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213 Cards in this Set

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What bodies of law govern wills and estates in NY?
1) Estates Powers & Trust Law (EPTL);
2) Surrogate's Court Procedure Act (SCPA)
What does intestate mean?
When a person (decedent) dies without a will.
What does testate mean?
When a person (decedent) dies with a will (person is testator).
What is an administration proceeding?
A surrogate court proceeding to appoint a personal representative, also known as an administrator, to administer the estate of a person who dies without a will.
What is a probate proceeding?
A surrogate court proceeding to admininster the property of a person who dies with a will (person who administers is called the executor).
What does operation of law mean?
Property that passes automatically because of the way title is held in the property and is not affected by intestacy rules of by a will.
What does "issue" mean?
All persons who have descended from a common ancestor. Synonymous with "descendants." Includes those in direct line of inheritance with the decedent, i.e., children, grandchildren, etc.
What is a residuary estate?
The Balance of the Testator's estate after all claims, taxes, and "particular" bequests have bee distributed. The remainder or rest of the estate.
What is the term for those individuals who inherit property under intestate succession?
Distributees (or heirs, but NY prefers distributees)
What are those beneficiaries who inherit real property under a will called?
What is the term for those who inherit under a Will?
What are those beneficiaries who inherit personal property under a Will called?
What is the probate estate?
Assets held in the decedent's name alone that do not pass by operation of law and that which the Executor administers in accordance with the decedent's will.
What is the basic purpose of probate proceedings?
1) To prove a document is the last validly executed Will of the decedent; and
2) To appoint an executor to administer the estate.
When do such rules typically apply?
Article 4 of the EPTL, When:
1) Decedent left no will (or left a will that was not properly executed);
2) Will does not make a complete disposition (partial intestacy); or
3) An heir ("distributee") successfully contests the Will, and the Will is denied
What is the result where the intestate decedent is survived by a spouse, but not by any issue?
The surviving spouse takes the entire estate. Parents, siblings, etc. get nothing.
What is the result where the intestate decedent is survived by his spouse and one or more children or their issue (decendants)?
1) The surviving spouse takes the first $50,000 off the top of the estate and half of the balance;
2) The issue inherits the rest.
What if some of the issue are from this marriage and some are from another marriage?
Doesn't matter - all issue treated the same here.
If an intestate decedent is survived by children only, what is the result?
The whole estate passes to the kids in equal shares.
What is the result where the intestate decedent is survived by children and the issue of predeceased children?
The living children each take a share based on the number of children the testator had (i.e. 3 kids=1/3 share) and the remaining assets are evenly divided amongst the issue of the pre-deceased children. This is per capita distribution at each generation.
What steps are involved in distributing an estate PER CAPITA at each generation?
1) First, the property is divided into as many equal shares as there are at the first generational level at which there are survivors (usually children);
2) Then, all living persons at that first generational level take one share;
3) Finally, the shares of the deceased persons at the first generational level are combined and then divided equally among the takers at the next generaltional level in the same way.
What is the rule for dividing up an estate Per Capita?
"Equally Near; Equally Dear." Persons in the same degree of kinship to the decedent always take equal shares.
Explain "per stirpes" distribution of property? How is this designated?
Pre-1992 in NY, the ditribution was per stirpes under which the issue of deceased children take the share that her parent would have inherited if the parent was living. This must be designated specifically in the Will.
Are in-laws counted as issue or legal descendents for intestate distribution?
Heck No.
What if one of the predeceased children had left a will granting "any interest he has in his mother's estate" to his wife, then will the in-law take?
NO. Because he had no interest in his mother's will at the time he died. He had a mere expectancy, which is not a legal right or interest that you own and can pass along in a will - not a property right.
What is the priority list for an intestate decedent not survived by spouse or issue?
1) All to parents or surviving parent;
2) If not survived by parents, issue of parents (brothers, sisters, issue of deceased brothers and sisters), who take per capita at each generation;
3) 1/2 to maternal grandparents or surviving grandparent or (if neither is living) to their children and grandchildren, who take per capita at each generation and 1/2 to paternal grandparents or grandparent in the same matter. If no maternal grandparents, or their children or grandchildren, all to paternal grandparents and their issue and vice versa;
4) If none of hte above, great grandchildren of grandparents. If decedent's nearest kin are great grandchildren of grandparents, 1/2 to great-grandchildren on maternal side and 1/2 to great-grandchildren on paternal side;
5) No inheritence beyond great grandchildren of grandparents. If nearest kin are great great grandchildren of grandparents, or issue of great grandparents, the estate escheats to NY.
When is a spouse disqualified from taking their intestate share?
D - Divorce (final decree of divorce or annulment valid under NY law;
I - Invalid divorce procured by a surviving spouse, outside of NY, divorce or annulment not recognized as valid under NY law (doesn't bar the surviving spouse if deceased spouse procured the invalid divorce or annulment);
S - Separation decree rendered against the surviving spouse (doesn't bar spouse if the final decree of separation was rendered agaisnt the deceased spouse);
M - Marriage is void (as incestuous or bigamous);
AL - Abandonment and Lakc of support - surviving spouse abandoned or refused to support deceased spouse.
What if the Husband and Wife enter into a separation agreement and live apart from each other, but there is no decree of separation?
