Ny Bar 2007 Wills

Front 1

Application of the Intestacy Rules of Article 4 of the EPTL?

Back 1

1. The decedent leaves no will.
2. The decedent's will does not make a complete disposition of the estate.
3. An intestate distributee successfully challenges the will.

Front 2

Priority in appointing an administrator when decedent leaves no will

Back 2

1. Suriving spouse
2. Children
3. Grandchildren
4. Father or mother
5. Brothers or sisters
6. Any other distributee

Front 3

Distribution when intestate decedent leaves only a spouse

Back 3

Spouse takes the whole estate

Front 4

Distribution when intestate decedent leaves spouse and children

Back 4

Surviving spouse: $50,000 + 1/2 the residuary estate
Surviving issue: the remaining residuary estate

Front 5

Distribution when intestate decedent leaves only children

Back 5

If all children are alive: passes to the children in equal shares
If there are pre-deceased children: passes to the alive children and to the isue of the dead children "by representation" or "per capita"

Front 6

Distribution "per capita" or "by representation"

Back 6

1. Find the 1st generational level to take and divide the estate by the total number at that generation, both alive and pre-deceased.
2. All living persons at that level take one share.
3. Combine remaining share.
4. Repeat the procedure for the next generational level.
Always results in alive persons at each generational level receiving equal shares.

Front 7

Distribution "per stirpes"

Back 7

Children of the pre-deceased take their parent's share.
A will may provide for distribution per stirpes and the majority (not NY) use per stirpes distribution.

Front 8

Order of distribution for an intestate decedent not survived by spouse or issue

Back 8

1. Parents or surviving parent
2. Issue of parents
3. Grandparents & their children & grandchildren
4. Great grandchildren of grandparents
5. There is NO inheritance beyond great-grandchildren of decedent's grandparents: the estate escheats to the state.

Front 9

Spouse's disqualification from taking an intestate share

Back 9

We assume the surviving spouse has pre-deceased the decedent and drop their share to the children if DISMAL:

Divorce
Invalid divorce procured by the surviving spouse outside NY and not recognized by NY
Separation decree rendered against the surviving spouse
Marriage is void as incestuous or bigamous
Abandonment by surviving spouse
Lack of support by surviving spouse

Front 10

Inheritance rights of an adopted child

Back 10

Adopted children and their issue have full inheritance rights from the adoptive family and vice versa but have NO inheritance rights from their natural family.

Front 11

Inheritance rights of children adopted by relatives

Back 11

Adopted children related to decedent both naturally and adoptively take under the natural relationship only UNLESS decededent is the adopting parent then the adopted child takes under the adoptive relationship only.

Front 12

Class gifts and the adopted out child

Back 12

An adoptive child into a new family has NO inheritance rights from the natural family even if it is a class gift.

Front 13

Inheritance rights of non-marital children from the mother

Back 13

Children born out of wedlock have full inheritance rights from the mother and her family.

Front 14

Inheritance rights of non-marital children from the father

Back 14

Children born our of wedlock inherit from the father only if paternity is established.

Front 15

Establishing paternity

Back 15

1. Legitimated by marriage: father subsequently marries the mother.
2. Order of filiation: paternity suit during father's lifetime adjudicating the man to be the father's child.
3. Father files a witnessed, acknowledged affidavit of paternity with the Putative Father Registry.
4. After the death of the father paternity is established in a probate proceeding by clear and convincing evidence and the decedent openly and notoriously acknowledged the child as his own.
5. DNA and clear and convincing evidence if rebutted.
NOTE: support by father is not enough.

Front 16

Advancements (Lifetime Gifts to Intestate Distrbutees)

Back 16

Common Law: gift to children were presumed an advancement of their intestate share.
NY: there is no presumption of advancement unless proved by a contemporaneous writing made at the time of the gift signed by either the donor or the donee.

