternal or paternal) is wiped out, 100% goes to OTHER SIDE (OR their issue, who take per capita at each generation) NOTE: if only GRANDCHILDREN left on either side, then they take in EQUAL shares  (If not survived by grandparents OR their issue) ↓ 4) If the nearest kin are GREAT GREAT GRANDCHILDREN OF THE GRANDPARENTS (i.e. no great grandchildren), the estate revearts back to NY State

59

How does property pass by "per stirpes" distribution?

It's where the issue of a PREDECEASED child takes the share that the predeceased child would have taken In NY, the DEFAULT rule is "per capita" distribution for predeceased children for BOTH intestacy AND will NOTE: a will can OVERRIDE and change the default distribution ("per capita") to "per stirpes" FUN FACT: "Per capita" distribution results in the SAME distribution as "per stirpes" if there is ONLY ONE person in the first generation that PREDECEASED the decedant

60

What are the inheritance rights of ADOPTED children?

When adopted by... NEW family →adopted child AND his issue have FULL inheritance rights from the ADOPTING family (AND vice versa) NOTE: The adopted child has NO inheritance rights from the BIRTH PARENTS or other members of the BIRTH FAMILY SPOUSE of birth parent → the child AND that child's issue can inhereit from (i) the adopting PARENT; (ii) the BIRTH parent; AND (iii) the DECEASED parent's family NOTE: if child dies, the non-custodial parent's family CANNOT inherit (i.e. ONE WAY STREET) RELATIVE → the child inherits under the BIRTH relationship ONLY (i.e. that line is not "extinguished"), UNLESS the decedent was the adopting parent, then the child inherits under the ADOPTIVE relationship EXAMPLE If the decedent is Grandpa Gaylord; Caleb Sr. has predeceased Grandpa; AND Caleb Jr. were adopted by Aaron → Caleb would inherit under Caleb Sr.'s "line" (thus there are 3, NOT 2 shares at FIRST generation) However, if the decedent is AARON → Caleb Jr would inherit under Aaron's "line" NOT Caleb Sr's (thus Aaron's estate ould be split 3 ways, NOT 2) ↓

61

What are the inheritance rights of non-marital children?

Depends on whether decedent is MOTHER or FATHER... From MOTHER: a nonmarital child has FULL inheritance rights from his MOTHER and his MOTHER'S family From FATHER: inheritance ONLY IF paternity is established by... DURING "FATHER'S" LIFE 1) The father marries the MOTHER after the child's birth (i.e. "legitimation by marriage"); OR 2) An order of filiation in a paternity suit is entered adjudicating the the man to be the child's father; OR 3) The father files a witnessed and acknowledged (before a notary public) AFFIDAVIT of paternity w/ the Putative Father Registry; OR BEFORE OR AFTER THE "FATHER'S" DEATH 4) Paternity is established by clear and convincing evidence A DNA genetic marker test Open & notoriously acknowledging child as his own (e.g. name on birth certificate) Visitation, participation, gifts to child (NOT child support alone)    

62

What 6 circumstances DISQUALIFY a surviving spouse from taking an intestate share?

D-I-S-M-AL-S 1) Divorce: a final DECREE of divorce or annulment recognized as valid under NY law 2) Invalid divorce: procured by SURVIVING spouse  3) Separation decree: a final DECREE of separation was rendered against the SURVIVING spouse NOTE: a separation AGMT does NOT result in disqualification UNLESS there is specific language in the agmt waiving the surviving spouse's right under EPTL 4) Marriage is VOID (incestuous; bigamoous; fraud) 5) Abandonment/Lack of support: the SURVIVING spouse abandoned or refused to support the dead spouse 6) Slayer spouse: if the spouse KILLS the decedent, then she CANNOT inherit NOTE: If there was a joint tenancy, the bad surviving spouse could ONLY get what she put in 

63

What is the rule when the decedent is survived by a DISQUALIFIED spouse?

Rule = we assume the SURVIVING spouse PREDECEASED the decedent →we then drop their share to the children, etc    

64

What is the rule for an "advancement" in NY?

Advancement → at common law, an inter vivos (lifetime) gift was PRESUMPTIVELY an advance pmt of a distributee's share **This rule hase been REJECTED by statute in NY** In NY, there is NO advancement UNLESS proven by... 1) a CONTEMPORANEOUS writing made at the time of the gift; AND 2) the writing is SIGNED by the DONOR or DONEE ↓ If there IS a VALID advancement: (i) the advanced property is ADDED with the rest of the decedent's estate;  (ii) that total is then DIVIDED by the number of sharing distributees; AND (iii) the share for distribute w/ the advancement is REDUCED by the value of the advancement  NOTE: if advancement is larger than intestate share, she DOES NOT have to return the difference SIDENOTE: NY's advancement statute ALSO applies to inter vivos gifts to beneficiaries under a WILL (i.e. "Satisfaction of Legacies")  

65

What is the rule when a distributee disclaims property in intestacy?

