Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
89 Cards in this Set
- Front
- Back
|
Definitions: What is intestate?
|
When a person dies without a will
Compare to testate: with a will |
|
|
What is a decedent? |
Person who dies with no will
Compare to TESTATOR: person dies with a will |
|
|
Definitions: What is a distributee? |
Person who inherits property under intestate succession (also known as heirs, next of kin) |
|
|
Definitions: What is issue?
|
All persons who have descended from a common ancestor. "Issue" and "descendants" are synonymous and include those in direct line with the decedent, i.e., children, grandchildren, etc.
Compare to BENEFICIARY: person who receives bequest (or legacy or devise) under a will |
|
|
Definitions: What is an administration proceeding? |
For intestate: Surrogate court proceeding inititated by distributee to (1) appoint administrator and (2) administer decedent's property
|
|
|
Definitions: What is intestate property? |
Assets held in decedent's name ALONE that do not pass by operation of law or by will, and which the administrator administers in accordance w/ the EPTL.
Compare to PROBATE estate: Assets held in testator's name alone that do not pass by operation of law, and which executor adminsiters in accordance with testator's will |
|
|
Definitions: What does operation of law mean? |
Property that passes automatically b/c of the way the property's title is held, REGARDLESS of the existence of a Will or intestacy |
|
|
Definitions: What is a residuary estate?
|
The balance of the T's estate after all claims, taxes, and "particular" bequests have been distributed, the "rest" of the estate.
Applies to both intestate and testate estates. |
|
|
Definitions: What is a probate proceeding? |
A proceeding to administer the property of a person who dies w/ a will.
Surrogate proceeding to |
|
|
What is advancement? |
Lifetime gift to a distributee
Compare to SATISFACTION OF LEGACY: lifetime gift to a will beneficiary |
|
|
Intestacy rules: Under A4 of EPTL when do the rules of intestacy apply? |
1. No Will: Decedent left no Will or didn't get around to signing it (or left a W that was not properly executed), |
|
|
Intestacy rules: What is the order of distribution under intestacy?
|
Distribution - Order of priority for appointment as administrator:
1. *surviving spouse* 2. *children* 3. grandchildren 4. father or mother 5. brothers or sisters 6. any other distributee |
|
|
Intestacy rules: What is the distribution if an intestate decedent is survived by spouse and no children?
|
If the intestate decedent is survived by her spouse but not by any children or issue of children, the surviving spouse takes the whole estate.
|
|
|
Intestacy rules: What is the distribution if an intestate decedent is survived by spouse and children? |
If the intestate decedent is survived by his spouse and one or more children of their issue, the surviving spouse takes 50k + 1/2 of the residuary, and the issue take the leftover residurary, |
|
|
Intestacy rules: What is the distribution if an intestate decedent is survived by children only?
|
If the intestate decedent is survived by children only (and all children are alive), the estate passes to the children in equal shares. |
|
|
Intestacy rules: What is the distribution if an intestate decedent is survived by children and issue of predeceased children?
|
It passes to "alive" children, and the issue of the dead children by representation or per capita @ each generation. (Explain terms of art) Applying the rule: |
|
|
Intestacy rules: What's the distribution for intestate decedent not survived by spouse or issue?
|
No spouse + no issue: |
|
|
Intestacy rules: What is distribution in most states?
|
Most states (and NY pre-1992) distribution is "per stirpes," under which the issue of a deceased child takes the share that her parent would have inherited if living. See chart page 6. |
|
|
Intestacy rules: When will PCEG create a different distribution than Per Stirpes (PS)? |
PCEG creates a different distribution than PS only if more than one person at the 1st generational level died and all have issue. If only person 1 had died, distribution "by representation" or "per stirpes" would give you the same distribution. |
|
|
Intestacy rules: When is a spouse disqualified under intestacy? |
Circumstances which disqualify a spouse from inheriting under intestacy: DISMAL ---Rendered against surviving spouse = does NOT disqualify UNLESS specific language in agreement waives surviving spouse's rights ---Rendered against deceased spouse = does NOT disqualify surviving spouse ---incestuous ---bigamous ---fraud |
|
|
Intestacy rules: How is the distribution handled when a spouse is disqualified? (EXAM) |
(1) Assume that surviving spouse has predeceased and drop share down to kids or whoever is next in line as distributee. (2) Surviving spouse cannot unjustifiable kill decedent spouse and inherit. ---NY DISTINCTION: has no slayer statute per se (but usually constructive trust will be imposed). ---If JOINT TENANCY between 2 spouses and one kills the other, joint tenancy is severed and skiller spouse can get value of property she put in. NO right of survivorship as a whole. |
|
|
Intestacy rules: What are the inheritance rights of adopted children? |
1. Adopted children and their issue have full inheritance rights from adopting family. ---EXCEPTION the child is adopted by the spouse of a natural parent (Mom remarries and new H adopts child), the child and its issue can inherit from BOTH adopting parent and EITHER natural parent.
3. But if the child is adopted by a relative (e.g., and aunt or uncle) (a) if the adopted child is related to the decedent by BOTH a natural relationship and the adopted relationship, the child inherits under the natural relationship only, UNLESS the decedent was the adopting parent, then the child inherits under the adoptive relationship only.