Front 17

Satisfaction of Legacies (Lifetime Gift by Testator to Beneficiary)

Back 17

Common Law: a lifetime gift to a beneficiary named in a donor's will (executed before the gift was made) was presumptively in partial or total satisfaction of the legacy, to be applied against the amount to which the beneficiary was entitled to under the will.
NY rejects the common law: an inter vivos gift is treated as a satisfaction of the legacies only if there was a contemporaneous writing made at the time of the gift signed by either the donor or the donee.

Front 18

Renunciation (disclaimer by intestate distributee or will beneficiary)

Back 18

No one can be compeleled to be a beneficiary under a will or to take property by operation of law. A will beneficiary or intestate distributee may disclaim or renounce, in whole or in part, their interest in the decedent's estate.

Front 19

Renunciation (disclaimer) requirements

Back 19

1. A writing singed and acknowledged.
2. An affidavit stating that no consideration was secured and no one paid the beneficiary to disclaim.
3. The disclamer must be irrevocable.
4. The disclaimer must be filed witht he Surrogate Court within 9 months of the decedent's death.

Front 20

Probate

Back 20

The Surrogate Court proceeding which judicially determines the will was validly executed and determines the intestate distributees and puts them on notice.

Front 21

Executor

Back 21

A personal represenative named in the will is appointed by the Surrogate Court during probate to administer the decedent's estate.

Front 22

Valid Will Execution

Back 22

1. Signed by the testator or someone in their direction and presence.
2. Testator's signature must be at "the end thereof"
3. Testator must sign the will or acknowledge his earlier signature in the presence of each witness.
4. Testator must publish the will, declaring the document to be their "last will and testament".
5. There must be at least 2 attesting witnesses.
6. The attesting witnesses must sign within 30 days of eachother.

Front 23

Requirements when someone signs the will on behalf of the testator

Back 23

Will must be signed at testator's direction and in testator's presence. In addition:
1. Signer must sign their name.
2. Signer may not be counted as a witness.
3. Signer must affix their address (although failure does not invalidate the will).

Front 24

Effect of signing "at the end thereof"

Back 24

Words following the signature are not given effect unless the matter following the signature is so material that to give effect to words abvove the sinature without those below would defeat testator's intentions.

Front 25

Codicil

Back 25

A later amendment of supplement to a will which is executed with the same formalities as a will.

Front 26

Burden of Proof for will validity

Back 26

The burden of proof is on the will proponent.
1. The will is self-proved or
2. Testimony of both witnesses, although 1 will suffice if the other is incompetent.
3. Proof of the signature of the testator and at least one witness if neither witness is competent.

Front 27

Attestation Clause

Back 27

Prima facie evidence of the facts presented and requires:
1. Appears below testator's signature but aboce the witnesses' signatures and
2. States all the elements of due execution

Front 28

Self-proving Affidavit

Back 28

Substitutes for live testimony unless an intersested party objects to the will. It is attached to the back of the will and is a sworn statement by the witnesses that recites all the statements they would make if they wer called to testify in court. It may be signed any time after the will is executed.

Front 29

Interested Will Statute

Back 29

In order to avoid faud, a bequest to an interested witness is void unless:
1. Supernumerary Rule: there were at least 2 other disinterested witnesses, or
2. Intestate beneficiary: the interested witness would also be an intestate beneficiary if testator dies without a will

Front 30

Interested Witness' share if entitled to take as an intestate beneficiary

Back 30

Whichever is Least Rule: the interested witness would take the lesser of the bequest under the will or the intestate share.

Front 31

The Foreign Will Act

Back 31

A will is admissible to probate in NY if was validly executed under:
1. the law of the state where it was executed or
2. NY law or
3. the law of the state where the testator was domiciled at execution of the will or at death.
Note: once the will is admitted, NY law governs the construction and application of its provisions.

Front 32

Holographic Will

Back 32

A will entirely in testator's handwriting that is signed, but not witnessed. VOID in NY unless member armed forces or mariner at sea.

Front 33

Nuncupative (oral) Will

Back 33

An oral will. Void in NY except for members of the armed forces or mariners at sea.

Front 34

Lawyer Malpractice

Back 34

There is no privity of contract between the drafting attorney and the beneficiaries --> the lawyer's duty runs only to the testator.

