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Flashcards in Wills Deck (52):
1

Powers of Appointment

What is the power of appointment & who are the characters?

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.  (i.e. permits the income beneficiary to designate the remaindermen)

 

Donor – creator of POA
Donee – person who is given POA to use
Takers in default – persons who take property subject to the power, if the donee fails to correctly exercise the power

 

2

Powers of Appointment

How is a testamentary POA adequately exercised?

A general Will provision (“all the rest, residue…”) exercises all POA held by the donee testator (both general & specific), unless the instrument creating the POA called for its exercise by specific reference in donee’s will.  

Ex - “to such of her descendants as Dana appoints by a Will that specifically refers to this power”

 

Specific reference requires POA to be specifically mentioned - cannot just say “all property over which I have a POA” – takers in default would get property 

 

3

    Will Contests

No-Contest Clauses

(In Terrorem Clauses)

No-contest clauses are given full effect even if there was probable cause to challenge the will.

 

Exceptions – can contest on grounds that:

Will was revoked by a later will (must have PC – can’t just make that up, need some proof).

NOT for claims that revoked by physical act or was a forgery.

Contest filed on behalf of a minor or incapacitated beneficiary
Construction proceeding to determine will’s terms
Objection to jurisdiction of the court.

 

4

    Powers of Appointment

Classification of POAs.  Which are subject to creditors or elective share?

General POA - donee can appoint the property to themselves, his estate, or his creditors
Special (Limited) POA - Donee cannot appoint to themselves, his estate, or his creditors – usually just to limited class named by Donor (“to any one of her descendants”)
Presently Exercisable POA - Donee can appoint during donee’s lifetime – in a trust instrument but can also exercise in Will (“during her lifetime”)

This is even if the trust gives instructions on how to distribute the principal on donee’s death if donee does not exercise POA.

Testamentary POA - Donee can appoint only by Will after Donor’s death (“on her death”)

 

Subject to elective share and/or creditors:

General Presently Exercisable POA - YES
General Testamentary POA – NO (Except for creditors – if donor was also donee & exercises it in favor of his estate)
Special POA – NO

 

5

Will Contests

Testamentary Capacity.  Lucid interval.  Insane delusion.

TESTAMENTARY CAPACITY:

Understand the nature of the act (i.e., he was writing a Will);
Know the nature and approximate value of his property;
Know the “natural objects of his bounty,” and
Understand the disposition he was making

 

Lucid Interval - Capacity to make a will requires less capacity than required for any other legal instrument so the surrogate court could find that the testator executed the will during a lucid interval. 

 

Insane delusion - T is of sound mind but has persistent belief in supposed facts, which have no real existence & which are against all evidence & probability & produce the exercise of the testamentary act.

 

6

Will Contests

Undue Influence

Undue influence - existence of a testamentary capacity subjected to & controlled by a dominant influence of power. 

 

Burden of proof on the will contestant to prove:

Existence & exertion of an influence;
Effect of such influence was to over-power the mind and the will of the testator; and
Produced a will or gift in a will that would not have been executed but for the influence.

 

Not enough proof:

Mere opportunity to exert influence
Susceptibility to influence (illness, age)
Unequal dispositions among children.

 

7

      Elective Share Statute

When is surviving spouse disqualified from taking elective share?

Cannot take elective share, intestacy, exempt personal property set-aside, or bring wrongful death action (DISMAL):

 

Divorce - a final decree of divorce/annulment.
Invalid divorce procured by surviving spouse
Separation decree (NOT agmt) rendered against surviving spouse.

Separation agmt- only bars SS from electing if there is a specific provision waiving rights of election

Marriage was void - as incestuous or bigamous.
AL - Abandonment & lack of support by surviving spouse.

 

é Remember – separation decree still allows SS to take under the Will

 

8

    Will Contests

Gifts to Attorneys.  Will names Attny as executor.

Where a will makes a gift to one in a confidential relationship (e.g., A-C; child w/ durable POA) AND that person was active in preparing the will, there is an inference of undue influence which, if not rebutted, satisfies the contestant’s burden of proof.

Must prove gift made willingly & freely.  If close friend or relative then usually rat’l basis for gift.
Putnam Scrutiny – automatic inquiry by Ct. if gift to drafting attny

 

Will names drafting attny executor –must give written disclosure to the client saying, (1) anyone can be executor, (2) executor receives statutory commissions, & (3) attny also gets legal fees for representing the estate.