EXAMPLE: C1 dies in 2000, leaving child C2. C1 is widower, and C1's brother A (who has 2 children D and E) adopt C2. C1's sister B has no children. A dies in 2008, A's father G dies in 2010. B claims that C2 takes under adoptive relationship only, meaning there are only 2 lines of issue, and she would thus inherit 1/2 of G's estate. Is she right? Answer: No. C2 is adopted by a relative A, thus he takes under the birth relationship. So, B takes 1/3. D, E, and C2 each take 2/9 (2/3 divded to D, E, and C2).
What if A instead of G dies? What is the distribution of A's estate? Answer: C2 takes under adoptive relationship, thus D, E, and C2 each take 1/3. |
|
|
Intestacy rules: Does a child (E son of D) adopted out to a new family take as a beneficiary of a class gift made in the Will of a member of the child's natural family (T - 'income to D for life, remainder to D's issue? |
No. A child adopted into a new family has no inheritance rights from the natural family.
|
|
|
Intestacy rules: Does a child adopted out to another family member take as a beneficiary of a class gift made in the Will of a member of the child's natural family ? |
Yes. |
|
|
Intestacy rules: What are the inheritance rights nonmarital (out of wedlock) children? |
General Rule: Full inheritance rights from Mother and Mother's family (4) EXAM: Paternity established by CLEAR AND CONVINCING evidence, including: ---DNA genetic marker test (can be AFTER father's death) ---Opern and notoriously acknowledging child as his (i.e. "this is my kid", or father listed on birth certificate) ---participation in school activities ---visition ---Gifts YES, but support alone is NOT enough.
NOTE: do not confuse with equitable paternity in domestic law. |
|
|
Intestacy rules: What are the rules on lifetime gifts to intestate distributees? |
Common law: lifetime gift to child is an advancement of his intestate share (i.e. deduct gift fromchild's share so all kids take evenly). ---Mechanics: add gift amount to decedent's total estate, divided by # of issue, subtract gift from donee issue's share (i.e. G gives A 30K. G dies, leaves 300K to A, B, C. Total estate = 330K. B and C get 110K, but C gets 110K - 30K he already received.)
NY DISTINCTION: NY REJECTS the advancement presumption by statute. In NY, no advancement unless proved by
(i.e. G gives A 30K. G dies, leaves 300K to A, B, C. Each get 100K, so A ends up with 130K total.) |
|
|
Intestacy rules: Why would someone want to disclaim her interest in the decedent's estate? Who can disclaim? For what reason can someone not disclaim? (2, 1)
What are the requirements for disclaiming?
What is the effect of disclaiming? |
Reasons for disclaiming: 1. Avoid taxes
Who can disclaim: (1) Will beneficiaries (2) beneficiaries of life insurance, employee benefit plans, trusts, other non-testamentary transfers (3) Etc.
4 requirements for disclaimer: (1) In writing, signed before notary public (2) Affidavit stating that No consideration received for disclaiming, UNLESS surrogate's court authorizes receipt of consideration (3) Irrevocable (4) Filed with surrogate's court within 9 months after date of death
Effect: (1) A person disclaiming is considered to have PREDECEASED the decedent, so her interest drops down to her issue (who are calculated as one of first generation takers) (2) EXCEPTION: Equitable limit - if disclaimer would result in an issue receiving less of a share than if no disclaimer, then disclaimer is treated as dying AFTER decedent, and shares are thus distributed PER STIRPES.
EXAMPLE: D has kids A and B. A has kids G1 and G2, B has one kid G3. B dies before D. If A disclaims, G1, G2, and G3 all get 1/3: but G3 would have gotten 1/2 if A did not disclaim. Thus treat A as dying after D (per stirpes).
|
|
|
Execution of Wills: What does a validly executed will require? (7)
|
1. 18+ ---EXCEPTION: When T can't sign Will herself, then when T's name is signed by another person (proxy signature), such person: ---NY DISTINCTION: does not require witnesses sign in each other's presence OR in the testator's presence, BUT must attest to testator's signature when signed or acknowledge testator's signature (i.e. T tells W: "this is my signature, will you sign as W?") ---BUT Testator must sign FIRST in this situation, otherwise denied probate
|
|
|
Execution of Wills: How is a will amended or supplemented? |
By Codicil: a later amendment or supplement to a will executed w/ the same formalities (need 7 point test) |
|
|
Execution of Wills: What would happen if T signed the Will in the middle of it?
What are examples of signature circumstances that are allowed? |
(1) The will is admitted to probate, but the words following the signature are not given effect.
Allowed: (1) Witness signs before testator, so long as ceremony is CONTEMPORANEOUS (2) Witness guided testator's hand because T has trouble writing - so long as voluntary (3) Testator's signature barely legible - any mark intended as T's signature is OK (i.e. even "X") (4) T did not sign in witness's presence, so long as testator acknowledges his earlier signature in other witness's presence |
|
|
What are the ways to prove a will in a probate proceeding?