Front 35

Revocation of Wills

Back 35

1. Subsequent testamentary instrument.
2. Physical act.
3. Implication.
4. Proxy: physical act of another.

Front 36

Revocation by Subsequent Testamentary Instrument

Back 36

Made by a validly executed instrument.
Usually contains the words "I hereby revoke all wills heretofore made by me"

Front 37

Revocation by Physical Act

Back 37

Must show intent to revoke:
1. Void written across whole page or
2. Removal or crossing out signature.

Front 38

Revocation by Implication

Back 38

When there is a lack of revocation language on a subsequent testamentary instrument:
1. Read the 2 instruments together;
2. Treat the 2nd will like a codicil;
3. Revoke the 1st will only to the extend there are inconsistent provisions.

Front 39

Revocation by Proxy (physical act of another person)

Back 39

Valid revocation requires the physical act to be:
1. made at the testator's request and
2. made in the testator's presence and
3. witnessed by at least 2 witnesses of the act.
Note: this means that 4 people are necessary --> the testator, the proxy and 2 witnesses.

Front 40

Revocation presumptions when will not found or found mutilated

Back 40

1. Presume testator revoked if will was last seen in testator's possession or control.
2. Presume foul play if will was last seen in the possession or control of someone adversely affected by the will provisions.
Note: extrinsic evidence admissible to rebut presumptions.

Front 41

Partial revocation by physical act

Back 41

Partial revocation by physical act is not recognized in NY

Front 42

Words added to the will

Back 42

Words added to a will after the formalities are completed are NOT recognized in NY

Front 43

Requirements to change a will after will execution

Back 43

1. A new will formally executed or
2. A codicil formally executed.

Front 44

Revival of Revoked Wills

Back 44

A will that has been revoked by a later will containing a proper revocation clause CAN NOT be revived simply by destroying the later will.

Front 45

Dependent Relative Revocation

Back 45

Revocation of a 2nd will made dependent on the mistake of law that the 1st will would be revived negates the revocation, that is, the 2nd will survives.

Front 46

NY Anti-lapse Statute

Back 46

If a will beneficiary dies during testator's lifetime, the gift fails or lapses into the residuary unless
1. the pre-deceased beneficiary is testator's issue or sibling AND
2. the pre-deceased beneficiary leaves issue.

Front 47

Lapse in Residuary Gift: The Surviving Residuary Beneficiary Rule

Back 47

If the testator's residuary estate is devised to 2 or more persons and the gift to one of them lapses and is not saved by the anti-lapse statute, the other residuary beneficiaries take that share in proportion to their interests in the residue.

Front 48

Class Gift Rule

Back 48

If a will makes a gift to a group of persons generically described as a defined class (children, brothers & sisters...) and some class members pre-decease the testator and are not saved by the anti-lapse statute, the surviving alive class members take absent contrary will provisions.

Front 49

Rule of Convenience

Back 49

A class is closed and later-born members are excluded at the time distribution of the class must be made.

Front 50

Uniform Simultaneous Death Act

Back 50

NY has adopted the USDA. If 2 persons die under circumstances such that there is insufficient evidence that they have died otherwise than simultaneously, the property of each is distributed as though the other party pre-deceased the testator.
Under the USDA there is NO right to survivorship in joint property --> passes as though it was a tenancy in commmon.

Front 51

Effect of testator's marriage after will execution

Back 51

The right of election is available to the spouse

Front 52

Effect of divorce after will execution

Back 52

Divorce or annulment revokes appointments in favor of former spouse except appointment of former spouse as guardian of the children. Reconciliation and remarriage restores the provisions.
Note: separation decree is not enough to revoke provisions.

Front 53

Pretermitted Children

Back 53

A pretermitted child is one in gestation, born or adopted after will execution and are not provided for by any settlement (the will, life insurance, gifts, trusts).

