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73 Cards in this Set

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What are the rights of the spouse and children in intestate death?
If deceased survived by spouse and no kids, spouse gets all
If deceased survived by spouse and one or more kids, surviving spouse takes $50K plus half the residuary
If estate worth <$50K, spouse takes all.
Children get the balance.
What if children predeceased the intestate deceased?
Step 1: Make the initial division at first generational level where there are survivors
Step 2: combine shares of deceased at first generational level, then divide equally among their issues at the next generational level
Rule: all members of the same generationl should have equal shares
What happens if a predeceased devisee conveys his interest to someone other than an issue?
Predeceased devisee cannot convey his interest; if he tries, his share falls out
What if there are no surviving children or spouse?
All goes to parents/surviving parent.
If not parents, to issue of parents, per capita at each generation.
What disqualifies a spouse from receiving her intestate share?
DISMAL
D: Divorce--> final decree/annulment valid under NY law entered at time of death
I: Invalid divorce procured by surviving spouse
S: Separation decree rendered against surviving spouse
AL: Abandonment/lack of support by surviving spouse
Result: assume spouse predeceased dead spouse, drop their share to their issue
What are the rights of adopted kids at intestate division?
Get full inheritance rights from the adopted family, none from the natural family
Exception: if adopted by spouse of natural parent, can inherit from adopting and natural parent
What if the child is adopted by a relative who dies intestate?
If decedent is the adopted parent, child inherits under adoptive r'ship only
If decedent is related thru natural r'ship and adoptive r'ship, child inherits under natural r'ship only
What do illegitimate children inherit?
From their mother, full inheritance rights
From their father, only if paternity is established thru:
-Legitimation after birth
-Order of filiation in paternity suit during dad's lifetime adjudicated him as the father
- Father files witnessed, notarized affidavit with a Putative Father Agency
- After death, paternity is established in probate by clear and convincing EV that dad openly and notoriously acknowledged child was his
- Blood test plus clear and convincing EV
What is the effect of a gift given by a parent to his child during the parent's lifetime?
No effect, unless there was a contemporaneous writing made at the time of the gift bearing parent's signature.
If so, treated as an advancement:
- Value of the gift added to the estate to equal the date of death value
- Distribution made according to the date of death value
- Beneficiary of the gift gets his share minus value of the gift
What about a lifetime gift given to a named beneficiary?
No effect unless contemporaneous writing and signature by donee or donor.
If so, then treated as a partial/total satisfcation of the legacy in the will.
What is the effect of a disclaimer/renunciation?
Disclaimant treated as though she predeceased the decedent, her share drops down to her issues.
Exception: a disclaimant cannot reduce the share of a distributee who predeceased by actual death.
What are the requirements for a valid disclaimer?
Must:
- Be in writing, signed and acknowledged before a notary
- Be accompanied by an affidavit stating that no consideration was received/no one paid disclaimant to disclaim (unless payment authorized by Ct)
- Be irrevocable
Be filed with Surrogate's Ct w/in 9 mos of death
Note: disclaimer to preserve eligibility for Medicare is void as against public policy
What are the requirements for a validly executed will?
-Testator (T) must be at least 18
- Will must be signed by T
- T's signature must be "at the end thereof"
- T must sign and acknowledge earlier signature in presence of each witness
- T must public the will--> declare if to be his last will and testament
- 2 attesting witnesses
Can T's proxy sign a will on his behalf?
Yes, so long as:
- Proxy does not also act as a witness
- Proxy signs it himself
- Proxy includes his address
What is the effect of post-signature words?
Words after the signature will be invalidated. If words are so material that not giving them effect would defeat T's will, the whole will may be invalidated.
What is the role of the attesting witnesses?
At least two should be able to testify if called to do so at probate.
Exception: in the case of only two attesting witnesses, one witness' testimony will suffice if it's shown that the other witness is dead, out of state, or cannot be found with due diligence
What are some requirements of valid execution required in other states, but not in NY?
- That witnesses sign in each other's presence
- That witnesses sign in T's presence
- That T, witnesses sign in a particular order
What is an attestation clause?
A statement (stmt) below T's signature and above witnesses' signature that recites the element of due execution
Acts as prima facie EV of the facts presented in the stmt. Useful if:
- Witness has a bad memory
- Witness is hostile
What is a self-proving affidavit?
A sworn stmt signed by witnesses in presence of an attorney that recites the stmt witnesses would make if called upon to testify.