The interest in the decedent's estate can be renounced in whole or in part ↓ Rule: the person who disclaims is considered to have PREDECEASED the decedent   The interest THEN drops to the disclaiming distributee's issue NOTE: if this RULE, wrt per capita distribution, would cause the distribution to "skip" a generation (where the distributees would share equally), THEN it is IGNORED (i.e. we assume the disclaiming distributee dies ONE DAY later than the decedent)

66

What 4 steps must a distributee take to properly "disclaim"?

A valid disclaimer must be: 1) In a SIGNED and ACKNOWELDGED (notary public) WRITING; 2) Accompanied by an AFFIDAVIT stating no consideration was received for disclaiming; 3) Must be IRREVOCABLE; AND 4) Filed with the Surrogate's Ct w/in 9 MONTHS after date of death NOTE: distributee cannot disclaim to (i) avoid a FEDERAL TAX lien; OR (ii) remain eligible for Medicaid/Medicare

67

What are 2 ways that a Will can be revoked?

1) By subsequent TESTAMENTARY INSTRUMENT EXECUTED w/ ALL appropriate formalities (i.e. 7  points); OR Express revocation = "I hereby revoke all Wills heretofore made by me" Revocation of a will revokes ALL codicils thereto; HOWEVER, revocation of a codicil does NOT revoke the entire will Revocation by implication: if there is a 2d VALIDLY executed & w/o an EXPRESS revocation cl→read both instruments together (2nd Will = codicil); only revokes to the extent that there are INCONSISTENT prvns BUT, if the 2d will is WHOLLY inconsistent w/ the first → the ENTIRE first will is revoked by implication 2) By PHYSICAL ACT (e.g. burning; tearing; cutting; canceling; obliteration; anything done to testator's SIGNATURE; OR other act of mutilation), BUT must have the INTENT to revoke WHEN the physical act is taken Physical act can be done by PROXY, IF... at the testator's REQUEST; in the testator's PRESENCE; AND witnessed by AT LEAST 2 witnesses  NOTE: at LEAST 4 ppl must be in the room: (i) the testator; (ii) the destroyer; AND (iii) 2 witnesses

68

What are 2 key presumptions re: revocation of a Will by physical act?

When a Will was LAST SEEN in the testator's possession OR cntrl...AND... 1) Is NOT FOUND after death → the testator INTENTIONALLY revoked the Will by PHYSICAL ACT 2) Is found in a DAMAGED condition after death → the testator INTENTIONALLY revoked the Will by PHYSICAL ACT NOTE: NEITHER presumption arises IF the Will was last seen in the possession of SOMEONE ADVERSLY EFFECTED by its contents (e.g. a person who would inherit under this Will)

69

Will changes on the face of the Will effect it?

NO! The ONLY 2 ways a testator can make changes to her Will are: 1) write a NEW Will which REVOKES the first one; OR 2) make a CODICIL changes only part of the Will NOTE: BOTH forms must be duly executed (i.e. satisfy the 7 points) Words added to a Will AFTER it's signed/witnessed are DISREGARDED (unless the changes are duly executed w/ witnesses) PARTIAL revocation by physical act (e.g. black marker thru a line) is NOT recognized in NY

70

Can an EARLIER Will (or certain prvns) be "revived" by destroying a LATER Will (or codicil)?

NO "revival" of the previous Will or prvns UNLESS... 1) Re-execution: the EARLIER Will was re-signed and re-witnessed (7 point formalities); OR 2) Republication by codicil: execution of a codicil that incorporates by reference the prior Will OR one or more of its prvns NOTE: (i) if FIRST Will is properly revoked; AND (ii) the second Will is properly distroyed by physical act →NO Will is admited to PROBATE (unless saved by dependent relative revocation, DRR)

71

What is the common law doctrine of dependent relative revocation (DRR)?

DRR permits a revocation of a LATER Will to be DISREGARDED The effect is to allow the 2d Will into probate REQUIREMENTS: 1) The testator's 2d REVOCATION must be premised OR dependent upon a MISTAKE OF LAW (i.e. that revocation of the LATER Will will "revive" the earlier Will); AND  2) The distribution by ADMITTING the 2d Will to probate is CLOSER to testator's INTENT than what would result from INTESTACY NOTE: if you get a DRR question, ARGUE BOTH SIDES!!

72

What must be proven to overcome the PRESUMPTION of revocation from lost/damaged Wills?

Proponent of lost/damaged Will must do 3 things... 1) Prove that the lost/damaged will was duly executed (i.e. made p/t 7 points) 2) Prove that the lost/damaged Will was NOT "revoked" OR should not be revoked Evidence IS admissible to REBUT the presumption of revocation (i.e. when the Will is lost or damaged) Under dependent relative revocation (DRR), prove that the revocation should be disregarded b/c of a mistake of law 3) The PRVNS of the lost/damaged Will must be "clearly and distinctly proven" by (i) ea. of (at least) 2 witnesses; (ii) OR by copy/draft of the Will proved to be TRUE and COMPLETE

73

What are the 7 reqs for the execution of a valid Will?