Client must sign Acknowledgement of Disclosure in presence of at least 1 witness other than the attorney/executor. 
Effect of failure to comply with the statute - lawyer’s commissions as executor will be reduced by 50%.

 

9

Elective Share Statute

When must spouse elect?  Who can elect?  Can elective share be waived?

Must be filed w/in 6 mos. after Letters are issued by Surrogate Ct.
No estate administration – w/in 2 years of D’s death
Only SS can elect (not her issue) BUT guardian of incapacitated spouse may elect on their behalf w/ Ct. approval.

 

Waiver – w/ or w/o consideration, before/after marriage, to 1 particular will or T-Sub or to all à must be in writing, signed & acknowledged.

General waiver (ex - premarital agmt) of all rights - waives right to elective share or intestate share but NOT to specific gifts made in Will - must be explicit waiver of such bequests.

10

        Elective Share Statute

What is the effect on the elective share if the decedent is not a NY domiciliary?  The effect on property located outside NY?

Decedent not domiciled in NY at death – rt. of election is NOT available to SS unless D expressly states in his Will that the disposition of his RP in NY is to be governed by NY law.

Ex – H, domiciliary of Fla., dies leaving W.  Owned property in NY.  W cannot claim an elective share w/ respect to NY real estate.

 

If D is NY domiciliary – property located outside NY still counts toward value calculation of SS’s elective share – even though the Ct. cannot adjudicate ownership of the property (need “ancillary administration” b/c of the “situs rule.”)

11

        Elective Share Statute

Elective Share Trusts

Decedents dying before Sept. 1, 1994, - right to elective share could be eliminated through use of an elective share trust that gave SS a life estate (an income interest for life), as long as at least $50k was given outright to the spouse. 
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.
For estates of decedents DYING on or after Sept. 1, 1994 a life estate will not satisfy the elective share entitled.

NOT controlled by date of will execution

Caveat - only kill trust if spouse’s elective share is not being satisfied
Trust is administered as if SS predeceased D & the remainder is accelerated to the beneficiary.

12

     Elective Share Statute

Exempt personal property set-aside.

Items that come off the top before property passes through Will, intestacy or elective share – i.e. not counted toward estate.

 

Car - $15k
Furniture, appliances, computers - $10k
$15k cash
Animals, farm machinery - $15k
Books, pics, videos - $1k
Maximum allowed = $56k

 

 

 

 

13

Elective Share Statute

Consideration Furnished Rule

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.

 

DOES NOT APPLY to survivorship estates tra spouses – ½ is automatically a T-sub

 

Survivorship estates/bank accts. w/ deceased spouse & 3rd party created before marriage - consideration furnished test applies BUT irrevocable dispositions before marriage are not T-subs so only ½ of property’s value is a testamentary substitute – so if showed provided all the consideration only would get ½ considered, but if showed provided 1/3 consideration, that’s all that applies.

 

14

T-Subs & Intestacy

H left $100k in bank acct in his name for cousin (Totten).  $140 in joint acct w/ friend created after marriage (contributed it all).  Tenancy in Entirety worth $120k & intestate property in his name worth $90k.  What does wife take under intestacy & under elective share?

$100k (Totten) + $140k (joint acct.) + $60k (1/2 of property w/ W) + $90k (intestacy property) = $390k à x 1/3 = $130k for elective share

 

Under intestacy, wife takes $60k from Tenancy by Entirety & $90k from intestacy assets à $150k.  So this is $20k over the elective share so no need to elect.

 

If only the Totten & joint acct existed, wife would take nothing under intestacy b/c nothing in H’s name.  So wife would have to elect for her $80k.

 

15

       Elective Share Statute

Non-Testamentary Substitutes

Life insurance proceeds - whether payable to surviving spouse or third party. 
½ of qualified pension & profit-sharing benefits
Gifts less than $12,000 even made w/in 1 yr. of death.
Premarriage irrevocable transfers – gift to a friend before marriage
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.
Transfers (irrevocable) with retained life estate made before 9/1/92 & during the marriage. 

 

16

      Elective Share Statute

How is the elective share satisfied from the rest of the estate?

All other beneficiaries contribute pro rata - beneficiaries under the will, of T-Subs or intestate distributees.
Take the amount that needs to be satisfied divided by the remaining assets = ratio to be multiplied times each person’s share.
Ex - W left $300k net probate estate. AT&T stock ($50k) to husband H, $50k to daughter D,  $50k to sister S, & residuary estate ($150k) to friend F.  No T-Subs.  H files for an elective share – 1/3 of $300k = $100k.  H takes the AT&T stock so the net elective share to which H is entitled is $50,000.
$50k divided by remaining assets after H takes stock ($250k) = 1/5.  D -  1/5 of $50k = $10k, S - 1/5 of $50k = $10k, F - 1/5 of $150k = $30k.

