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75 Cards in this Set

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What are the three ways in which a decedent's estate can be distributed at their death?
Intestate (without a will)
Testate (with a will)
By Operation of Law
What is "intestacy" ?
When an individual dies owning property which is not effectively disposed of because:

1. She left no will
2. The will is revoked or denied probate
3. The residuary gift fails and creates partial intestacy.
How does property pass by intestacy (without a will)?
1. She left no will
2. The will is revoked or denied probate
3. The residuary gift fails and creates partial intestacy.
What is "intestate distribution"?
A statutory framework designed to fairly distribute a decedent's property if the intestacy rules apply.
What are three names for the survivors of the decedent?
1. "intestate distributees"
2. "heirs"
3. "next of kin"
What is the definition of "issue" ?
All descendants regardless of degree, from a common ancestor, which include adopted children. Also includes a child in gestation.
Under intestacy statute, what is the distribution scheme when the decedent is survived by a spouse and any issue?
If intestacy applies, the spouse receives $50,000 off the top and 1/2 the balance. The other half goes to the issue by representation
Under the intestacy distribution, if decedent is survived by spouse and three children, and the net estate is $200,000, what is the proper distribution?
$125,000 to the spouse

$75,000 to the kids by representation ($25,000 per kid)

Spouse takes $50,000 off top.
Under the intestate distribution statute,what is the distrubution scheme when the decedent is survived by a spouse and no issue?
Give the whole to the spouse.
Under intestacy distribution, what is the distribution scheme when the decedent is survived by issue and no spouse?
Give all to issue "by representation" .

Always add "by representation" when you say 'issue'.
Under intestacy statute, what is the distribution scheme when the decedent is survived by one or both parents, and not spouse and no issue?
Whole to the surviving parent or parents.
Under the intestacy statute, what is the distribution scheme when the decedent is survived by the issue of parents, and no spouse, issue or parents?
The whole to the issue of the parents "by representation".

The issue of parents are brothers and sisters coming down with grandparents first.
Under intestacy statute, what is the distribution scheme when the decedent is survived by the issue of grandparents, and no issue of parents, spouse or parents?
1. One-half to maternal grandparents or surviving grandparent or (if neither is living) to their children and grandchildren, who take by representation.

2. One-half to paternal grandparents or surviving grandparents or (if neither is living) to their children and grandchildren, who take by representation.

3. If no maternal grandparents or their children or grandchildren, all to paternal grandparents or their issue (and vice-versa).
What is teh distribution scheme when the decedent is survived by only great-grandchildren of grandparents (i.e., first cousins once removed)?
One-half to great-grandchildren on maternal side and one-half to great grand-children on paternal side. If no-great grandchildren on one-side, all to great-grandchildren on other side.
Under intestate distribution, can there be inheritance beyond great-grandchildren of grandparents?
No, if the nearest kin are great-great grandchildren of grandparents or issue of great grandparents, the estate escheats to the State of New York.
Define "escheat"?
The state takes possession of an intestate's property because there was no valid will AND not heirs at law.
Although the decedent dies intestate (without a valid will) not all of the decedent's property may be subject to intestate distribution.

What are the exceptions to intestate distribution?
1. Jointly owned property with rights of survivorship.

2. Property passing by contract law (i.e. insurance plans)

3. Property held in trust

(operational law transfers= all of the above)
Rules that apply to intestacy and valid wills?

What happens to the gift if the person to receive it in intestacy or under a will predeceased the decedent or testator?
GENERAL RULE

1. The beneficiary in a will and the distributee in intestacy must outlive the testator/decedent to receive the gift. (people have to be alive to get a gift.

2. Otherwise the gift lapses.

3. Unless the disposition is to the decedents/ testaters issue, or its to the issue of the parents siblings and then passes by representation.

UNDER INTESTACY
1. Rule - If the distributee is the spouse, parent, or grandparent, the gift lapses (fails).

2. Rule - If the distributee is the issue or issue of parents (siblings), then the gift does not fail, but passes by representation (per capita at each generational level).

UNDER A VALID WILL
1. Rule- Lapsed (failed legacies)- Generally beneficiaries must outlive the testator unless a contrary intention is expressed by will, OR the ANTI LAPSE STATUTE applies.