The surviving spouse is not disqualified from filing for an elective share. There must be a separation decree rendered against the surviving spouse, unless the separation agreement contains specific language waiving one's rights under EPTL.
What happens if the spouse is disqualified from collecting her elective share?
The matter is treated as though the spouse pre-deceased the dead spouse and her shares drop to her issue or the next in line.
When are gifts and fiduciary appointments in favor of former spouse revoked?
Gifts and fiduciary appointments in favor of former spouse are revoked only if final decree of divorce or annulment. Thus a decree of separation disqualifies the surviving spouse from filing for an elective share, but does not disqualify the spouse from taking under the decedent’s Will.
How are half blood relatives treated?
As if they were relatives of the whole blood.
What are the inheritance rights of adopted children: New family? Spouse of natural parent?
1) Adopted children and their issue have FULL inheritence rights from the adopting family (and vice versa).
2) A child adopted by a new family has NO inheritance rights from natural parents of their kin.
3) EXCEPTION: Where a child is adopted by the spouse of a natural parent, the child and its issues can inherit from ALL THREE LINES.
What if a child is adopted by a relative (e.g. aunt or uncle)?
There is a special rule: 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 child inherits under the ADOPTIVE RELATIONSHIP.
What is the rule for adopted out childrern and class gifts?
Adopted out children do not take as beneficiaries of class gifts made in the Will of a member of the child's natural family. Why?
1) Allowing would be against NY policy that seals adoption records; and 2) Adopted out children have a new family from which to inherit.
What if the "adopted out" chlid had been adopted by a relative?
Then he would be included in the class gift b/c he would inherit under the natural relationship, not the adoptive relationship.
What are the inheritence rights of non-marital children?
1) A child born out of wedlock ("nonmarital child") has full inheritance rights from the mother (and mother's kin" and vice versa.
2) However, the chlid inherits from the natural father ONLY IF paternity is established.
How can paternity be estalished?
By one of the following tests:
1) Legitimated by marriage (father married mother after child's birth); or
2) Order of filiation in a paternity suit, entered during the father's lifetime adjudicating the man to be the child's father; or
3) Father files a witnessed and acknowledged affidavit of paternity with the putative father registry; or
4) **After death, paternity is established in probate proceeding by clear and convincing evidence AND the father openly and notoriously acknowledges the child as his; or
5) **A blood genetic marker test (DNA) plus other evidecne proves paternity by clear and convincing evidence.
What is the NY rule with respect to lifetime gifts to intestate distributees?
NY REJECTED the CL presumption that a lifetime gift is an advancement of an intestates share. By NY statute, there is no advancement unless proved by a CONTEMPORANEOUS writing made at the time of the gift that is SIGNED by the donor or the donee. **Contemporaneous requirement is very strict
So, where there has been no contemporaneous writing with a lifetime gift, and parent dies intestate, how is distribution made amongst children?
Equal shares - ignore any lifetime gifts.
Where the gift IS considered an advancement, how is the estate distributed?
Take the value of the estate and add the value of advancement property at the date-of-death; the total is distributed evenly amongst the children (with the child who received the lifetime gift subtracting the value of the gift out of his share).
What was the common law rule with respect to lifetime gifts from the testator to a beneficiary ("satisfaction of legacies")?
At CL, a lifetime gift to a beneficiary named in a donor's will (executed before the gift was made) was presumptively in partial satisfaction of the legacy, to be applied against the amount to which the beneficiary was entitled under the Will.
What is the NY rule with respect to lifetime gifts by testator to beneficiary ("satisfaction of legacies")?
NY has rejected the "satisfaction of legacies" presumption by statute (that a lifetime gift to a beneficiary named in the previously written will was presumptively in partial satisfaction of the legacy. In NY, such a gift is NOT treated as a satisfaction of legacy UNLESS proved by a CONTEMPORANEOUS writing made at the time of the gift that is SIGNED by the donor or donee.
What is the rule with respect to disclaimer or renunciation by intestate distributee or beneficiary?
1) No one can be compelled to be a beneficiary under a Will or to take property by intestacy.
2) A beneficiary under a Will or an intestate heir can disclaim or renounce (in whole or in part) their interest in the decedent's estate.

Note: Beneficiaries of life insurance policies, benefit plans, trusts, joint tenancies, etc. can also renounce their claims.
What is required to be a valid disclaimer?
1) Must be in writing, signed and acknowledged (before a notary public);
2) Must be accompanied by a separate sworn affidavit that they received no consideration for making the disclaimer (unless court authorizes the receipt of consideration for the disclaimer);
3) Must be irrevocable (Feb 1999) (after disclaimer is filed, you can't change your mind);
4) The Will must be filed with the Surrogate's Court wihtin 9 months after decedent's death.
How is property distributed if disclaimed by distributee?
Disclaiming party's share is distributed as though he had predeceased the decedent. Their share goes to their issue. (anti-lapse statute)
it would be an inequitable result where the disclaimer's children would claim more money in total. In that case we treat it as though the disclaimer died one day after the testator.
In what situations may an heir or beneficiary NOT disclaim?
1) In order to remain eligible for Medicaid;
2) To defeat a federal tax lien.
What does probate refer to?
The Surrogate's Court proceeding in which: 1) it is judicially determined that the decedent died with a validly executed will and his or her heirs or intestate distributees are determined AND; 2) a personal representative named in the Will, the executor, is appointed by the court to adminsiter the decedent's estate.