Who has the burden of proof? |
(1) Testimony of witnesses (2) Attestation clause (corroboration or rebuttal only) (3) Self-proving affidavit
The burden of proof is on the Will proponent (the one offering the Will for probate, usually executor)
|
|
|
What is required for testimonial proof of a will? |
|
|
|
Execution of Wills: What is an attestation clause? |
(1) appears below T's signature line and above Ws' signature lines, and recites all the elements of due execution. (2) Prima facie evidence of facts presented, but NOT a substitute for live testimony: merely corroborates witnesses's testimony. Will proponent must still call witnesses to testify or prove their signatures. ---Comipare to self-proving affidavit, which IS a substitute for live testimony
Useful when: (i) W w/ bad memory. Probate of a Will does not turn on memory of attesting witnesses. (ii) Hostile W: if W hostile, Attestation Clause can be used to rebut W's evidence. |
|
|
Execution of Wills: What is a self-proving affidavit (SPA)? What is required to create one? |
(1) W signs a SWORN statement in the presence of an attorney (usually signed at same time as will), recites all the statements that they would make if they were called to testify in court (that 7 point test fulfilled)
(1). IS a substitute for live testimony: (Different from attestation clause - which is merely corroborative of testimony, and you still have to call the Ws to testify or else prove their signatures - A SPA is a substitute for the live sworn testimony of the W. 3. Procedure: The Will is admissible to probate on the strength of the sworn recitals in the Affidavit unless an interested party objects, in which case the formal rules of proof of due execution apply. You must then call the 2 attesting Ws to testify.
|
|
|
Execution of Wills: What is an interested W statute? |
Validity of the Will is not affected if a Will beneficiary (NOT executors without bequest) is also an attesting witness, the BEQUEST to the witness is VOID (not the will itself) UNLESS:
(3) If Will Beneficiary is interested and not an intestate distributee, he loses the bequest under the will. The will is still good.
(3) If the will falls into intestacy because there is no residuary clause, it is still considered under the will, for purposes of the statute. |
|
|
Execution of Wills: What is the foreign Wills Act? |
END: Executed, New York Law, or Domiciled |
|
|
Execution of Wills: What are holographic and nuncapative wills? How do holographic wills interact w/ the Foreign Wills Act? |
VOID IN NY:
(1) Holographic will: will that is entirely in T’s handwriting that is signed, but NOT witnessed. ---otherwise valid if witnessed and meets 7 point teset (handwritten OK)
(1) valid for members of armed forces during declared or undeclared war, BUT void after 1 year of discharge (2) Valid for mariners at sea, BUT void after 3 years of discharge (1) Valid if will is executed in state recognizing holographic or nuncupative will. |
|
|
Execution of Wills: If a Will is denied probate due to a lawyer's malpractice, who is the lawyer liable to for malpractice? (EXAM) |
Look for privity of K:
(1) Lawyer has no duty to intended beneficiaries - no privity of K. The duty is only to the (now dead) client who K’d for the lawyer’s services. (2) Privity and duty to executor of estate when lawyer's mistake increased insurance policy increased tax on estate ---BUT still no privity between lawyer and TPB (3) EXCEPTION: fraud, collusion, malice |
|
|
Revocation of Wills: How may a will be revoked? |
Rule can be revoked in 3 ways: ---EXPRESS revocation: subsequent will contains express revocation language "I hereby revoke all wills heretofore made by me." ---IMPLIED: (2) IMPLIED revocation: only if 2nd will WHOLLY inconsistent to 1st will, otherwise treated as an amendment to the 1st
---writing "void" across the ENTIRE text OR through the signature (writing "void" at bottom page is NOT enough) ---Crossing out part of will does NOT revoke that part of the will, UNLESS it was made before the T and Ws signed
(3) Revocation by proxy: by physical act of another: (a) at testator's request, and (b) in testator's presence, and (c) witnessed by at least 2 witnesses (4 people must be in room: testator, person revoking, 2 witnesses)
NOTE: Revocation of codicil does NOT revoke the entier will. Provisions in the Will not changed by the codicil remain in effect.
|
|
|
Revocation of Wills: What are the presumptions regarding revocation of wills? |
(1) If will last seen in T’s possession or control, and not seen after T’s death, T presumed to have revoked the will by physical act. |
|
|
Revocation of Wills: How may a will be changed after it is signed?
|
2 ways to make changes with PROPER 7 POINT FORMALITIES (need witnesses): ---BUT valid if changes made before will signed by T and witness (question will tell you) |
|
|
Revocation of Wills: What is the rule of revival of revoked wills? |
Rule: If a person executes a WILL OR CODICIL that is then revoked by a later will containing a revocation clause, i.e., "I hereby revoke all WIlls heretofore made by me..." the first Will cannot be 'revived' simply by destroying the later Will. Will can only be revived in one of 2 ways:
EXCEPTION: talk about Dependent relative doctrine |
|
|
Revocation of Wills: What is the CL doctrine of Dependent Relative Revocation (DRR)? |
Also "best solution doctrine": common law doctrine which permits a revocation to be disregarded (allow probate of later will) when:
(1) premised upon, conditioned upon, or dependent upon a mistake of law as to the validity of another disposition (i.e. thought that revocation of later will validates prior will), and (2) Disregarding revocation of later will comes close to testator's intended disposition when he attempted to revive the earlier will
If no DRR revival, conventional rules apply and intestacy results.