Front 54

Pretermitted children when testator had at least 1 child alive at will execution

Back 54

1. If no provision is made in the will for any children, an after-born child inherits nothing.
2. If the will made gifts to the other children, the after-born child shares. Donated total is evenly split, pretermitted child's share is fulfilled proportionally from other children's gifts.
3. If it appears testator's intentionwas to make a limited provision to his then-living children, the after-born child takes his intestate share.

Front 55

Pretermitted children when testator had NO living children at will execution

Back 55

Pretermitted child takes intestate share funded proportionately from the beneficiaries under the will.

Front 56

Incorporation by Reference

Back 56

Common Law: the terms of an extrinsic document, not present atthe time the will is signed can be incorporated by reference if i) the document was in existence at the time the will was drafted and ii) the will shows an intent to incorporate the document and iii) the extrinsic document is clearly identified by language in the will.
NY does NOT recognize incorporation by reference.

Front 57

Acts of Independant Significance (Non-testamentary Acts)

Back 57

Acts with their own purpose or motive independent of any testamentary purpose occurring AFTER the will is executed should be given full effect when the distribution is made.
Example: testator leaves automobile to A. It was a Taurus at will execution, it is now a Mercedes. A gets Mercedes.
Exceptions: titled documents such as deeds, stock certificates and bank books can only be transferred as mandated by law.

Front 58

Non-Probate Assets

Back 58

Interets in property that are not subject to disposition under the will and are thus not part of the probate estate include:
1. Property passing by right of survivorship;
2. Property passing by contract;
3. Property held in trust;
4. Property over which decedent held a power of appointment.

Front 59

Classification of Gifts made by a Will

Back 59

1. Specific gift
2. Demonstrative legacy: a general amount from a specific source (designating where the money is coming from)
3. General legacy: a money gift
4. Residuary disposition: the rest of the estate
5. Intestate property: if a partial intestacy results and there is no residuary clause, the gift falls into intestate property.

Front 60

Abatement of Legacies to Satisfy Estate Creditor's Claims

Back 60

Debts are paid from funds in the following order:
1. Intestate property
2. Residuary
3. General legacy (abates pro rata)
4. Demonstrative legacy
5. Specific gifts
6. Items qualifying for the estate marital tax deduction always abate last.

Front 61

Specific Gifts of Encumbered Property

Back 61

Common Law: the testator is personally liable for liens on specific bequests so the beneficiary is entitled to have teh lien exonerated from the residuary.
NY: Liens on specfically bequested property ARE NOT exonerated unless the will explicitly and specifically directs exoneration (general provisions for payment of debts do not exonerate liens)

Front 62

Ademption

Back 62

Failure of a gift.
Specific gifts not found or owned by testator at death fail under the doctrine of ademption.
Demonstrative legacies become general legacies if there is no cash available from the specific sourc designated.

Front 63

Statutory exemptions to the Ademption Doctrine

Back 63

1. Insurance proceeds paid after death on lost or damaged property go to the beneficiary of that property.
2. Executory contracts: beneficiary gets any sales proceeds paid after death.
3. Beneficiary entitled to traceable proceeds of specifically bequeathed property sold by guardian or conservator of testator.

Front 64

Bequest of Stock in Publicly Traded Companies

Back 64

Treated as general legacies unless testator evidences intention to make specific bequest (such as "my IBM stock").
If testator makes general legacy of stock that splits, it is treated like a specific bequest (beneficiary gets benefit of split).

Front 65

Bequest of Stock in Closely Held Corporations

Back 65

Always treated as a specific legacy which adeems if non-existent.

Front 66

Stock distributions after death

Back 66

Distributions such as dividends made after death go to the beneficiary of the underlying stock.

Front 67

Stock acquired in a share trade

Back 67

Share trades are treated as a change in form, not substance, so a beneficiary of a specific bequest of stock that no longer exists because of a share trade is entitled to the shares in the new company.

Front 68

Presumption of the Plain Meaning of the Will

Back 68

Absent suspicious circumstances, it is conclusively presumed that testator read the will and intended the consequences.