 

 

17

Testamentary Gifts

Motive or conditions in will. Ks relating to wills.  Disinheritance.

 

Condition or motive – if condition, probate denied if not met but if motive for making will probate – argue both

 

Ks Relating to Wills - est. only by an express stmt in the will that its provisions are intended to constitute a contract between the parties – if survivor breaches, probate Will #2 & then impose a constructive trust in favor of original intended beneficiaries

 

“Negative Bequest” Rule - words of disinheritance in a will are given full effect, even in partial intestacy – it’s as if PD testator – BUT if anti-lapse applies, kids take

 

18

Elective Share Statute

Testamentary Substitutes

Totten Trust - “A, Trustee for B” Bank accounts.
Survivorship estates created on/after 9/1/66
Lifetime transfers with strings attached - transfers with a retained power to revoke, invade, consume or dispose of principal or name new beneficiaries
Irrevocable transfers with retained life estate made on/after 9/1/92
Employee pensions, etc. IF employee designated the beneficiary on/after 9/1/92 - only 1/2
Gifts made w/in 1 yr. of death in excess of $12,000 gift tax annual exclusions.
“Gifts Causa Mortis” - even within the $12,000 exclusion are testamentary substitutes – automatically revoked if donor survives expected peril. 
US government bonds & other P.O.D. (“pay on death”) arrangements
Powers of Appointment– property over which decedent held a presently exercisable general power of appointment (but NOT property over which he held a general testamentary power).

 

19

     Testamentary  Gifts

Mistake or ambiguity in Will.

Plain Meaning Rule - if no ambiguity in language, extrinsic evidence NOT admissible to overturn the plain meaning of the will. 
Latent Ambiguity(misdescription) – EE admissible to cure but if EE does not cure gift fails – can use (1) Facts & Circumstances evidence - evidence about T & family, (2) Testator’s declaration of intent, or (3) stmt to attny who prepared will
Patent Ambiguity - mistake on the Face of the Will - EE admissible to cure but T’s declarations of intent to a 3rd party NOT ADMISSIBLE – won’t allow evidence that contradicts what the will said.

Ex – “I give the sum of twenty-five dollars ($25,000) to my brother Bill.”

20

    Elective Share Statute

Elective Share

Elective share = the greater of $50,000 or 1/3 of the net estate

 

Augmented estate - property owned at death + T-subs

 

Applies to the net estate after payment of debts & expenses itself but before pmt of taxes.

 

21

Testamentary Gifts

Specific gift of encumbered property.

Liens on specifically devised property are NOT exonerated UNLESS the will specifically directs exoneration. 

 

General provisions for payments of debt do not exonerate liens – must specifically direct exoneration.

 

 

22

     Testamentary Gift

Bequests of stock & the Ademption Doctrine.

 

Stock in closely held corporation – adeems if sold (specific)
Stock in publicly traded company – does not adeem (general)
Specific stock (e.g. “my stock in X”) in publicly traded company – adeems if sold (specific)
 “I give $5k to be paid from the proceeds of sale of my Acme stock, to my friend Flori.” – demonstrative b/c it is proceeds of the stock, not the stock so turns in to general & no ademption
Stock Splits - treated as a specific bequest no matter what (even private co.) so B will get all the shares instead of the original amt
Corp merges & stock is converted – no ademption b/c change in form, not substance

 

23

      Testamentary Gifts

Abatement of legacies to satisfy creditors’ claims.

 

Order of abatement of T’s property to pay debts and claims, absent provision in the will:

First paid out of intestate & residuary property.
General legacies abate pro-rata (proportionally)
Demonstrative legacies abate pro-rata.
Lastly, specific legacies abate.

 

Within each class of gift, there is no distinction made between real & personal property.
Items that qualify for the estate tax marital deduction ALWAYS abate last.

24

Testamentary Gift

What happens if T does not own specific gift at death?

Specific gift not owned by T at death fails under the Doctrine of Ademption.

Does NOT apply to general or demonstrative dispositions (which turns into general legacy if no cash in specific source).