NY EXAM: ambiguous in NY, so argue both DRR and conventional intestacy result |
|
|
Revocation of Wills: What's the proof of lost wills statute? |
Proof of lost wills Statute used in 2 situations: (1) DRR (2) Truly lost wills
"Lost will" proponent must prove 3 things: (1) Duly executed: Lost or later will duly executed (7 point test), and |
|
|
Death of Beneficiary During T's Life: general rules |
A testator cannot make a gift to a deceased person.
GENERAL RULE: (1) If beneficiary dies during testator's lifetime, gift to beneficiary lapses (fails), UNLESS gift saved by STATE'S ANTI-LAPSE STATUTE (EXAM: must tell you statute applies)
NY ANTI-LAPSE STATUTE: gift does not lapse but VESTS in deceased beneficiary's ISSUE if: (1) Predeceased beneficiary was T's issue or sibling, AND (2) Predeceased beneficiary leaves issue who survive testator
EXCEPTIONS (1) a CONDITION to a bequest trumps anti-lapse statute (i.e. "if X survives me") (2) NY Court of appeals case: Child was adopted out of family (usually would get nothing), but father specifically named child in will and child predeceased father - anti-lapse statute saves devise to adopted-out son's issue
KEEP IN MIND (1) Anti-lapse statute provides substitute taker (issue), so trumps deceased beneficiary's will (2) DISCLAIMANTS: considered to have predeceased the testator/decedent in both testate and intestate rules (thus in NY the gift vests in deceased beneficiary's issue)
OTHERWISE LAPSE IN RESIDUARY GIFT: The other residuary beneficiaries take the entire residuary estate in proportion to their interest if: 1) Devised to 2 or more persons, AND |
|
|
Death of Beneficiary During T's Life: Class gift rule? |
If testator names class GENERICALLY (i.e. "to my children"), and some members of class predecease testator: (1) class members surviving testator AT TIME OF TESTATOR'S DEATH take in equal shares (1) Anti-lapse trumps class gift rule ONLY IF beneficiary is alive when will is made*** ---Interest of B who predeceased T then goes to B's issue surviving T if (1) B was T's issue or sibling (2) If anti-lapse statute does not apply, share of beneficiary predeceasing testator goes to RESIDUARY
RULE OF CONVENIENCE: (1) Class closes at time distribution to class must be made: (a) Gift by will: closes on T's death (b) life estate or income interest with remainder to a class of beneficiaries: closes at death of life tenant or income beneficiary
(2) EXCEPTION: Class members in "gestation" when class closes can take - 280 days from conception to birth |
|
|
Death of Beneficiary During T's Life: Rule on simultaneous deaths? |
USDA (Revised Uniform Simultaneous Death Act Rule
Assume the person whose property is being distributed is the SURVIVOR if: (1) Absent will to contrary, (2) If 2 people die within 5 days (120 hours) of each other, and (3) there is no proof that one survived more than 120 hours than the other ---Example: Winnie, widow, leaves her residuary estate to her son, Solomon, and daughter, Destiny, equally. Winnie dies, Solomon dies within 5 days after. Solomon has a daughter Gigi; and left Will devising his estate to his friend, Felix. Destiny gets ½ estate. Solomon would have gotten ½, but because of RUSDA we assume Winnie survived Solomon. Solomon’s ½ of the residuary estate goes to his daughter Gigi b/c of anti-lapse (if no RUSDA, would go to Solomon, then Felix)
RUSDA AND JOINTLY HELD PROPERTY: (1) Applies ONLY to jointly held property, when people actually dead, for purposes of distributing property between people: ---jointly held property with right of survivorship ---Tenants by entirety ---Jointly held bank accounts (2) Jointly held property passes as though each co-owner survived the other (3) Theoretically severs right of survivorship for jointly-held property, passes as tenancy in common ---Example: H & W are married joint tenants with right of survivorship to Ritz. W has kids A and B from prior marriage. H & W have child C together, which is H's only child. What is Ritz's distribution? ---W's estate: Act as if W survived. Her 1/2 passes to her children A, B, and C ---H's estate: Act as if H survived. H's 1/2 drops to C only.
|
|
|
Changes in T's family after will is executed: Marriage and "unmarries" |
MARRIAGE following execution of the will: (1) Has no effect on the validity of a will, (2) BUT it may effect the gifts and dispositions under the will.