Front 69

Latent Ambiguities: errors not evident by looking at or reading the will

Back 69

Extrinsic evidence is admissible to clarify the meaning of the testator's words including:
1. Facts and circumstances evidence;
2. Testator's declaration of intent to 3rd parties;
3. Testator's statement to preparing attorney.
Note: if not cured by extrinsic evidence the gift fails because there is no ascertainable beneficiary.

Front 70

Patent Ambiguities: mistakes that appear on the face of the will

Back 70

Extrinsic evidence is permissible to clarify including:
1. Facts and circumstances;
2. Testator's statements to the preparing attorney;
BUT NOT testator's declarations to 3rd parties.

Front 71

Precatory Language

Back 71

Language such as "I wish" or "I would like" does not impose a mandatory distribution.

Front 72

Conditional Wills

Back 72

A will conditioned upon a specific instance of potential death.
Two arguments:
1. Probate should be denied because the condition did not occur or
2. Condition does not need to occur, rather it merely reflects testator's motive or inducement for making a will.

Front 73

Joint Wills

Back 73

The will is considered a contract only if established by an express statement that the will provisions are intended to be a contract between the parties.
Survivor breaches by writing a will with inconsistent provisions.
May only be revoked by the parties while both still alive.

Front 74

Effect of Breach of a Joint Wills Contract

Back 74

The breaching will is probated.
A constructive tust is imposed in favopr of the original intended beneficiaries.

Front 75

Negative Bequest Rule

Back 75

Common Law: when the will does not make a complete distribution of the estate resulting in partial intestacy, words of disinheritance in the will are ineffective with respect to intestate property.
NY: Words of disinheritance are given full effect even in partial intestacy:
1. The disinherited distributee is treated as though he pre-deceased the teatator.
2. Does not effect issue of disinherited distributee.

Front 76

Elective Share Statute

Back 76

Protects surviving spouse against disinheritance by giving spouse entitlement to a share of decedent's estate equal to $50,000 + 1/3 augmented estate satisfied by pro rata contribution from all other beneficiaries of the will

Front 77

Reason for Testamentary Substitutes

Back 77

These are added to the probate estate in computing elective share in order to prevent spouse from having the ability to disinherit by moving all assets to non-probate assets.

Front 78

Items not considere testamentary substitutes

Back 78

1. Life Insurance proceeds
2. 1/2 of qualified pension and profit-sharing benefit (beneficiary named before 9/1/92)
3. Pre-marriage irrevocable transfers
4. Irrevocable dispositions made more than 1 year before death
5. Transfers during the marriage with a retained life estate that are irrevocable and made before 9/1/92

Front 79

Augmented Estate

Back 79

Elective share applies to property owned at death and the following testamentary substitutes:
1. Totten trusts
2. Survivorship estates: joint tenancies, tenancies by the entirety and survivor bank accounts made after 9/1/66 --> if with 3rd party surviving spouse must prove deposited amounts traceable to decedent; if with surviving spouse, 1/2 is a testamentary substitute regardless of contributor.
3. Lifetime transfers with a retained poer to revoke, invade, consume or dispose of principal or to name new beneficiaries and irrevocable transfers made during the marriage with retained life estate if made after 9/1/92.
3. Employee pension, profit-sharing and deferred-compensation plans if benefciary was designated on or after 9/1/92 and after marriage --> 1/2 is a t-sub
4. Gifts made within 1 year of death in excess of 12k gift tax exclusion
5. Gifts causa mortis
6. United States government bonds
7. Powers of Appointment that are presently exercisable general powers (not testamentary)

Front 80

Elective Share Trusts

Back 80

Prior to 9/1/94, the right to an elective share could have been satisfied through the sue of an elective share trust giving the surviving spouse a life estate as long as there was i) a $50K outright payment AND ii) life estate in a trust whose principal equalled or exceeded 1/3 of the elective share amount.
Life estates ("terminable interests") no longer satsify the elective share entitlement.

Front 81

Procedural Rules Governing Election of Spousal Elective Share

Back 81

The right is personal to the surviving spouse.
Must be elected within 6 months of the start of probate proceedings or if no probate, within 2 years of the death of decedent.
Waiver is permitted with or without consideration, in a signed and acknowledged writing.
General waiver to election in an ante-nuptial agreement valid as to elective share but not to specific bequests.
Spouse must be domicile of NY at decedent's death or will mustbe governed by NY law.