"7 POINT TEST" 1) Testator is 18+ YRS OLD; 2) Testator signs OR by "proxy" (i.e. someone at testator's direction and in her presence) PROXY must (i) also sign her name; (ii) CANNOT be counted as an attesting witness; AND (iii) must affix her addy Signature can be ANY mark intending to be a signature (e.g. an "X") Singnature must be VOLUNTARY 3) Signature at "the END thereof" Signing in the middle of the will WON'T DENY probate, BUT the words below the signature WILL NOT be given effect EXCEPT: the Will IS denied probate IF "all the meat" of the T's intention is below the signature 4) Witnesses: Testator must sign in front of 2 ATTESTING WITNESSES (or "acknowledge" an earlier signature) IF the Testator forgot to sign in front of witnesses, then it will be DENIED PROBATE IF the Testator signs AFTER the witness, it's not an issue AS LONG AS it's "contemporaneous" 5) Publication: Testator must communicate to the witnesses that they are witnessing a WILL (and not some other legal doc) by declaring it to be her "Last Will and Testament" 6) Signature from 2 ATTESTING WITNESSES NOTE: NY does NOT req that each witness sign in EACH OTHER'S presence OR sign in the testator's presence  7) Entire "execution ceremony" MUST be completed w/in 30 days of FIRST witness's signing

74

What is a codicil?

Later amendment OR supplement to a Will that must be executed with the same will formalities as a full Will NOTE: Revocation of a codicil does NOT revoke the underlying will  

75

Who has the burden of proving "due execution" a Will?

The Will proponent (i.e. the person who offers the Will for probate, usually the executor) has the burden of proving "DUE EXECUTION"    

76

What are the rules re: Witnesses' and proving due execution?

If will is NOT SELF-PROVING, BOTH attesting witnesses's must testify to the facts nec. to show due execution...IF NOT, then... IF 1 witness is dead, absent, incompetent, OR can't be found diligently → testimony of the other witness is OK IF NO witness is available → Will proponents must PROVE signature of Testator & 1 witness NOTE: an "attestation cl" (recites ALL the elements of due execution, appearing below the testator's sig and ABOVE the witnesses signatures) is PRIMA FACIE evidence of the facts presented An attestation cl is NOT a substitute for live testimony from witnesses (it's just CORROBORATIVE of the witnesses' testimony) Useful if the witness has a BAD MEMORY or is HOSTILE NOT req'd in NY

77

What is a self-proving affidavit?

Witnesses sign a sworn affidavit in the presence of a notary public ANY TIME after the will is executed (& attached to Will) that recites ALL statements they would make if called to testify in court → has the effect of sworn testimony Will is admissible to PROBATE on strength of the sworn recitals in the affidavit UNLESS an interested party (heir or legatee that would be adversely affected by Will's admission to probate) objects → proof of due execution IS nececessary then NOT req'd in NY  

78

What is the interested witness statute?

Designed to prevent FRAUD If a will beneficiary is an ATTESTING WITNESS → Will is VALID BUT gift VOID UNLESS... at least 3 ATTESTING WITNESSES sign & the other 2 are disinterested; OR interested attesting witness would be an INTESTATE DISTRIBUTEE, IF Testator had died w/o a Will (intestate) “Whichever is Least” Rule  applies: witness-beneficiary takes the LESSOR of (i) the bequest under the will; OR (ii) his intestate share (i.e. his specific "bequest is VOID) NOTE: an ATTESTING WITNESS can be named as EXECUTOR in the Will → does not trigger statute.

79

What is the NY Foreign Wills Act?

States that Will IS admissible to probate in NY IF validly executed under: "E-N-D" Law of the state where it was Executed; NY law; OR Law of the state where T was Domiciled, either at time of Will execution OR death. →Once admitted to probate, NEW YORK law governs the construction and application of its prvns

80

Are holographic and nuncupative wills valid in NY?  

Holographic will = written entirely in the testator’s handwriting and signed, BUT NOT witnessed NOTE: remember IF witnessed, then VALID7 Nuncupative will = oral will (via CD, DVD, etc) -------------- BOTH VOID in NY  EXCEPTION: for armed services during declared or undeclared war (expires 1 year after discharge) & mariners at sea (expires after 3 years after discharge) Foreign Wills Act application: if holographic will is executed in state that recognizes them AND person dies in NY, it would be OK under Foreign Wills Act  

81

Do the intended benefiicaries have a c/a against a negl. lawyer in preparing a Will?

NO b/c there is no privity of K b/t the intended beneficiaries and the lawyer BUT, there IS privity of K b/t the lawyer and the PERSONAL REP of the estate