2. Rule- failed gifts become part of the residuary if the residuary fails it passes in intestacy.
Anti-Lapse Statute?
Under Anti-Lapse Testamentary Dispositions to the testators issue or siblings who predecease the testator do not lapse but vest in the issue or siblings surviving issue by representation. If the testators issue or sibling do not have surviving issue of their own, the gift lapses.
Surviving Beneficiary Rule?

(applies to the residuary)
By statute in New York, if the testator's residuary estate is devised to two or more persons and the gift to one of them lapses, the other residuary devisee take the entire residuary estate in proportion to their interests in the residue (absent contrary intent) or the application of the anti-lapse statute.
What is the default method of distribution in New York?
Distribution "by representation".
What is the general rule for distribution in New York?
General Rule- Unless expressly provided otherwise, a distribution BY REPRESENTATION, is the statutory default method of distribution in New York
A distribution by representation (per capita at each generation) occurs as follows:
1. Start with the closest generation to decedent which contains at least one surviving issue.

2. Divide the property so that all living and deceased members (who left surviving issue) in this generation are given and equal share.

3. Distribute one share to each of the issue in the generation who are living.

4. Combine the shares of the deceased members of this generation and the divide and distribute in the same manner as above among the takers at the next generational level.

5. Continue until all the property has been distributed. (at each generational level).
What is PER CAPITA distribution of property?
Per capita distribution of property is made to several persons- give everyone left an equal share.
Explain "per stirpes" distribution of property?
A per stirpes distribution of property occurs as follows: means the issue take what their deceased ancestor would have received only.

1. Start with the generation closest to the deceased ancestor which contain at least one surviving issue.

2. Divide the property so that all living and deceased members (who left surviving issue) in this generation are given equal shares.

3. Distribute one share to each of the issue in the generation who are living.

4. The deceased member's share is dropped to the next generation where they leave at least one surviving issue. Divide and distribute as above.

5. Continue until all the property has been distributed.
What are the inheritance rights of adopted children?
Adopted children and their issue have:

Rule A- Full inheritance rights from the adopting family and vice-versa.

Rule B. Child adopted by a new family has...no inheritance rights from their natural parents or kin.
Can a child adopted by a new family inherit from their natural parents?
Rule- Child adopted by a new family has no inheritance rights from their natural parents or kin.

Exception- Where a child is adopted by the spouse of a natural parent, the child and its issue can inherit from adopting parent and both natural parents.
What are the inheritance rights of an adopted child where the child is adopted by a relative?
If the child is adopted by a relative- If the adopted child is related to the decedent by both a natural relationship and adoption, the child inherits under the natural relationship unless the decedent was the adopting parent, in which case the chil;d inherits under the adoptive relationship.
What is a nonmarital child?
A child born out of wedlock.
What are the inheritance rights of a nonmarital child?
A child born out of wedlock ("nonmarital child") has full inheritance rights only from the mother.
When can a non-marital chld inherit from the natural father and paternal kin?
(5 Exceptions)
Rule- A non-marital child generally can only inherit from his mother.

Exception- a non-marital child can inherit from his father and paternal kin only if:
I. It is legitimized by marriage (father marries mother after child's birth);

OR

II. A FILIATION ORDER entered in a paternity suit during the fathers lifetime;

OR

III. ACKNOWLEDGED WITNESSED- Statement of Paternity- Father signs an instrument acknowledging paternity. The instrument must have at least one witness, must be acknowledged by the father before a notary public, and must be filed in the Putative Father Registry within 60 days after its making;

OR

IV. Paternity is established in the probate proceeding if it is established by:
(1) Clear and convincing evidence, and
(2) The father of the child has openly acknowledged the child as his own;

OR

V. A blood genetic marker test (DNA) is administered to the father plus other evidence proves paternity by clear and convincing evidence.
What are the inheritance rights of step-children?
Step-children do no inherit from or through their step-parents.
What is the rare exception allowing step children to inherit from their step-parent?
Exception- The doctrine of adoption by estoppel (sometimes called "equitable estoppel") permits a stepchild to inherit from or through his stepparents as though legally adopted. The doctrine is invoked where a person obtains custody of a child under an agreement with the natural parents that she will adopte the child, and she never carries out the agreement. The person agreeing to adopt and those claiming under her on her intestate death are estopped from denying the existence of a valid adoption, so fare as inheritance rights are concernted.
When will a lifetime gift qualify as an Advancement/Satisfaction of Legacy?
Purpose- to give a lifetime gift in whole or part in satisfaction of the legacy in a will. An advancement allows a testator to give as an intervivos gift what they intended to leave by will.