What happens if there is no Will left by the decedent?
An administrative proceeding is started by a distributee to be appointed administrator of the estate.
What is the order of priority for appointment as administrator?
1) Spouse;
2) Children;
3) Grandkids;
4) Parent;
5) Siblings;
6) Other collateral relatives(follows intestate distribution rules)
What are the requirements for a validly executed Will?
6 Point Test:
To have the capacity to make a Will, the testator must be 18 years old.
1) Signed by Testator (or by someone at testator's direction and in her presence);
2) Testator's signature must "be signed at the end thereof," meaning at the end of hte document;
3) Testator must either sign the will (or acknowledge earlier signature) in presence of each witness;
4) Will publication;
5) 2 Attesting Witnesses;
6) Execution ceremony must be completed within 30 days.
What is required where T's name is signed by another person (proxy signature)?
Such person (Proxier):
1) Must also sign her name;
2) Cannot be counted as one of the two necessary witnesses; and
3) Shall affix her address (But will not void for failure to do so)
What is the Will publication requirement?
Publish= "He must declare the document to be his last Will and testament - must communicate to the witnesses that they are witnessing a Will.
When does the 30-day time period for completion of the excecution ceremony begin to run?
When the first WITNESS signs (not when the testator signs)
What is a codicil? How must it be executed?
A later amendment or supplement to a Will. It must be executed with the same formalities as a Will (6-Point Test)
What are other formalities required in some states, but not required in NY?
NY Does NOT require that:
1) Witnesses sign in each other's presence;
2) Witnesses sign in the testator's presence.

Key to NY: Testator MUST sign or acknowledge her signature in the presence of the witnesses.
Is a Will admissible to probate that is not signed at the end therof? What are the exceptions?
Yes. The only consequence is that the words following the signature are ignored.

Exception: The entire Will is invalid ONLY IF: what came after the signature was so important and material that ignoring it and enforcing everything else in the Will would defeat the testator's intention.
When will the testator be considered to have acknowledge his signature to a witness?
When you give a witness your will with your signature showing in NY, that is a tacit acknowlegement.
Who has the burden of proof as to due execution?
WILL PROPONENT bears the Burden of Proof (the one offering the Will for probate; usually the executor)
What is the requirement to prove due execution?
If Will is not self-proved, both attesting witnesses must testify as to the facts necessary to show due execution.
When will the testimony of one witness suffice?
If one witness is dead, absent from the state, incompetent, or cannot with due diligence be found.
What if none of the witnesses are able to testify?
Will proponents must prove two signatures - the signature of testator and one witness.
What is an attestation clause?
Appears below testator's signature and above the witnesses' signatures and recites all of the elements of due execution (ate, signature, witnesses, will, people present). This is not required in any state. An attestation clause serves as prima facie evidence of the facts presented.
What is a self-proving affidavit?
Witnesses sign a sworn affidavit in the presence of a notary public that recites all statements they would make if called to testify in court. Affidavit is usually signed at the same time as the will is executed. Unlike an attestation clause (which is merely corroborative of Ws testimony - you have to call the Ws to testify, or else prove their signature), a self-proving affidavit is a legal record of the witnesses. The affidavit serves the same function as an interrogatory or deposition, i.e., it is sworn testimony.
What effect does the self-proving affidavit have on probate?
The Will is admissible to probate on the strength of the sworn recitals in the affidavit UNLESS an interested party (an heir, or legatee under an earlier Will) objects, in which case the formal rules of proof of due execution apply and you must call the two attesting witnesses to testify.
What is the effect of a Will beneficiary being an attesting witness?
The fact that a Will beneficiary is an attesting witness never affects the validity of the Will.
BUT, the only consequence is that the bequest to the witness is void UNLESS:
1) Supernumerary rule applies (3+ witnesses and 2 were disinterested);
2) Witness would be a distributee (intestate heir) if testator had died w/o a Will.
Under the Interested Witness Statute, what happens when an attesting witness would have been a distributee if Testator had died without a Will?
The "whichever is least" rule applies.
The witness-beneficiary takes the lesser of:
1) The bequest in the Will; or
2) Their intestate share.
Is the interested witness rule triggered where an attesting witness is named executor of the estate in the Will?
No. Even though the executor will be paid by the estate, only beneficial gifts trigger the interested witness rule. Compensation that is eaned as an executor does not trigger the interested witness rule.
What is the Foreign Wills Act? What law governs after a foreign will is admitted for probate in NY?
A Will is admissible to probate in NY if it was validly executed under: 1) Law of the state where it was Executed, regardless of Testator's domicile at that time; OR 2) NY Law; or 3) Law of the state where Testator was Domiciled, either when the Will was executed or at Testator's death. END -- Executed, New York Law, or Domiciled. Note: Once the will is admitted to probate, NY law governs construction and application of its provisions.
What is a holographic will? What is a nuncapative Will? Are they valid in NY?
Holographic: a will written entirely in the testator's handwriting that is signed but NOT witnessed. A Nuncapative Will is an oral will. Holographic Wills and nuncupative Wills are not valid in NY. EXCEPT FOR: 1) Armed services during declared or undeclared war (expires one year after discharge); and 2) Mariners at sea (expires after 3 years).
Is there a general requirement that a Will be typed?
No, a Will in one's own handwriting is fine so long as it is signed by two witnesses and met the 6-point test.