3 Statutory Exceptions – (1) Casualty insurance proceeds for lost, damaged, or destroyed property paid AFTER death, (2) Executory contract if sale proceeds paid AFTER death, or (3) Sale by guardian or conservator of specifically bequeathed property - beneficiary gets $$ or property into which the proceeds from the sale or transfer can be traced and have not been spent BUT if proceeds cannot be traced, then ademption applies.

 

25

Changes in T’s Family After Will Executed

Child born after

will is executed

(pretermitted child).

 

T had 1 or more kids @ execution – no provision for any kids, afterborn gets nothing
Gift to alive kids - afterborn shares in the amount as if a class gift was made
Limited provisions to alive kids – afterborn takes intestate share
Alive kids get different amounts – add the amts & divide by # of kids (including afterborn) – afterborn gets his share & it comes out of proportionate shares of other kids’ shares.

Ex - $100k to daughter A, and $50k to son B.  Then C born.  Take $150k/3 = $50k for C.  Take 2/3 x 50k from A and 1/3 x 50k from B.

T had NO other children when Will was executed - afterborn child takes an intestate share.
If afterborn is provided for by any settlement – gets nothing in will b/c T considered him

é Beware of republication by codicil – if a child is born after the will is executed but before the republication by codicil, the child is not considered pretermitted & is not entitled to statute protection

 

26

Testamentary Gifts

Classification of gifts made by a will.

 

Specific gift - only that asset can satisfy the gift.

 

Demonstrative legacy - A general amount from a specific source. 

 

General legacy - Gift of a general dollar amount.

 

Residuary disposition - “I give all the rest, residue and remainder of my estate to my brother Jim.”

 

Intestate property - If a partial intestacy results because Will was poorly drafted, has no residuary clause or something in residuary clause given to a friend who predeceased so anti-lapse does not apply

 

27

    Changes in T’s Family After Will Executed

What is the effect of a marriage or divorce after a Will is executed?

 

Marriage  - no effect b/c elective share covers

 

Divorce (final decree) – all gifts & fiduciary appt revoked by operation of law & as if PD & falls to resid.

Anti-Lapse does not apply to spouse to allow kids to take her share.

Separation decree not enough - even though it’s enough for intestacy & elective share.

Ex - if left $20k in will, not revoked but cannot elect for more

Does NOT apply to non-probate transfers.
Appointment of former spouse as guardian of couple’s children still valid. 

 

Couple reconciles & remarries - all provisions in favor of the former spouse are restored.

 

28

     Events Outside of Will

Satisfaction of legacies.  Incorp. by Reference.  Acts of Independent Sig.

NY REJECTS “Satisfaction of Legacies” Presumption Rule – only treated as satisfaction is proved by a contemporaneous writing made at the time of the gift and signed by the donor or donee.

 

NY does NOT recognize incorporp. by reference - everything must be duly executed in accordance with 6 requirements. 

 

Acts of Independent Sig. - 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. (car I own at my death, contents of chest, furnishings in my living room)

Except for title documents - deeds, stock certificates, bank passbooks.

 

29

Death of Beneficiary

Anti-Lapse Statute

 

Gift that normally would lapse if a beneficiary predeceased the T is saved if the deceased beneficiary was T’s issue or brother or sister AND the predeceased beneficiary leaves issue who survives the T.

Does not apply if condition precedent – “if he survives me.”
If adopted-out child specifically listed as beneficiary in will, adopted-out child’s issue can take under anti-lapse statute.

 

éDOES NOT APPLY TO SPOUSE

 

30

Death of a Beneficiary

Uniform Simultaneous Death Act

If 2 persons die under circumstances such that there is insufficient evidence that they have died otherwise than simultaneously, the property of each is distributed as though he survived.

Ex – Mary has 2 children, Sam & Donna.  Sam has a son, Sam, Jr.  Sam & Mary are killed in a car accident.  Life insurance policy says, “to my son Sam, if he survives me, otherwise to Donna.”  Donna gets proceeds b/c treated as though Sam predeceased Mary.
Ex - Will leaves residuary ½ to Donna & ½ to Sam.  Anti-lapse applies to ensure that Sam, Jr. takes Sam’s ½.

Jointly Held Property - Property passes as though each co-owner survived but there is no right of survivorship – gets converted to Tenancy in Common

Ex – 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.

 

31

      Death of Beneficiary

Surviving Residuary Beneficiaries Rule

Surviving Residuary Beneficiaries Rule:

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, absent contrary provision in the Will.

 

éAnti-lapse trumps SRB Rule.

 

32

     Death of Beneficiary

Class Gifts

Generic class & 1 predeceases T - class members who survive T take (absent contrary provision). 