- Usually signed at the same time as the will, but not necessary
- Acts as a substitute for live testimony, admissible in probate unless an interested party objects.
Is a will signed by interested witnesses valid?
Yes. But the gift to the witness may be void unless:
- Suprenumerary rule: there are at least three witnesses, and 2 are uninterested
- Interested witnesses would be intestate distributees if T died intestate. In that case, witness/beneficiary gets whichever is least of:
Bequest under the will or the intestate share
Can NY courts probate wills executed in other states?
Yes, under the Foreign Wills Act a will is admissible to probate if it's validly executed:
- Under law of state where executed
- Under NY law
- Under law of tthe state where T was domiciled, either at time of execution or at death
Does NY recognize holographic or nuncupative wills?
No, NY does not recognize unsigned or oral wills except for:
- Members of the armed forced during war (expires 1 yr after discharge)
- Mariner at sea (expires after 3 yrs)
How can T expressly revoke his will?
- Through the valid execution of a subsequent testamentary instrument
- Through a physical act, such as a burning, tearing, crossing out of whole pages/T's signature
Can be done by proxy at T's request so long as T is present and act is witnessed by 2 witnesses.
Implied revocation
If 2 wills exist, Ct will try to read them together if possible:
- Treat the latter as a codicil
- Revoke the first only to the extent of inconsistent provisions
BUT if 2nd is wholly inconsistent with the first, first is revoked by implication.
Presumptions regarding missing/mutilated wills
If last seen in T's control, but can't be found after death or is found mutilated, presumption that T revoked it by physical act. EV will be admitted to rebut presumption:
- Will left with attorney for safekeeping but attorney can't find it
- T told witnesses that destruction was accidental
Presumption does not arise if will last seen with someone adversely affected by its contents
Partial revocation
Only in two ways:
- Write a new will revoking the old one
- Make a codicil changing part of the will
NOT recognized:
- Words added to the will after signature and witness
- Partial revocation by physical act
How do you revive a revoked will?
Only by reexecution or by republication by codicil.
Dependent Relative Revocation
A common law doctrine allowing the Ct to disregard a revocation when premised upon a mistake of law. Should rarely be applied-- only if disposition resulting from disregarding the revocation is more alligned with T's intent.
How do you probate a lost/mutilated will?
- Must prove it was duly executed
- Must establish it wasn't revoked or that revocation should be disregarded
- All provisions must be clearly/distinctly proven by each of at least 2 witnesses or by a copy/draft
What is the effect of the Anti-Lapse statute?
It saves a gift to a beneficiary who dies during the T's life, on 2 conditions:
- Predeceased was T's issue, brother, or sister
- Predeceased left issue who survives T
Note: the terms of the gift could defeat the anti-lapse effect
What is the effect of a lapse on residuary beneficiaries (if anti-lapse does not help)?
Surviving residuary beneficiaries rule: If residuary estate bequeathed to 2 or more people, and the gift to one lapses, other residuary beneficiaries take the entire residuary in proportion to their interests
What happens when a member of a gift class dies?
Surviving members take his share, subject to anti-lapse .
What are the effects of a marriage or divorce after a will's execution?
Marriage: no effect
Divorce/annulment: all gifts and fiduciary appointments in favor of spouse are revoked by operations of law, and his share goes into residuary. Notes:
- Divorce must be final at time of death
- Appointment of former spouse as their kids' guardian is not revoked
- Gift to the son or daughter of a former spouse not revoked
- All gifts/appointments are restored if couple remarries
What is the effect of a child born or adopted after the will's execution?
- If no kids are provided for, the afterborn gets the same-- nothing
- If the will makes gifts to other kids, afterborn shares in gift as though a class gift was made; or, if T specifically stated his intent that only children alive at the time of execution be provided for, afterborn gets intestate share
- If T had no kids at the time of execution, afterborn gets his intestate share
What are the requirements for a child to be considered "pretermitted?"
- Born or adopted after execution of the will
- Un-provided for in any settlement
- Not provided for in the will
What's the effect of extrinsic documents on a NY will?
There is no incorporation by reference in New York. Everything must be formally executed.
What effect do non-testamentary acts of significance receive in NY?
Should be given full effect when distributions are made, except with regards to title documents (deeds, stock certificates, bank passbooks), which can only be transferred as mandated by law.
What are non-probate assets?