"UNMARRIES": (1) if court renders FINAL decree of divorce, annulment or separation. ---NOT if still in process (2) The following are REVOKED by operation of law: ---gifts and fiduciary appointments in favor of former spouse ---things passing to spouse by operation of law (i.e. life insurance, totten trust, etc) (3) Effect: Read will as if spouse predeceased testator
EXCEPTIONS (not revoked): (1) gifts and fiduciary appoints in favor of issue of former spouse (2) Appoint of former spouse as guardian of couple's children (3) Reconciliation/remarry = all provisions in favor of former spouse restored
Example: W devises Greenacre to H and rest of estate to her brother B. Will provides "Hank to serve as executor and guardian of our daughter D if able, otherwise to B as executor and guardian." W also has a life insurance policy, with H as primary beneficiary. W and H divorce in 2009, W dies in 2010 without having changed her will. ---Greenacre goes to B ---B serves as executor ---Hank still stills survives as D's guardian (exception) ---Hank no longer is beneficiary of life insurance
|
|
|
Changes in T's family after will is executed: Rule for child born/adopted after will executed |
EPTL applies ONLY to children who: (1) are PRETERMITTED (born or adopted after will executed), and ---includes non-marital afterborns ---must be in gestatation (woman is pregnant) at time of T's death for rule to apply (2) are not provided for by any settlement (i.e. life insurance), and (3) Not provided for or mentioned in will
Policy: make sure pretermitted child inherits somewhat equally with siblings
(1) If no provision made for any children - pretermitted child gets nothing
(2) If will made gifts to other children: pretermitted child shares in the amount made to the other children as if a class gift was made ---If kids get DIFFERENT amounts: (a) add amounts together, (b) divide by # children including pretermitted, (c) pretermitted gets that amount PROPORTIONALLY from the other children (no need to do the math)
(3) If it appears testator's intention was to only make LIMITED provision (small amount) to children living when will executed: pretermitted child takes his intestate share (comes from other beneficiaries proportionately)
If Testator has NO KIDS when will executed: (1) Pretermitted child takes intestate share ---Peter takes same share as siblings as if class gift made
|
|
|
Negative bequest rule |
Common law: When WILL does not make complete distribution of the estate (resulting in partial intestacy), words of disinheritance in the Will with respect to the INTESTACY are INEFFECTIVE. ---Rationale: property passing by intestacy governed by intesacy law, not by the Will
NY RULE: (1) Words of disinheritance are given full effect, even in partial intestacy. (2) Effect: treat disinherited person as if they predeceased testator (3) EXCEPTION: if disinherited has issue, then disinherited person's portion falls into intestacy to issue via anti-lapse statute (issue does not get disinherited automatically)
Example: W devised ring to son S and residuary estate to H, but also provided "no provision for Daughter". T divorces H in 2007, dies in 2010 without changing will. S and D survive her. ---NY: Treat D as if predeceased W, so S takes entire estate. If D had children, D's child would take 1/2 estate via anti-lapse statute.
|
|
|
Variations to testate distributions: Lifetime gift by T to Beneficiaries: Satisfaction of Legacies (will exists) |
Wills equivalent of advancements in intestacy (which NY also rejects)
Common law: lifetime gift (made after will execution) to beneficiary named in testator's will that was presumptively made in partial or total satisfaction of the legacy = taken into account when distributing testator's estate at T's death
NY RULE: NY has REJECTED the 'satisfaction of legacies' presumption by statute. Such a gift is not treated as a 'satisfaction of a legacy' unless proved by: |
|
|
Reference to facts and events outside the will: Incorporation by reference -- extrinsic document? |
"MS: The terms of an extrinsic document, not present at the time the will is signed (and thus not part of the will itself) can be incorporated by reference. (1) NY does NOT recognize incorporation by reference. Everything must be formally executed (7pt test for due execution). (2) do NOT confuse with pour-over trusts
Ex: T executes will that provides ""I devise all of my jewelry to persons named in list in safe deposit box. List is found. T's handwriting and signed by T, but not witnessed. The indicated dispositions will not be given effect, b/c IBR not recognized in NY. |
|
|
Reference to facts and events outside the will: What is the Acts of Independent Significance doctrine? |
"Non-testamentary acts": (1) Acts that occur AFTER the Will is executed that have purpose/motive independent of any testamentary purpose are given full effect when distributions are made. (2) EXCEPTION: title documents (deeds, stock certs, bank passbooks) can only be transferred as mandated by law. |
|
|
Changes in distribution of testamentary gifts: Gift classifications? |
Specific gift: Tangible, personal property ("I devise Blueacre and computer to my son Seth") ---If no residuary, and no anti-lapse applicable b/c dealing w/ friend, will goes to partial intestacy. |
|
|
Changes in distribution of testamentary gifts: Abatement/reduction of legacies to satisfy C's claims? |
Abatement occurs when there are more claims against estate than assets to cover all gifts under the Will. (1) not giving effect to gifts so that creditors' claims can be satisfied. (2) Stops when claims satisfied.
Order of creditors (abatement happens in reverse) (1) Debts T owes (2) Specific gifts (3) Demonstrative legacies, abate pro rata (proportionately) (4) General Legacies: Abate pro rata (proportionately) (5) Intestate and residuary property
|
|
|
Problems associated w/ Testamentary Gifts: Ademption? (EXAM) |
When specifically bequeathed property (my sailboat) is not in T's estate at time of T's death, the bequest is adeemed -- it fails w/o regard to T's probable intent.
Summary: (1) only applies to specific gifts (2) If specific gift does not exist, person getting gift loses (3) If specific gift is land that is sold, beneficiary does NOT get mortgage/note from sale - becomes part of residuary state (4) Does NOT apply to general and demonstrative legacies. INSTEAD: ---A demonstrative legacy (a gift from a specific source), will turn into a general legacy if there is no cash available from the specific source. ---Result – assets will have to be sold to satisfy a demonstrative legacy if there is no cash in the estate or if the designated account is no longer in existence.