Anti-Lapse Trumps this.

Beneficiaries named individually & 1 predeceases T – gift falls to the residuary.

Ex – “I devise Blackacre to A, B, C, the children of my brother Howard in equal shares.”  If C predeceases, share falls to the residuary b/c he was named individually.

 

Rule of convenience - class closes at the time a distribution to the class must be made.    

Outright gift by Will - the class closes at T’s death (children in womb also take.)
Life Estates followed by class gifts - Class closes at death of life tenant or income beneficiary

33

Will Revocation

How can a will be revoked?

Subsequent testamentary instrument executed w/ appropriate formalities
By physical act with intent to revoke
By implication - 2 wills & no express revocation – read them together – 2nd will treated as codicil – revokes 1st to extent of inconsistencies BUT 2 wills wholly inconsistent – 1st will revoked by implication
By proxy – (1) at T’s request, (2) done in T’s presence, (3) W’ed by 2 people (other than actor)
By presumption - when will last seen in T’s control & cannot be found or is found mutilated (can be rebutted)

 

éNO partial revocation by physical act – anything written or crossed out on will after execution is “nugatory” – must execute as new will or codicil

 

34

Will Revocation

What must person prove to overcome presumption of revocation?

Due execution and

 

Must establish will was not revoked by:

(1) overcoming the presumption of revocation that arises from the will’s non production; or
(2) prove the revocation should be disregarded because of DRR.

 

All provisions of Will must be clearly & distinctly proved by each of at least 2 credible Ws or by a copy or draft of the Will proved to be true & complete.

 

35

    Will Validity

Holographic & Nuncupative Wills

Holographic will - written entirely in the testator’s handwriting and signed but not witnessed BUT remember if witnessed then valid

 

Nuncupative will – oral will

 

BOTH VOID in NY - except for armed services during declared or undeclared war (expires one year after discharge) & mariners are sea (expires after 3 years)

 

éTIP - New Jersey DOES recognize holographic Wills so if a NY resident executes a Will in New Jersey and dies in NY the Will is valid under the Foreign Wills Act.***

 

36

       Will Revocation

Revival of revoked wills & Dependent Relative Revocation.

Revoked will cannot be “revived” simply by destroying the later will – revoking codicil does not revoke entire will - provisions in the will that were not changed by the codicil remain in effect.

 

Can only  revive by - Re-execution or Republication by codicil

 

*MAY* apply ­Dependent Relative Revocation - allows revocation to be disregarded when premised/conditioned upon, a mistake of law as to the validity of another disposition – i.e. though it would revive Will #1

 

Effect - disregard the revocation Will #2 & probate it
Argue both ways!
DRR should only be applied if its use comes close to doing what T intended rather than intestate.

 

37

Validity of Will

Burden of proof & facts necessary to show due execution.

**Burden of proof is on the Will proponent to prove the will was duly executed.

 

Attestation clause is prima facie evidence of facts recited BUT will is no self-proved.

Both attesting Ws must testify to the facts nec. to show due execution. 
1 W dead, absent, incompetent, or cannot w/ DD be found - testimony of 1 okay 
No W able to testify - Will proponents must prove signature of Testator & 1 Witness

 

38

Will Validity

Foreign Wills Act

Will is admissible to probate in NY if validly executed under:

 

New York Law; or
Law of the state where it was executed, or
Law of the state where T was domiciled, either at time of Will execution or death.

 

éOnce admitted to probate, NEW YORK law governs.

 

39

   Validity of Will

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 under earlier Will) objects à proof of due execution nec. then.

 

40

      Will Validity

Interested Witness Statute

Will beneficiary is attesting W à will is valid but gift void UNLESS

at least 3 Ws & the other 2 are disinterested, or
interested W would be an intestate distributee if T had died w/o a Will

 

“Whichever is Least” Rule - witness-beneficiary takes the lesser of the bequest under the will or his intestate share. (*say bequest is void, if it is)

 

W can be named as executor in the Will – does not trigger statute.

 

41

Execution of Wills

Requirements of a validly executed Will.

18 years old
Signed by Testator (or someone at T’s direction & in her presence) – any mark intended to be signature

Proxy signature - Must sign her same, cannot be 1 of 2 nec. Ws, affixes address

Signature is at end of Will
Sign the will or acknowledge earlier signature in presence of each witness
Publish the Will (declare to Ws that the document to be their last will and testament)
Two attesting witnesses who sign will within 30 days of each other (time starts running when 1st W signs)

 

42

Will Execution

What is the effect of words beneath the signature on a Will?