Assets not subject to disposition under the will, not part of the probate process:
- Property passing through right of survivorship (bank account, joint stock account, etc)
- Property passing through K (life insurance, empoloyee benefits)
- Property held in trust,including irrevocable trusts
- Property over which decedent held power of appointment
What is the general elective share?
The greater of $50K or 1/3 of the estate after adding in t-subs (the augmented estate)
What are the testamentary substitutes (t-subs)?
TS LEG UP:
- Totten trust bank accounts
- Survivorship estates declared after 9/1/66
- Lifetime transfers with strings attached
- Employee pensions
- Gifts made w/in one year of death and gifts causa mortis
- US gov't bonds and other pay-on-death arrangements
- Power of appointment presently exercisable
What are survivorship estates?
Joint tenancies, tenancies by the entirety, joint and survivor bank accounts
What are lifetime transfers t-subs?
Transfers with strings attached, such as a retained power to revoke, invade, consume, or dispose of principal or name a new beneficiary; irrevocable transfers with retained life estate made after 9/1/1992
What are gifts causa mortis?
Gifts made in anticipation of impending death. Automatically revoked if the donor survives the specific peril.
What interests are never t-subs?
LOGPIT
- Life insurance
- On-half of qualified pension and profit sharing benefits
- Gifts made w/in one year of death w/in the $11K annual exclusion
- Pre-marriage irrevocable transfers (gift to a friend prior to marriage)
- Irrevocable transfers made more than one year before death
- Transfers with retained life estates made before 9/1/92
How much does the surviving spouse get out of a t-sub held between the deceadent and a third party?
Use the consideration furnished test: surviving spouse has burden of establishing amount of decedentcontributions to asset's acquisition of deposits in bank account
Note: one half of joint tenancies or joint bank account accomplished before marriage is considered an irrevocable gift before marriage, even if deceased furnished more than 1/2 the consideration.
What portion does the surviving spouse get from a t-sub shared with the deceadent?
One half.
How do you calculate the elective share?
1. Add the t-sub amount to the augmented estate total.
2. Divide by 3
3. Subtract amounts passing under the will and amounts held in joint survivorship with the deceased
4. Any amount over what was already bequeathed to surviving spouse will be subtracted from other beneficiaries' gifts, pro rata
Can you set up an elective share trust to satisfy the right of election?
Not for decedents dying after 9/1/1994. If dying before, can set up a trust that includes:
- Life estate of at least $50K
- Trust principle amount plus life estate that are equal to or greater than the elective share amount
Surviving spouse would thereby not have an elective share; but if terms did not meet above requirements, they would drop out of the will and the remainder would be accelerated.
Procedural rules governing election
- Must be filed 6 mos after letters are issues by the surrogate Ct at the start of the probate proceeding, or, if not proceeding, in no even more than 2 yrs after death
- Right of election is personal to the spouse-- cannot be transferred. But guardian of incapacitated spouse may elect on his behalf w/ court approval.
Can you waive an elective share?
- Can be waived w/ or w/out consideration, as to s specific instrument or as to testamentary instruments generally. Waiver must be in writing, signed and acknowledged before a notary.
Does an out-of-state spouse have a right of election?
Yes if her decedent was domiciled in NY at the time of his death; otherwise, must have express statement in decedent's will that the disposition of his NY property is to be governed by NY law.
Can a spouse be disqualified from taking his elective share?
Yes- DISMAL
What's required for testamentary capacity?
Less than for any other legal instrument. Sufficient capacity to:
- Understand the nature of the act
- Know the nature and approximate value of his property
- Know the natural object of his bounty (family members and loved ones)
- Understand the disposition he was making
- If incapacitated, the execution would be valid if it took place during a lucid interval
What are the requirements for showing insane delusion?
T is of sound mind on other subjects, but has a persistent belief in supposed facts which have no real existence except in T’s perverted imagination
What are the requirements for showing undue influence?
Existence of testamentary capacity subjected to and controlled by a dominant influence of power. Burden of proof on contestant to show:
a. Existence and exertion of influence
b. Effect of such influence was to overpower the mind and will of T
c. Product is a will/gift in will which would not have happened but for the influence
What showings, standing alone, are insufficient to establish undue influence?
1. Opportunity to exert influence
2. Susceptibility to influence b/c of age/illness
3. Unnatural disposition (i.e., some kdis got less than others)
When will a court make a Putnam Scrutiny?