Requirements: A lifetime gift is considered to be an ADVANCEMENT or SATISFACTION OF LEGACY, only if:

1. The advancement must be an irrevocable gift

AND

2. Evidenced by a contemporaneous writing, signed by the donor or donee, expressing intent.

Bar exam trick is to make the gift revocable- most frequent revocable gift is a gift given in escrow to the agent of the donor and the donor dies.

C. Application- The advancement/satisfaction of legacy is deducted from the amount owed to the donee upon the donor's death. If an advancement is equal to, or greater than, the donee's actual interest, either under a will or via intestacy, the donee (or the donee's successor) may not share in the distribution of the decedent's estate, but does not have to return the excess. If the advancement is less than the donee's share or testamentary interest, the donee (or donee's successor) may collect the donee's full share of the decedent's estate, minus the amount of the advancement/satisfaction of legacy.
Can a distributee or beneficiary disclaim (renunciation) the gifts? (Tested alot)

What is the exception?
It can be disclaimed in whole or in part. The key part of the rule: The disclaimed interest passes as though the disclaiming party predeceased the passing party/decedent/disclaimer.

Exceptions: A distributee or beneficiary cannot disclaim to avoid federal tax liens. In New York, a distributee or beneficiary cannot disclaim in order to remain eligible for Medicaid because it is against public policy.

Why would anyone want to disclaim an inheritance?

1. Avoid Gift Taxes
2. Avoid Creditor Claims
What is the exception?
Exceptions: A distributee or beneficiary cannot disclaim to avoid federal tax liens. In New York, a distributee or beneficiary cannot disclaim in order to remain eligible for Medicaid because it is against public policy.

B. Requirements: For Disclaiming:

1. Need a writing, signed and acknowledged before a notary public.

2. The disclaimer must be accompanied by a separate sworn affidavit that she received no consideration for making the disclaimer (unless the court authorizes receipt of consideration for making the disclaimer (unless the court authorizes receipt of consideration for the disclaimer) ;

AND

Disclaimers must be irrevocable (if nothing is said, its irrevocable- default) Also, there is a filing requirement within 9 months.



C. Caveat: Disclaimer does not affect shares of other distributees. - If a disclaimer would result in a distribution of the property by representation (per capita at each generation). The interest passes as though the disclaimant dies on the same date but after the decedent. This rule applies only for the purpose of preserving the representational share of the disclaimant when the "per capita at each generation rule" is applied. For all other purposes, the disclaimant is deemed to have predeceased the decedent.

By disclaiming it triggers representation so we pretend they predeceased.

D. No disclaimer is allowed after the beneficiary has accepted a distribution of property or any of its benefits. No disclaimer is allowed after the beneficiary has entered into a contract to transfer or mortgage the property, or exercised any control over the property.


E. Additional parties that can disclaim:

1. Beneficiaries of life insurance, employees benefits plan, trusts, other nontestamentary transfers; surviving joint tenant or tenant by the entirety (to the extent the decedent furnished consideration for the tenancy's acquisition).
2. With court approval, the disclaimer can be made on a person's behalf by a guardian, holder of a durable power of attorney, or decedent's personal representative.
Why would anyone want to disclaim an inheritance?
1. Avoid Gift Taxes
2. Avoid Creditor Claims
What are the Requirements: For Disclaiming?
B. Requirements: For Disclaiming:

1. Need a writing, signed and acknowledged before a notary public.

2. The disclaimer must be accompanied by a separate sworn affidavit that she received no consideration for making the disclaimer (unless the court authorizes receipt of consideration for making the disclaimer (unless the court authorizes receipt of consideration for the disclaimer) ;

AND

Disclaimers must be irrevocable (if nothing is said, its irrevocable- default) Also, there is a filing requirement within 9 months.
What is the caveat?
C. Caveat: Disclaimer does not affect shares of other distributees. - If a disclaimer would result in a distribution of the property by representation (per capita at each generation). The interest passes as though the disclaimant dies on the same date but after the decedent. This rule applies only for the purpose of preserving the representational share of the disclaimant when the "per capita at each generation rule" is applied. For all other purposes, the disclaimant is deemed to have predeceased the decedent.