3 EXCEPTIONS: (1) Casualty insurance proceeds for lost, damaged or destroyed property: Beneficiary takes the insurance proceeds to the extent they are paid AFTER death. (2) Executory K: (K that hasn’t been performed yet) Beneficiary will take the sale proceeds which are paid AFTER death. ---If K fully performed (proceeds paid) b/f death, B gets nothing. (3) Sale by guardian or conservator of specifically bequeathed property: ---If proceeds can be traced and are not spent: B entitled to receive the money or the property from the sale ---If can’t be found or is spent, you have ademption. ---EXAMPLE: A leaves Purpleacre to her daughter B in her will. A gets sick and her conservator sold Purpleacre to raise funds for A’s care. B is entitled to the proceeds from the sale of Blueacre, but only to the extent the proceeds can be traced and aren’t spent.
|
|
|
Problems associated w/ Testamentary Gifts: Ademption rules applied to bequests of shares of stock and other securities (EXAM) |
For ademption purposes, gifts of shares of stock:
(1) Publicly traded corporations = general gifts (they don't adeem) UNLESS: ---T says "I give MY X stock" = specific request and adeems, OR ---Stock changes but directly traceable to original stock, then B takes new stock (i.e. company takeover where SH from old company given stock in new company) (2) Closely held company = considered specific legacies and ADEEM (regardless of will language) (3) Stock splits: treated as specific bequests, B gets all shares after stock split (regardless of language/type of company) ---i.e. X gives Y 100 shares of IBM, split 2 to 1. Y takes all 200 shares. |
|
|
Specific Gifts of Encumbered Property: Exoneration of liens: |
MBE (could be tested as Property question): If T made a specific bequest of property that was subject to a mortgage or other lien on which T was personally liable, then B was entitled to have the lien "exonerated" (discharge of encumberance from residuary estate). (1) Liens on specifically bequeathed property are NOT exonerated (paid off from residue) UNLESS the will SPECIFICALLY directs exoneration ---A general direction in the will calling for payment of T's debts is not considered an expression of intent that liens be exonerated (i.e. "all my debts")
|
|
|
Problems associated w/ Testamentary Gifts: Rule on mistake? |
RULE: (1) Absent suspicious circumstances, conclusively presumed that testator read will and intended its consequences. (2) Thus, plain meaning of Will not to be overturned by extrinsic evidence
EXAMPLE: T told lawyer to draft will and give E 300 shares of Exxon stock. L's sec'y mistyped the figure as 200 shares which T didn't notice when he read the will. At T's death he owned 300 shares. E gets 200 shares b/c the plain meaning of the will won't be overturned by extrinsic evidence. Absent suspicious circumstances, and where the will is unambiguous, it is conclusively presumed that T read the will and intended the consequences. |
|
|
Problems associated w/ Testamentary Gifts: Ambiguity |
LATENT AMBIGUITY: misdiscription - error not evident by looking at the will (i.e. 2 or more things fit description) EXTRINSIC EVIDENCE ADMISSIBLE: (1) "Facts and circumstances" of testator, family, claimants, and their relationships to testator (2) Testator's declarations of intent to 3rd parties (3) Testator's statements to attorney
EXTRINSIC EVIDENCE ADMISSIBLE: (2) Testator's statements to attorney |
|
|
Problems associated w/ Testamentary Gifts: Conditional wills |
"Conditional Wills – Impose an obligation only if some condition is satisfied.
(1) probate denied if condition did not occur (2) Bar exam – argue both ways. Limited instance in which you would do this. Unlikely to be on bar, would have to tell you what’s going on in T’s head.
EXAMPLE: “I am going on a trip to the Bermuda Triangle. If anything happens to me I leave my property to X.”
|
|
|
Problems associated w/ Testamentary Gifts: Joint Wills |
A joint will is a will of 2 people in one document (stupid to do).
(1) A K to make a will or not revoke a will can only be established by an EXPRESS statement of intent that the Will’s provisions are intended to constitute a K between the parties (i.e. "we, us..." insufficient) --- first, probate the new will, even though it differs from the K will (original will). ---Then the court will impose a constructive trust in favor of the original intended Bs. ---If new will has assets not in original will, those assets go to the new will's beneficiaries. |
|
|
Non-Probate Assets: Definition and types |
DEFINITION: Interests in Property that are not subject to the disposition under the will or intestacy, and therefore are not part of the probate estate.
NON-PROBATE ASSET TYPES: 1. Property passing w/ Right of survivorship (bank account, joint stock account, real property, etc). 2. Property passing by K: (life insurance policy, employee benefits payable to a B other than decedent or decedent's estate. ---If paid to the insured's executory or insured's estate, it becomes a probate asset (i.e. If T has life insurance policy that names A as Beneficiary, even if he leaves proceeds to someone else in will, proceeds still payable to A) 3. Property held in trust, including a revocable trust (terms of trust will govern disposition of assets) 4. Property over which decedent held power of appointment. |
|
|
Elective share statute: Purpose
Comparison to intestate share? |
Purpose of: Protect the surviving spouse against disinheritance by giving decedent's surviving spouse a minimum share of testator's probate estate.