Where attorney fails to counsel correctly on how to validly execute a will and it is later denied probate, do the intended beneficiaries of the Will have a cause of action agaisnt the attorney for negligence?
NO. There is no privity of K between the lawyer and the beneficiaries. The lawyer's duty runs only to the client who contracted for her services. The estate could bring a claim for the cost of drafting the will.
What constitutes a valid revocation of a will?
A will can be revoked only in one of two ways:
1) By a subsequent testamentary instrument, executed with the 6-point Will formalities; or
2) By a physical act (burning, tearing, cutting, cancelling, obliteration, or another act of mutilation).

Note: Crossing out the signature is valid revocation.
What is the result where there are two successive Wills but the later does not contain language of revocation of the earlier Will?
1) To the extent possible, you read the two instruments together and the second Will is treated as a codicile to the first Will and revokes the first Will only to the extent there are inconsistent provisions.
2) BUT IF second Will is wholly inconsistent with the first (e.g., first Will leaves all my property to A; and second will leaves all my property to B) the first Will is revoked by implication.
How can revocation by physical act by another person (revocation by proxy) be valid?
Must be:
1) At the testator's request;
2) Done in the testator's presence;
3) Need at least two witnesses.
What presumptions exist with respect to revocation of wills when the will was last seen in the Testator's possession and: 1) Is NOT found after death? 2) Is found mutilated after death?
Where a will was last seen in the Testator's possession or control and: 1) Is NOT found after death, there is a presumption that the testator revoked the will by phyiscal act; 2) Is found mutilated after death (e.g., torn in two), the presumption is that the testator did the mutilating, meaning it is revoked by physical act.
What are the presumptions if the Will cannot be found or is found mutilated AND it was last seen in the possession of someone adversely affected by its contents?
It is assumed that the will is still valid.
Can presumptions of revocation of a WIll be rebutted?
Evidence is admissible to reput the presumption of revocation where Will cannot be found or is found in damaged condition.
How can a testator make changes to his will in NY?
Only by: 1) Writing a NEW WILL; or 2) Adding a CODICIL Both have to satisfy the 6-part test.
What is the effect of words added to a Will after it is signed and witnessed?
Words added to a Will after it is signed and witnessed are unattested words and disregarded.
What is the rule with respect to partial revocation by physical act?
Partial Revocation by physical act is not recognized in NY. This is a minority rule.
What if interlineations and cross-outs are made by the testator immediately before he signed the Will and the witnesses signed as attesting witnesses?
Then the markings will be valid - they'll be part of the duly executed will. Interlineations are scratch marks.
How can a revoked Will be revived?
A Will that has been revoked by a later Will containing a recovation clause CANNOT be revived simply by destroying the later Will. (This also applies to codicils). It can only be revived in one of two ways:
1) If it was RE-EXECUTED -- signed again by the testator and two witnesses; or
2) The doctrine of "republication by codicil" applies (e.g., testator adds a duly executed codicil to the first Will that makes various changes).

Both must be validly executed under the 6-Point test.
What is the Dependent Relative Revocation (DRR) doctrine?
This common law doctrine permits a revocation to be disregarded when premised upon, conditioned upon, or dependent upon a mistake of law as to the validity of another disposition. (Thought revoking WIll #2 would revive Will #1) Application of the DRR disregards the revocation of Will #2 based on mistake of law and admits it into probate. The DRR is known as the 2nd Best Solution and should NEVER be applied UNLESS disposition that results from disregarding the revocation comes closer to doing what the testator tried (but failed) to do than an intestate distribution.
What is required under the Proof of Lost Wills statute?
1) Due execution must be proved as in any case (6 pts);
2) Must be established that the Will was not revoked (The "lost Will" proponent must overcome the presumption of revocation that arises from the Will's nonproduction; or that the revocation should be disregarded b/c of DRR);
3) "All provisions of the Will must be clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the Will proved to be true and complete."
What happens when a Will beneficiary dies during the testator's lifetime?
The gift lapses (fails) UNLESS the gift is saved by the ANTI-LAPSE Statute.
What does NY's ANTI-LAPSE statute provide?
NY's Anti-Lapse statute provides that the gift does not lapse (fail) but vests in the deceased beneficiary's issue who survive the testator if 2 conditions are satisfied:
1) The pre-deceased beneficiary was Testator's issue or brother/sister; AND
2) The Pre-deceased beneficiary leaves issue who survive the testator. Note: Anti-Lapse does apply to disclaiming beneficiaries.
What if the testator's will devises property "to my brother, if he survives me," and the brother predeceases the testator?
The anti-lapse statute will not save this gift because there was a condition that was not met and so the gift "fails according to its terms." The words "if he survives me," trumps anti-lapse.
T's son was adopted by a non-relative. T still named the son specifically as a beneficiary in his will. The son, who had living children, predeceased T. What did the Court Rule?
The NY Court of Appeals ruled that even thought he son was adopted out, because he was named specifically in the will by the T, the adopted out son's issue would take the bequest under the anti-lapse statute.
What is the rule for lapse in residuary gift in NY?
The "surviving residuary beneficiaries rule": In NY, if testator's residuary estate is:
1. Devised to two or more persons, AND
2. The gift to one of them fails or lapses for any reason, AND
3. The anti-lapse statute does not apply; the other residuary beneficiaries take the entire residuary estate, in proportion to their interest in the residue, absent contrary provision in the Will.