By disclaiming it triggers representation so we pretend they predeceased.
Disclaimer allowed?
D. No disclaimer is allowed after the beneficiary has accepted a distribution of property or any of its benefits. No disclaimer is allowed after the beneficiary has entered into a contract to transfer or mortgage the property, or exercised any control over the property.
Who are additional parties that can disclaim?
E. Additional parties that can disclaim:

1. Beneficiaries of life insurance, employees benefits plan, trusts, other nontestamentary transfers; surviving joint tenant or tenant by the entirety (to the extent the decedent furnished consideration for the tenancy's acquisition).
2. With court approval, the disclaimer can be made on a person's behalf by a guardian, holder of a durable power of attorney, or decedent's personal representative.
What happens if both spouses die simultaneously?
A. New York has adopted the Uniform Simultaneous Death Act.

B. If both spouses die simultaneously (i.e. sitting next to each other on an airplane that crashes), or it cannot be determined, which spouse died first, the property of each spouise is distributed as if each spouse survived the other unless the will says otherwise.

C. The act only applies when there is no sufficient evidence that the parties have died other than simultaneously or they provided otherwise in their wills.
What happens if an intestate distributee is not mentioned in the testator's will?

A. Under a valid will?

B. Under partial or full intestacy?
Under a valid will- Then they are impliedly disinherited. If I leave a spouse and don't mention under will, then I have impliedly disinherited spouse. BUT the spouse has a right of election- (can't disinherit the spouse but can disinherit anyone else)

B. Under partial or full intestacy- YES- RULE- The absence of a gift in a will does not prevent the distributee from collecting in intestacy.
What happens if the intestate distributee is specifically disinherited in the testator's will?

A. Under a valid will?

B. Under Partial or Full intestacy?
Negative Bequest Rule-

A. Under a valid will- The distributee takes nothing (includes surviving spouse)- but the spouse can come back with the right of election.

Effect: The distributee is treated as if she predeceased the decedent (triggers anti-lapse) .

B. Under Partial or Full Intestacy- The distributee does not collect intestacy- it's given its full effect- but still ends up in the issues hands.
Class Gifts

How is property distributed when a gift is given to a group of people?
General Rule- If a distribution in a will is made to a group of persons generically described as a class (i.e., "children," "brothers and sisters," etc.), The class members must survive the testator to take a gift.

Exception: _____
Class Gifts

Dispositions to "children"
Children by all marriages are included in dispositions to "children," but stepchildren and grandchildren are not included. Posthumous children are also included. Adopted and nonmarital children are presumptively included.
Class Gifts

Dispositions to "brothers and sisters"; "cousins";
Disposition to "brothers and sisters" include half-brothers and half sisters. DIspositions to "cousins" presumptively include first cousins only.
Class Gifts

Disposition to "issue" or "descendants":
For wills and trusts executed before September 1, 1992, issue or descendants in equal degree of kinship to their common ancestor take per capita, but if in unequal degree, they take per stirpes, unless a contrary intention is expressed. FOr wills and trusts executed on or after that date, issue or descendants take per capita at each generation (absent contrary provisions)).
Class Gifts

Disposition to "heirs" or "next of kin":
Absent contrary provision, a gift to a person's "heirs", "heirs at law," or "next of kin" is to the person's distributees as defined in the intestacy statute.
Class Gifts

Dispositions to "relatives" or "family":
The term "relatives" and "family" are construed to mean those who would take the mamed person's estate according to the intestacy statutes.
Class Gifts

Class Closing Rules

Rule of Convenience:
A class does not close (meaning no one else can be added) until some member of the class can call for distribution.
Class Gifts

Class Closing Rules

Outright Gift by Will
If any member of class is alive at the testators death, then the class closes at death (can call for distribution at death).
Class Gifts

Class CLosing Rules

Postponed Gifts (E.g corpus payable to class following a life estate in income)
The General Rule applies.
Class Gifts

Gift Closing Rules

Gifts Subject to Reaching a Given Age
1. For a present to a class contingent on members reaching a designated age, the class remains open until the first member of the class reaches the designated age, at which time the class closes.