Front 82

Personal Property Exempt from Decedent's Probate Estate

Back 82

1. Car (up to 15K)
2. Furniture, appliances, computers (up to 10K)
3. Cash (up to 15K)
4. Animals and farm machinery (up to 15K)
5. Books, pictures, videotapes & software (up to 1K)
Total value up to 56K

Front 83

Disqualification of Spouse from taking Elective Share or Exempt Personal Property

Back 83

DISMAL:
Divorce or annulment valid in NY.
Invalid divorce or annulment procured by surviving spouse.
Separation decree rendered against surviving spouse.
Marriage is void due to incest or bigamy.
Abandonment by surviving spouse.
Lack of support by surviving spouse.

Front 84

Testator's Testamentary Capacity

Back 84

Testator must have sufficient capacity to
1. understand the nature of the act
2. know the nature and approximate value of his property.
3. know the natural object of his bounty.
4. Understand the dispositions that he is making.

Front 85

Insane Delusion Producing the Testamentary Act

Back 85

Will is void if testator is otherwise sane, but his will is the result in a belief in imaginary facts.

Front 86

Undue Influence on the Testator

Back 86

Existence of testamentary capcity subjected to and controlled by a dominant influence of power.
Contesting party must show:
1. existence and exertion of influence and
2. effect of such influence was to overpower the mind and will of the testator and
3. the product is the will or a gift in the will that would not have been made but for the influence.
Note: mere opportunity to exert influence is not enough; mere susceptability to influence is not enough; unequal distributions to children is not enough.

Front 87

Putnam Scrutiny

Back 87

Gifts to the drafting attorney are presumed made under undue influence. The court automatically inquires into whether the gift was voluntarily made.

Front 88

Drafting Attorney as Executor

Back 88

The drafting attorney may be named executor in the will. The attorney must disclose to the testator while alive via a signed and acknowledged writing witnessed by 2 witnesses that:
1. any person can be named executor;
2. the executor receives a statutory commission;
3. the attorney handling the estate will also be entitled to legal fees for representing the estate;

Front 89

No Contest Clauses (In Terrorem Clauses)

Back 89

A clause in a will that says any persons objecting take nothing.
Marjority: the clause is given full effect unless the contest is brought in good faith and with probable cause.
NY: the clause is given full effect even if ther was probable cause to challenge except if the contest concerns:
1. Forgery.
2. Revocation by a later will.
3. Contest is filed on behalf of an incompetent by a guardian.
4. It is a proceeding to construe the terms of the will.
5. An objection to the court's jurisdiction.

Front 90

Powers of Appointment Defined

Back 90

An authority created in or reserved by a person enabling that person to designate, within limits prescribed by the donor (creator of the power), the persons who shall take the property and the manner in which they take it. If the donee fails to exercise, the takers in default take if specified.

Front 91

General Power of Appointment

Back 91

A donee can appoint to himself, his creditors or to his estate as if he owned the property himself.

Front 92

Special Power of Appointment

Back 92

A limited power of appointment such that the donee may not appoint to himself.
This is not a testamentary substitute because the donee can not get at the principal during his lifetime.

Front 93

Presently Exercisable Power of Appointment

Back 93

The donee can exercise the appointment now, during his life.
If the powers are not exercised during donee's life the principal will be distributed through the donee's estate unless prohibited in donor's will.
Presently exercisable general powers of appointment are testatmentary substitutes because the donee can appoint the principal to himself during his life.

Front 94

Testamentary Powers of Appointment

Back 94

The donee can only appoint by his will.
A general disposition in donee's will is sufficient unless the instrument creating the power of appointment called for its exercise by specific reference in donee's will.
A general testamentary power of appointment is not a testamentary substitute because donee can not get at principal during his life.
Testator's creditors may not reach the assets subject to the power except if the donee was the donor of the power or donee exercises the power in favor of his estate in his will.