As between the anti-lapse statute and the surviving residuary beneficiaries rule, which wins?
The anti-lapse statute, where it applies, trumps/overrides the "surviving residuary beneficiaries" rule.
What is the class gift rule?
(A rule of construction based on presumed intent). If a Will makes a gift to a group of persons generically described as a class ("children, "brothers and sisters," etc.) and some class members predecease the testator, the class members who survive the testator take (absent contary provision).
What is the result where the beneficiaries are not named as a class, but rather individually?
Then, if one member of the group predeeases the testator, his share will fall into the residuary estate and the residuary heirs will get it. BUT, this is subject to possible application of the anti-lapse statute.
What is the relationship between the Class Gift Rule and the Anti-Lapse statute?
The class gift rule gives way to the anti-lapse statute when the predeceasing class member is within the scope of the anti-lapse statute. Anti-Lapse Statute trumps Class Gift Rule.
What is the Rule of Convenience?
A rule of construction whichc closes the class, excluding new members, when the Testator dies and a distribution to the class must be made. Closing the class eliminates the need for rebates or refunds later on. It is subject to the gestation principle. CL Presumption: 280 days from conception to birth.
When does a class close where there is an outright gift by Will?
The class closes at testator's death, subject to the gestation principle, the common law presumption that we include people who were in gestation at time of T's death (280 days from conception to birth).
Where there is a life estate and the class gift is to the remainderman, when does the class close?
The class closes at the life tenant's death, not at the testator's death.
What if two persons die at the same time?
Under the Uniform Simultaneous Death Act (USDA), if two persons die under circumstances such that there is insufficient evidence that they have died otherwise than simultaneously, the property of each is distributed as though he or she survived.

Note: If one person survives even for 1 minute longer than the other than the deaths are NOT simultaneous.
What is the effect of the USDA on jointly held property or other rights of survivorship?
The USDA prevents operation of the right of survivorship in cases of jointly held properly. So, in effect, the property passes as though a tenancy in common was involved. USDA obliterates the right of survvorship in simultaneous deaths.
What is the effect of Testator marrying after his or her will is executed?
In NY, marriage following execution of Will has no effect on the Will because the elective share statute protects all surviving spouses.
What is the effect of Testator divorcing after his or her will is executed? Any exceptions?
If testator is divorced or an annulment occurs after execution of the Will, all GIFTS and fiduciary appointments in favor of the former spouse are revoked by operation of law. You read the Will as though former spouse predeceased the testator. BUT, a bequest to a son or daughter of the former spouse is not revoked by the divorce. Statute applies only if there is a Final decree of divorce or annulment at the time of the testator's death. (Not separation decree or unfinalized divorce).
What are the exceptions to the revocation of gifts and fiduciary appointments of the former spouse after divorce?
1) Appointment of former spouse as guardian of the couple's child is not affected;
2) If the couple reconciles and remarries, all provisions in favor of the former spouse are restored.
What is the rule for the spouse taking by intestacy or taking an elective share?
Here, a separation decree is sufficient to kick prevent them from taking, but with a gift by will, we require a final divorce decree or annulment.
Does the "divorce revokes" rule apply to life insurance policies?
No. The divorce revokes rule applies only to wills, not other forms of non-probate transfers.
What is the name for a child borrn after the Will is executed?
A pretermitted child is a child born or adopted after will is executed.
When does the NY pretermitted child statute apply?
The NY pretermitted child statutes give no protection to children who are alive when the Will was executed.
The statute applies ONLY:
1) To after-born and after adopted children;
2) Who are unprovided for by any other settlement; or
3) Who are not mentioned in the Will.

Purpose: Avoid omitting afterborn child from sharing distributiton with siblings.
What is the result if testator had one or more children when the Will was executed?
1) If no provision is made for any such child, an afterborn child gets nothings;
2) If the Will made gifts to testator's other children, the afterborn child shares in the gifts to the other children as if a class gift were made;
3) If it appears that the intention of the testator was to make a limited provision only to the testator's children living at the time the Will was executed, then the afterborn child takes an intestate share (If testator had disinherited the kids already alive, we don't inflict that on the after-born).
What is the result if testator had no other children when Will was executed?
Then the afterborn child takes an intestate share.
If afterborn or after adopted child gets a share, where does it come from?
You treat it like a class gift. The share will come out of the testamentary gifts to testator's other children (in proportion to their gifts). No other beneficiary has to give up anything.
What if the already living children were given nothing by the Will?
Then the after born takes nothing UNLESS the Will made a "limited provision" for testator's existing children (e.g., I give $5 to my children, Michael and David"), in which case, the afterborn child takes an amount equal to his intestate share. (After borns do not lose)
What is the NY rule with respect to Incorporation by Reference?
NY does NOT recognize the Incorporation by Reference Rule. All documents have to conform to the 6-part formalities test. At CL and in nearly every state, the terms of an extrinsic instrument, not part of the Will itself can be read into the Will ("incorporated by reference") if: 1) the document was in existence ewhen the Will was signed; 2) the Will shows an intent to incorporate the document's terms; and 3) the extrinsic document is clearly identified by language in the Will.
What is the "acts of independent significance" doctrine?