Will valid but words beneath signature are ignored UNLESS words after signature so material that to only give effect to above words would defeat intent of T, then entire will invalid.

 

43

    Execution of Wills

Probate Proceeding

Surrogate’s Court proceeding in which it is judicially determined that:

 

(1) the decedent died with a validly executed will & his heirs or intestate distributees are determined (to put them on notice of the existence of a Will) AND

 

(2) a personal representative named in the Will – executor - is appointed by the court to administer the decedent’s estate.

 

44

       Validity of Wills

What is a codicil?

Later amendment or supplement to a Will that must be executed with the same will formalities.

 

Revocation of a codicil does not revoke the underlying will.

 

45

Intestacy

Adopted Children Inheritance Rights

Child adopted by:

New family - no inheritance rights from nat’l parents
Spouse of a natural parent - inherit from adopting parent & the natural parent & the deceased parent’s family (only goes down, not up).
A relative – inherits under the nat’l relationship only, unless the decedent was the adopting parent, then only inherits under adoptive relationship

 

46

(In)testacy

Disclaimer/Renunciation Requirements

Writing, signed & acknowledged.
Separate sworn affidavit stating no consideration received for making the disclaimer
Must be irrevocable (can’t change your mind after filing).
The Will must be filed with the Surrogate’s Court within 9 months after decedent’s death.

 

Issue of distributees/beneficiaries who disclaim can take under anti-lapse statute BUT disclaimer cannot decrease another party’s share (ct. will act as if disclaiming child 1 day after the parent).

 

Cannot disclaim to remain eligible for Medicaid or to avoid federal tax lien.

 

47

     Intestacy

Nonmarital Children Inheritance Rights

Full inheritance rights from mother & kin & vice versa. 

 

Inherits from father if paternity est.

Father married the mother after child’s birth

 

Order of filiation during father’s lifetime

 

Father files a witnessed & acknowledged affidavit of paternity w/ Putative Father Registry

 

After death - paternity est. in probate proceeding by C&C evidence AND the father openly and notoriously acknowledged the child as his own

 

48

        Intestacy

Advancement Presumption

 

NY rejects the “advancement presumption” - lifetime gift to a child is not an advance payment of intestate share UNLESS proved by (1) a contemporaneous writing made at the time of the gift that is (2) signed by the donor or the donee.

 

Advancement Calculation - add it to total estate, divide by number of children & subtract amount of advancement from gift to that child.

 

Ex - $30k gift to A.  Dad dies leaving $300k to A, B & C.  So take $330k/3 = $110k each.  B & C each get $110k and the remaining $80k goes to A.

 

49

Intestacy

Distribution scenarios.

Survived by Spouse, No Children – surviving spouse inherits entire estate
Survived by Spouse and Children or children’s issue -  spouse takes $50k + ½ of residuary, children take other ½ , unless estate is less than $50k
Survived by children only – equal shares to each child
Survived by children & issue of predeceased children – by representation, per capita at each generation
Parents
Issue of parents (siblings) - brothers, sisters, or their issue
½ to maternal grandparents & ½ to paternal (if not living to their children & grandchildren)
Great grandchildren of grandparents ½ in equal shares to great-grandchildren on maternal/paternal side
Escheat to estate

 

50

Intestacy

When is a spouse disqualified from taking under intestacy?

Final decree of divorce/annulment
Invalid divorce by surviving spouse.
Separation decree rendered against surviving spouse, only.
Sep. agmt – only if specifically waives rts.
Marriage is void as incestuous, bigamous, fraud
Abandonment or lack of support by surviving spouse

 

é**Treat as though surviving spouse predeceased dead spouse.

 

 

51

       Probate

Order of priority for appointment as administrator.

surviving spouse

 

children

 

grandchildren

 

father or mother

 

brothers or sisters

 

any other distributee

 

 

52

    Intestacy

By representation per capita.

Step 1 – 1 share each at the 1st generational level at which there are survivors
Step 2 – shares of the deceased persons at the first generational level are combined & then divided equally among the takers at the next generational level
**persons in the same generation are always going to have equal shares

 

TIP – “At the 1st generational level A is alive so that’s where we make the first division.  If each person were alive at that generation they would get 1/3 share so since A is alive she gets her 1/3 share.  Dead B & Dead C would each get 1/3 also so their shares are combined to make 2/3 and drop down to their issue in the next generational level  are divided equally.”