If:
i. A will makes a gift to one in a confidential r’ship AND
ii. That person was active in preparing the will,
1. Then…inference of undue influence
2. If will makes a gift specifically to the drafting atty, surrogate ct will make scrutiny even if no objection is filed to determine whether the gift was voluntarily made
What disclosure must an attorney acting as the will's executor give to the T?
He must give written disclosure to client that:
1. Any person can be named an executor
2. Executor received §§ory commissions
3. Atty will be entitled to legal fees for representing the estate
If doesn’t provide disclosure, atty will receive only ½ the §ory commission
Are no-contest clauses effective in NY?
Yes, even if there's probable cause to challenge it, unless the contest is:
1. Based on forgery, or claim that the will was revoked by a later will
2. Filed on behalf of an infant or an incompetent
3. A construction proceeding to construe the will’s terms
4. An objection to the j/n of the Ct
What is the power of appointment?
a. The authority created by a person to designate, w/in limits prescribed by the creator of the power, the person who shall take the property and the manner in which they should take it.
What are the types of powers that can be appointed?
1. General: person can appoint themselves, their creditors, or their estate
2. Special: Can’t appoint yourself; only appoint to a ltd class
3. Presently exercisable: can exercise it right now
4. Testamentary power of appt: can only appoint by will
What happens if a person dies having never executed his power of appointment?
A will exercises all power of appointment held by T, unless the instrument creating the power called for its exercise by a special reference.
ii. A presently exercisable power of appointment not exercised during the donee’s lifetime will pass to his descendants
Can creditors and surviving spouses access the property granted under a power of appointment?
Can only access what the donee could have accessed. I.e., only a presently exercisable testamentary gift will be reachable by a spouse demanding his elective share/creditor demanding repayment
Classifying the different types of testamentary gifts
Specific gift: I devise Blueacre to my son John
Demonstrative legacy: Designates where money is coming from
General legacy: I give the sum of $5000 to George (money)
Residuary disposition: Gift of rest, residue, and remainder
Intestate property: Partial intestacy where will does not have a residuary clause
What is the order of abatement to satisfy creditor's claims not satisfied under the will?
i. Order: Start to pay out of
1. Intestate and residuary property
2. General legacies, pro rata
3. Demonstrative legacies, pro rate
4. Specific legacies, pro rata
What happens to the lien on an encumbered property that's gifted under the will?
No exoneration of lien unless will specifically directs exoneration of lien by payment out of residuary
General direction to “pay debts” not enough
What is ademption, and what types of gifts does it apply to?
If will makes a specific gift of property, and property cannot be found or is not owned by T at her death, gift fails, adeems.
Ademption does not apply to general or demonstrative legacies
What are the exceptions to the ademption rules?
§ory exemptions:
1. Casualty insurance proceeds for lost, damaged, or destroyed property paid after death
2. Executory contract proceeds paid after death
3. Sale by guardian or conservator of specifically bequeathed property beneficiary entitled to receive $/property into which proceeds from sale/transfer can be traced. If cannot be traced, ademption applies.
How does ademption apply to gifts of stoc/other securities?
1. Stocks in publicly traded corp--> general legacies, unless T says “I give my XYZ stock”
2. Stocks in a closely held company are specific, always
3. If stock split, gift is treated as a specific bequest
Will extrinsic evidence be admitted to contradict the will?
Generally, plain meaning of the will won’t be overturned by extrinsic EV; so absent suspicious circs, it is conclusively presumed that T read the will and intended its circs
Will extrinsic EV ever be admitted to correct ambiguities?
Yes.
Latent ambiguity: error is not evident by looking at the will
- Extrinsic EV admitted to clarify/find meaning of T’s words:
- Facts & circumstances EV (EV about T, his family, the claimants under the will and their r’ship to the T, T’s habits & thoughts)
- T’s declarations of intent to third parties
- T’s statement to atty preparing the will
Patent ambiguity: mistake apparent on the face of the will
- Extrinsic EV admitted:
- Facts and circumstances
- T’s stmt to atty
- Not T’s declarations to 3rd parties
Can you make a contract not to revoke a will?
In NY, a K to make a will or to not revoke it can be established by an express stmt in the will that its provision are intended to constitute a K between the parties
- If express intent appears, but one T goes on to revoke the first will and write a will w/ inconsistent provisions,
- Probate the new will
- Impose a constructive trust in favor of original beneficiaries
Can you disinherit relatives other than your spouse?
In NY, words of disinheritance given full effect, even in partial intestacy
Treat disinherited beneficiary as tho he had predeceased T