Also called the "Nontestamentary acts" doctrine. Sometimes people do lifetime acts that have their own purpose or motive independent of any testamentary purpose. These acts that occur AFTER a will is executed should be given full effect in the distributions made (even though they don't comply with the 6-part formalities test). E.g. move Picasso into living room.
What cannot be transferred by the Doctrine of Independent Significance?
Title documents are held to a higher standard and cannot be transferred by the doctrine of independent significance. (Deeds, stock certificates, and bank passbooks).
What are non-probate assets?
Interests in property that are not subject to disposition by Will or inheritance, and are not part of the probate estate for purposes of administration.
What are the major types of nonprobate assets?
1) Property passing by right of survivorship (joint bank account, etc.);
2) Property passing by K: Life insurance, EE death benefits paid to a Beneficiary other than insured's executor or estate;
3) Property held in trust, including revocable trusts (Trust terms govern distribution of assets);
4) Property over which the decedent held a power of appointment.
Where a Will directs that the proceeds of a life insurance policy be given to X, but the beneficiary under the policy is Y, which controls?
The life insurance K. Can't change beneficiaries by Will.
What types of gifts can be made by will (testamentary gifts)?
1) Specific gift;
2) Demonstrative legacy;
3) General legacy;
4) Residuary disposition;
5) Intestate property
What is a specific gift?
Only that asset can satisfy the gift. E.g., "I devise Blueacre to X"
What is demonstrative legacy?
A general amount from a specific source. E.g., "I bequeath $5000 to be paid from the proceeds of sale of IBM stock, to X"
What is a general legacy?
Gift of a general dollar amount. E.g., "I give the sum of $5000 to X"
What is intestate property?
If a partial intestacy results because the Will was poorly drafted and has no residuary clause.
What happens when there are so many claims against the estate that there aren't enough assets to cover all the gifts made by the Will?
The gifts under a Will will abate, i.e., they are not given effect so that creditors' claims can be satisfied.
***Absent provisions in the Will, what is the order of "abatement" of testator's property to pay debts and claims?
Start at the bottom and work your way up.
1) Debts and expenses are first paid out of any intestate property, if there is any;
2) If there are still debts, go in reverse order: residuary estate, general legacies, demonstrative legacies, and specific gifts. Within each class of gift, no distinction is made b/t real and personal property;
3) Dispositions that qualify for the estate tax marital deduction ALWAYS abate last.
What is the NY rule with respect to specific gifts of encumbered property?
By statute in NY, liens on specifically devised property are NOT exonerated unless the Will directs exoneration (general provision for payments of debt is NOT good enough). At CL, the beneficiary was entitled to have the lien "exonerated" (i.e., paid from the residuary estate).
What if a Will makes a specific gift of property and the property cannot be found or is not owned by the testator at death, what then?
The gift fails under the DOCTRINE OF ADEMPTION, without regard to the testator's intent.
To what does ADEMPTION apply? NOT apply?
Ademption ONLY applies to specific devises and bequests. NOT to GENERAL or DEMONSTRATIVE legacies. Assets will have to be sold to satisfy a general disposition if there is not enough cash, or to satisfy a demonstrative disposition if the designated account is empty.
Where a testator bequeathed Blackacre to X and the residuary estate to Y, and before he dies, testator sells Blackacre for cash and a note, what does X get on testator's death?
Nothing. It was a specific gift of Blackacre and so ademption applies - testator did not own Blackacre at time of death, so he can't bequeath it. X does not get the cash and note because that's not what the Will said - the cash and note go to the residuary estate - to Y.
**What are the three statutory exceptions to the ademption doctrine?
1) Casualty insurance proceeds for lost/damaged/destroyed property - Beneficiary takes insurance proceeds to the extent paid AFTER death;
2) Executory contract - Beneficiary gets sale proceeds AFTER death;
3) Sale by guardian or conservator of specifically bequeathed property - beneficiary is entitled to receive the $ or property into which the proceeds from the sale or transfer can be traced and have not been spent. If proceeds cannot be traced, then ademption applies.
What type of gift is a gift of shares of stock in a closely held corporation?
A gift of shares of stock in a closely held corporation is presumptively a SPECIFIC LEGACY/BEQUEST, so ademption applies.
What type of gift is a gift of stock in a publicly traded company?
A gift of stock in a publicly traded company is classified as a general legacy for ademption purposes unless the testator says I give "MY___ stock", which evidences an intention to make a SPECIFIC LEGACY/BEQUEST.
What is the result where the source specified for a demonstrative legacy ($5,000 paid from sale of IBM stock) is no longer owned by the testator at time of death?
Ademption does NOT apply to demonstrative legacies, so the beneficiary still gets the gift. It can't come out of the proceeds specified because Testator didn't own them at death. So, other assets have to be sold to satisfy the demonstrative legacy.
What is the result where testator bequeaths 100 shares of IBM to X, but does not own 100 shares of IBM at time of death?
Because it doesn't say "my shares of IBM," it's treated as a GENERAL LEGACY/BEQUEST and thus ademption does not apply. The beneficiary gets the date of death value of 100 shares of IBM stock.
What is the result where testator bequeaths "my 100 shares of AT&T," but does not own 100 shares of AT&T at time of death?
SPECIFIC LEGACY/BEQUEST which doesn't exist at the Testator's death so the Beneficiary gets NOTHING.
What is the result where testator bequeaths "100 shares of Exxon stock" but does not own 100 shares of Exxon at time of death?