REQUIRES: (1) Decedent spouse is domiciled in NY at time of death, OR
Payment of elective share amount: (1) greater of 50k OR 1/3 of (probate estate + TSUBS) (2) If elective share amount not satisfied for surviving spouse, pro rata contribution from: ---beneficiaries under will ---beneficiaries of testamentary substitutes ---intestate distributees
EXCEPTIONS: (1) surviving spouse may waive right to elective share if: ---Writing, signed before notary public ---waiving particular Will or T-SUB, or wills and T-SUBS in general (2) Testator's waiver of all rights also waives spouse's right to share, EXCEPT specific gifts under the will
COMPARE to intestate share: (1) If IT survived by spouse and issue: 50k plus 1/2 balance of the estate. (2) If IT survived by spouse and no issue: whole enchilada. (3) If decedent died intestate, surviving spouse's intestate share would be larger than elective share - UNLESS Testamentary Substitutes were used. |
|
|
Elective share statute: Calculating elective share estate |
CALCULATING ELECTIVE SHARE AMOUNT: (1) Calculate net probate estate (add up value of everything left in will). ---include proved consideration for t-subs with 3P
Calculating amounts needed to satisfy living spouse's elective share: (1) Elective share amount (from above) (2) Minus amount surviving spouse receives under Will or via intestacy ---EXCEPTION: elective share trusts (3) Minus T-subs with surviving spouse (1/2 out NY fiction) (4) = Net Elective Share
Note: if surviving spouse not fully "satisfied", all other beneficiaries contribute pro rata (1) each contributes (their share) x (W's net elective share / total elective share esetate) (2) beneficiaries do NOT have to give back piece of asset they received under the will, just need to give $ to make spouse whole
|
|
|
Elective share statute: Testamentary substitutes, AKA augmented estate or elective share estate |
General rule: If T still has some sort of interest in the property, it's probably a T-Sub, EXCEPT Life insurance
T-SUBS that include FULL AMOUNT of the T-sub: TS LEG UP (1) TOTTEN Trust accounts: including bank accounts in testator's name in trust for another, and payable on death securities ---1/2 of survivorship estate between decedent and surviving spouse ---UP TO 1/2 survivorship between decedent and 3rd party created BEOFRE marriage ---proven consideration for survivorship estate between decedent and 3rd party created AFTER marriage (3) LIFETIME transfers w/ strings attached: Transfers w/ a retained power to revoke, invade, consume or dispose of principal or name new Bs AND irrevocable transfers (made during marriag) w/ retained LE mad on or after 9/1/1992. ---EXCEPTION: if plan is called "qualified" plan, only 1/2 is T-sup, regardless of beneficiary --- of more than 14k w/in 1 yr of death, and ---'gifts cause mortis' - gifts made in fear of impending death ---NOT irrevocable transfers before marriage
|
|
|
Elective share statute: What aren't T-SUBS? |
LOGPIT: Generally speaking, if T doesn't retain an interest, it's not a T-Sub, EXCEPT life insurance |
|
|
Elective share statute: T-Subs and Intestacy |
(1) Suriviving spouse has RIGHT OF ELECTION even if decedent left no will and surviving spouse would not be entitled to anything under intestacy. (2) Put everything that is T-SUB into elective share estate and do normal equation (3) Intestacy gifts: ---add to elective share amount ---subtract from amounts needed to satisfy (if elective share satisfied, spouse has NO right of election)
EXAMPLE: T died survived by wife W. No kids. T left 100k in bk acct in trust for his cousin C. No other assets solely in his name. T had a jt bk acct of 140k with F created after marriage to W. T contributed all the money into this bk acct.
(f) If H left W 90K in intestacy, add to elective share (total 330K), 110K is 1/3, subtract out 90K intestate share = 20K (if lower than 0, then W has no elective share because |
|
|
Elective share statute: Elective share trusts |
Does NOT satisfy surviving spouse's elective share entitlement if: (1) For decedents DYING on or after 9/1/1994, and (2) elective share trust giving surviving spouse a life estate (or other terminable interest) (3) Effect = kills the trust, read as if surviving spouse predeceased T, and accelerate to remaindermen (4) EXCEPTION: trust is NOT killed if surviving spouse is already given 1/3 outright
EXAMPLE: H dies after 9/1/1994, leaving will to W devising Purpleacre outright to W, and 1/2 balance of estate in trust: "Income to W for life, remainder to S if surviving W, otherwise to D." Will devises remaining 1/2 of estate to D. Estate net value = $450K (which includes Purpleacre). (1) W: 50K Purpleacre, but 200K trust is killed and accelerates to S (2) D: 200K (remaining 1/2 of estate) (3) S: 200K from acceleration of killed life estate
|
|
|
Elective share statute: What is exempt personal property? |
Exempt personal property = items which come off the top, b/f property passing by will, intestacy, or elective share
Total value of exempt property allowed = 92,500
Exam Tip: In any question involving a surviving spouse, mention the exempt personal property set-aside. But unless it’s specifically put in issue, add it as an afterthought at the end of the analysis (“up to $92,500”). |
|
|
Elective share statute: When is spouse DQ'd from taking elective share (and exempt property) |
DISMAL |
|
|
Elective Share statute: Essay putting everything together |
SEE PAGE 77 OF BARBRI OUTLINE |
|
|
Will Contests: What is required for testamentary capacity? (EXAM) |
Testator must have sufficient capacity to: |
|
|
Will Contests: What is insane delusion?
|
(1) T of sound mind on other subjects, but has a persistent belief in supposed facts are against all evidence, probability, and control, and produce the exercise of the testamentary act. (2) result = throw will out |
|
|
Will Contests: ***What is undue influence? |
Testamentary capacity subjected to and controlled by a dominant influence of power.