2. For a future gift to a class contingent on members reaching a designated age, the class remains open until:

A. The preceding estate terminates,

AND

B. The first class member reaches the designated age.
Class Gifts

Gift Closing Rules

Per Capita Gifts
For per capita gifts, courts prefer a rule of construction that immediately determines class membership. Thus, with a per capita gift to "children of B," those children alive (or in gestation) at the testator's death take the gift; all others are excluded. If no children of B are in the class at the testator's death, the gift fails.
Class Gifts

Gifts By Implication
In New York, a court can find that the testator intended to make a gift even though the will does not contain language that expressly makes the gift; e.g., where it appears that the gift was unintentionally omitted. Thus, a life tenant's children can take the remainder by implication to correct situations resulting from obvious errors or omissions in wills.
WILL FORMATION AND EXECUTION

GENERAL STATEMENT ABOUT EPTL
The EPTL provides a statutory framework for the constrution of a valid will. These stringent execution and attestation formailies were designed to prevent the fraudulent alteration of decedents' wills. Substantial compliance with all formal statutory requirements must be shown, or probate will be denied.
WILL FORMATION AND EXECUTION

What are the six requirements for a validly executed will?
1. In writing

2. Signed by the testator at the end

3. Testator must sign or acknowledge their previous signature in presence of each witness

4. Testator must publish the will- Declare it's the will


5. Minimum of at least 2 witnesses who sign the will.

6. Witnesses must sign within 30 ays of each other.
WILL FORMATION AND EXECUTION

Writing requirement?

Does a will need to be typewritten?
No. A handwritten will that follows all the formalities will be a validly executed will.
WILL FORMATION AND EXECUTION

Writing Requirement

What if something follows the testator's signature?
General Rule- It is disregarded but does not invalidate the will NOR is it considered in distribution.
WILL FORMATION AND EXECUTION

Writing Requirement

Exception to matters following testator's signature being disregarded and not invalidating will?
Exception- If the matter following the signature is necessary to complete the will, then the will is invalid.
WILL FORMATION AND EXECUTION

Writing Requirement

Exception #2 (Attestation Clause)to matters following testator's signature being disregarded and not invalidating will?
Attestation Clause- provision at the end of a will that recites all the elements of due execution of a will. An attestation clause is not a prerequisite to a valid will, however, an attestation clause that recites all the facts of due execution establishes a prima facie case for probate of the will- Only corroborative evidence of execution... Witnesses still must testify but it is given effect even though it follows the signature.
WILL FORMATION AND EXECUTION

Writing Requirement

What fullfills the signature requirement?
Any mark intended as testator's signature fulfills the signature requirement.
Would a blind testator's hand being guided by another to signe the will as "love, mother." after the will is read aloud to him fullfill the signature requirement?

Would "love, mother." fullfill the signature requirement?
YES
If the testator is unable to sign the will, may another person sign the will?
YES, provided that such signing is in the testator's presence, ant at the testator's direction.
WILL FORMATION AND EXECUTION

Writing Requirement

If another person signs the will for the testator, in the testator's name, the signer must also affix the signor's own name and address to the will.

May the signor be counted as on eof the attesting witnesses?
NO, A will lacking the signer's signature is invalid, although a will lacking the signer's address will still be considered valid.
WILL FORMATION AND EXECUTION

Witnesses

How many witnesses are necessary for valid execution of a will?
The will must have 2 attesting witnesses. These witnesses may be called to testify before the surrogate as proof that the will was duly executed.
WILL FORMATION AND EXECUTION

Witnesses

What if the testator signs the will beforehand or signs it in the presence of only one witness?
Then they must acknowledge expressly or impliedly the previous signature
WILL FORMATION AND EXECUTION

Witnesses

What is the time requirement for witness signatures?
Witnesses must sign the will within 30 days of witnessing the signing.
WILL FORMATION AND EXECUTION

Witnesses

Do the witnesses need to know the contents of the will?
NO, they only need to know they are serving as witnesses to a will.
WILL FORMATION AND EXECUTION

Witnesses

Publication: What must the testator declare for valid publication?
The testator must declare to the witnesses that the instrument being signed is in fact the testator's will. Failure of the testator to publish his will is fatal to probate, even if all other requirements are met.
WILL FORMATION AND EXECUTION

Witnesses

Publication:

DOes the publication need to be made by the testator?
NO, someone else can publish the will, as long as it is done in the testator's presence.
WILL FORMATION AND EXECUTION

Witnesses

Publication

Codicil-What effect does a codicil have on the will?
Execution of a codicil republishes the will on the execution date of the codicil.
WILL FORMATION AND EXECUTION

Witnesses



Besides the 30 day rule, what is another time limit for valid execution on witnesses signing the will.
The witnesses must sign the will during the testator's lifetime.
WILL FORMATION AND EXECUTION

Witnesses

DOes the order and procedure matter in will execution?
NO, as long as the formalities are observed. However, failure of a witness to affix an address shall not affect the validity of the will.