General LEGACY/BEQUEST so Ademption does NOT apply and the Beneficiary gets the value (at the date of death) of 100 shares of stock.
What is the result where the issue is stock split?
When the issue is stock split, the bequest of stock is treated as a SPECIFIC LEGACY/BEQUEST regardless of whether or not a possessive pronoun ("my") was used, and whether publicly traded or closely held stock is involved. A specific bequest includes stock splits, but NOT stock dividends.
Where testator bequeaths "100 shares of IBM to X" and IBM splits two for one, what does X get on testator's death?
X gets the additional shares produced by the stock split even though this would have been classified as a general legacy for ademption purposes. A bequest of securities can be construed as general for one purpose - avoiding ademption - and specific for another - the stock split.
What if there is a stock split in a closely held corporation?
The stock split is treated as a specific bequest regardless of the possessive pronoun "my".
What is the result where testator bequeaths stock that he owns, but later, before he dies, the company in which he owns stock is taken over and the stockholders receive the stock of the larger corporation in exchange for their small corporation shares?
Ademption does NOT apply because this is only a change in form, not substance. The new stock is directly traceable to the old stock that testator owned before the merger. So, the beneficiary of the old stock will take the new stock.
What is the rule where there is a clerical error that goes unnoticed when Will is being drafted?
The plain meaning rule says that if there is no ambiguity in language, extrinsic evidence is NOT admissible to overturn the plain meaning of the will. Absent suspicious circumstances, it is conclusively presumed that testator read the Will and intended its contents.
When is there a LATENT ambiguity?
When there is a misdescription or error that is not evident by looking at the will. (e.g. John Paul Jones as a Beneficiay instead of John Peter Jones)
What rule applies when there is a LATENT ambiguity?
Extrinsic evidence (including facts and circumstances) is admissible to find the meaning of the testator's words. Here, we're not trying to overturn the plain meaning, we're trying to clarify the meaning of the Testator's words.
What is "facts and circumstances" evidence?
Evidence about the testator, his family, the claimants under the Will and their relationship to the testator, testator's habits and thoughts, etc.
Does the admissible evidence include testator's declaration of intent to 3rd parties? Statements to his attorney?
Yes to both.
What if the extrinsic evidence doesn't cure the ambiguity?
The gift will fail because there will be no ascertainable beneficiary.
What is a PATENT ambiguity?
A mistake that appears on the face of the Will. A careful proofreading would have caught a patent ambiguity. E.g., I give the sum of twenty-five dollars ($25,000) to)
Where there is a patent ambiguity, is extrinsic evidence admissible?
What kinds of evidence is admissible?
1) Facts and circumstances evidence;
2) Testator's statements to his attorney;
3) BUT NOT testator's declarations of intent to a third person. This is the difference b/t latent & patent ambiguities.
What is the rule regarding conditional wills? "If anything happens to me on X trip, I leave..."?
The question is whether this is a Conditional Will, meaning argue both (Courts split): 1) Probate would be denied b/c the condition did not occur (testator did not die on the trip), or 2) The reference merely reflected the motive or inducement for making a Will, in which case it would be OK.
What is the current NY rule with respect to contracts relating to Wills?
Under the EPTL, a contract to make a Will or not to make a Will can be established only by an express statement in the Will that its provisions are intended to constitute a contract b/t the parties. (e.g., a Joint will)
What is the result if a Will is contractual and the survivor breaches the contract by writing a new Will with inconsistent provisions?
Step 1 - Apply the probate code;
Step 2 - Apply contract law and say that this new will breached the K. Impose the constructive trust for the remedy to the breach of K.
May a contractual Will be revoked?
Yes, by agreement of the parties.
What is the NY rule when a Will results in partial intestacy and includes words of disinheritance?
NY has a "Negative bequest" statue, which provides that words of disinheritance in a Will are given full effect. A Will may provide how property may NOT be disposed of.
Where, under the negative bequest statute in NY, a disinherited party does not take under intestacy rules, although he otherwise would have, how is his share treated?
The estate is distributed as though he predeceased the testator. Thus, if the anti-lapse statute applies, his share can go to his issue.
Hill’s Will devises Blueacre to her daughter Greenwich and her residuary estate to her husband Billy. The Will provides: I intentionally make no provision for my son Greg, as he married out of the faith and has been a great disappointment to me.” Hill divorces Billy in 1996 and dies in 1997 without having changed her Will. She is survived by Greenwich and Greg as her nearest kin. Who takes residuary?
The “divorce revokes” rule revokes the gift to Billy. He gets nothing. So partial intestacy since no altenative gift in the will. Residual estate falls out of the will and passes by intestate. At CL: Greg would take ½ of the residuary even though Hill’s Will attempted to disinherit him.

NY Statute: Greg gets nothing. We distribute the estate as though Greg had pre-deceased Hill. Greenwich takes it all. (But if Greg had children, they would take that ½ interest through anti-lapse as distributees; only Greg was disinherited.)
What is the purpose of the elective share statute?
To protect surviving spouse against disinheritance, by giving spouse entitlement to minimum share of decedent's estate. (Can't screw your spouse in death.)
What is the amount of the elective share?
The amount of the elective share is the greater of $50,000 or 1/3 of the net estate, plus interest at 6% beginning 7 months after issuance of letters Testamentary to the executor (or letters of Administration to the administrator appointed by the court).