Contestant must prove:
EXCEPTIONS: (1) Inference of undue influence if: Gift to someone in confidential relationship, and person was active in preparing the will, OR (2) Putnam scrutiny: automatic inquiry into whether bequest to drafting attorney was voluntarily made (3) Appointment of drafting attorney as executor |
|
|
Will Contests: ***Under EPTL, what must drafting attorney do if Will names that attorney as executor?
|
***EPTL: If Will names drafting attorney as executor:
(1) Requires written disclosure to testator that: ---Any person can be that named executory, not just the attorney, AND ---That the executor receives a statutory commission, AND
(2) Client must sign the acknowledgment w/ 2 witnesses.
(3) Attorney failure to comply with statute = only receives 1/2 statutory commission |
|
|
Will Contests: What is an "in terrorem" clause?
|
A clause in a Will that says if anyone objects to T's Will, the objector will get nothing.
NY RULE: The clause is given full effect even if there was probable cause to challenge the will, EXCEPT: (1) Surrogate court finds Probable cause to contest A forgery, or that the Will revoked by a later Will --- NOT apply to contesting that a Will revoked by physical act. (2) If contest filed on behalf of an infant or incompetent (action taken by a 3P (the guardian) (3) A construction proceeding to construe the Will's terms (merely asking court to determine interests the will creates) (4) An objection to the jurisdiction by the court (contesting will should be probated in another jurisdiction)
SAFE HARBOR: person considering contesting will may examine in discovery: (1) Person who prepared the will (2) attesting witness (3) will proponents (4) Nominated executors (5) Court in special cases may allow deposition of person with information of potential value or relevance |
|
|
Checklist for powers of appointment |
Checklist from Handout (*4 rule / 6 rule / 10 rule)
i. *Identify the interest.
|
|
|
Powers of Appointment: What are they? (RARELY TESTED) |
PURPOSE: allows someone to distribute property based on facts in existence at a later date
An authority created in or reserved by a person enabling that person to designate, w/in limits prescribed by the creator of the power, the persons who shall take the property and the manner in which they take it. |
|
|
Powers of Appointment: P of A definitions |
Donor: The creator of the power
|
|
|
Powers of Appointment: What are the different types of P of A
|
In any P of A Q, first thing to do is classify the power:
EXAMPLE: |
|
|
Powers of Appointment: If the will of someone who has testamentary P of A makes no mention of it in her will, and only contains a general will provision, what happens? |
(1) A general will provision exercises all Ps of A held by the donee T who was given the power (2) EXCEPTION: the instrument that created donee's P of A called for a specific reference to it in the donee's own will. ---Donee must then refer to specific property she appoints (i.e. NOT "any property over which I have POA, to my children") |
|
|
Powers of Appointment: What Ps of A are T-Subs for elective share purposes? What are not T-subs |
IS A T-SUB: ---How to handle elective share question: (a) look to see who and when property was appointed (b) follow regular T-SUB rules (i.e. consideration furnished), EXCEPT 1/2 in 1/2 out because not joint property
---spouse cannot get to trust property in her lifetime, property not hers to begin with ---donee can't get to in her lifetime because she is being told who to give it to |
|
|
Powers of Appointment: When can a donee's Cs reach the donor's property? |
Basically: Creditor can reach when Donee can reach
CREDITORS CAN REACH: (1) Generally Presently exersiable power of appointment ---Donee can reach assets if he owned, so creditors can too
CREDITORS CANNOT REACH: (1) special power of appointment ---donee can't get at assets, so creditors cannot (2) General TESTAMENTARY powers of appointment, UNLESS EITHER: ---donee is both donor and donee of POA, OR ---Donee exercises power in favor of her estate |
|
|
Intestacy rules: What is the rule for determining paternity after father's death? |
2. Rule for paternity after father's death: |
|
|
Poa and rap: SEE OUTLINE (rarely tested) |
(pg. 23 of word outline) |
|
|
Powers of attorney |
DEFINITION: A written authorization for an agent (known as an “attorney-in-fact”) to act on behalf of the grantor of the power. They may be general or specific, with as many variations as the drafter of the power wishes to contrive under the circumstances.
(1) NONDURABLE power of attorney: revoked by operation of law by NOTICE of EITHER grantor's death or incapacity (2) DURABLE power of attorney: extends beyond grantor's incapacity UNLESS specific language saying otherwise (i.e. "This power of attorney shall terminate upon my subsequent disability or incompetence.”) |
|
|
Health Care Proxies |
DEFINITION: Type of durable power of attorney that appoints an agent to make health care decisions on behalf of the grantor.
EFFECT: (1) It does not become effective until the grantor becomes incapacitated, and it remains effective despite the incapacity
REQUIRES: (1) in writing (2) signed by grantor or another at his direction (3) witnessed by at least 2 adults (4) Health care proxy must state that grantor appeared to execute proxy free from duress |
|
|
Living Will |
Generally states an individual's desires, should he become terminally ill or be in a persistent vegetative state, regarding whether to administer, withhold or withdraw: (1) Life sustaining procedures (2) artificial nutrition or hydration (3) treatment to alleviate pain
NY court of appeals: patient's right to decline treatment guaranteed by common law |