To what portion of the estate does elective share apply?
Elective share applies to net estate after payment of debts and expenses, but before payment of estate taxes.
To whom is the right of election NOT available?
Under the EPTL, the right of election is NOT available to the spouse of a decedent who was not domiciled in NY at the time of his or her death.
When is the Right of Election available to the spouse of a decedent who was not domiciled in NY at the time of the T's death?
If the decedent had real property in NY, AND expressly stated in his Will that the disposition of his real property in NY is to be governed by NY law, then the property will be subjet to the elective share.
Where a NY domiciliary owns real property in another state, and the surviving spouse files a notice of election to take an elective share of 1/3 of the net estate, does the net estate against which the NY elective share applies include the value of the real estate in the other state?
Yes. Even though NY court cannot adjudicate ownership of real property in another state, it still takes account of the value of that real estate in calculating the elective share.
A person intent on draining their estate could disinherit his spouse by making non-probate transfers and defeat the protection of elective share. What prevents this from happening?
Testamentary substitutes: almost all of these non-probate transfers are considered these and become part of the augmented estate for elective share purposes. (Exception are listed on another card)
What is the augmented estate?
Because the probate estate is augmented by the testamentary substitutes, the amount subject to the elective share is called the augmented estate.
What transfers are considered testamentary substitutes?
T - Totten trust ("A, Trustee for B") bank accounts);
S - Survivorship estates;
L - Lifetime transfers with strings attached;
E - Employee pensions, profit-sharing, deferred compensation plan IF EE designated the beneficiary on or after September 1, 1992 (and then only 1/2 of qualified plan is a testamentary substitute);
G - Gifts in excess of the $12,000 gift tax annual exclusions made within one year and gifts causa mortis even within the $21,000 exclusion;
U - US government bonds and Pay on Death arrangements;
P - powers of appointment
What things count as survivorship estates?
1) Joint tenancies;
2) Tenancies by the entirety;
3) Joint and survivor bank accounts but ONLY if created on or after Sept. 1, 1966.
What types of lifetime transfers are considered to have strings attached?
Transfers with a retained power to revoke, invade, consume or dispose of principal or name new beneficiaries AND irrevocable transfers with retained life estate made on or after September 1, 1992
What are powers of appointment?
Property over which decedent held a presently exercisable general power of appointment (but not property over which he held a general testamentary power).
What types of lifetime transfers are NOT considered testamentary substitutes?
L - Life insurance proceeds (whether payable to surviving spouse or third party);
O - half Of a qualifed pension and profit-sharing benefits (but note that these are not testimentary substitutes at all if the EE named a beneficiary before Sept. 1, 1992 and did not change the beneficiary designation thereafter).;
G - Gifts within $12,000 annual exclusion made within one year of death;
P - Pre-marriage irrevocable transfers;
I - Irrevocable transfers made more than one year before death - transfers in which grantor did not retain power to revoke, invade, consume or dispose of principal;
T - Transfers with retained life estate made before Sept. 1, 1992.
What amount of any survivorship estate is a testamentary substitute?
1) For a survivorship estates with dead spouse and 3rd party during marriage (joint ten, jt and survivor bank account), the "Consideration Furnished Test" applies.
2) For a survivorship estate with a surviving spouse (jt ten., Ten. by the E, jt bank account), the consideration furnished test does NOT apply; 1/2 is a testamentary substitute, regardless of which spouse furnished the consideration for the property's acquisition.
What is the consideration furnished test?
The surviving spouse has the burden of proof as to amount of hte decedent's contribution to the property's acquisition (or amount of decedent's deposits in joint bank account).
If a spouse enters into a joint tenancy before marriage, then how much of the property is a testamentary substitute?
Only 1/2 the property's value is a testamentary substitute. When the spouse took title before marriage, she made an irrevocable gift of 1/2 the property interest. Under NY Law, the same holds true for a deposit in a joint bank account, property, etc. is irrevocable as to 1/2 of the amount deposited.
How do you calculate the net elective share to which a surviving spouse is entitled?
Net probate estate + Testamentary substitutes = Elective Share Estate

Divide Elective Share Estate by 3 and subtract Amount passing to spouse under will or her 1/2 of the T subs =

Net Elective Share
Why does the elective share also apply to testamentary substitutes?
If the elective share applied only to the provate estate (i.e., property owned at death and passing by Will or intestacy), a person intent on disinheriting his or her spouse could make non-probate transcers (revocable trusts, joint bank accounts, etc.) in favor of others, and thereby defeat the policy and protection of the elective share statute.
What was the old rule with respect to elective share trusts and the right of election?
For estates of decedents dying beforee September 1, 1994, the right to an elective share could be wholly eliminated through the use of an elective share trust that gave the surviving sposue a life estate (an income interest for life), as long as at least $50,000 was given outright to the spouse. If the sum of: 1) outright dispositions of at least $50,000, plus 2) the corpus of the trust, equalled or exceeded the one-third elective share amount, the surviving spouse could not elect against the Will.
What is the current rule with respect to elective share trusts and the right of election?
Life estates ("terminable interests") no longer satisfy the elective share entitlement.
What happens to a surviving spouse's trust income interest if she files for an elective share?
Administer the trust as though the surviving spouse had predeceased the testator, meaning as though there was no life estate in the surviving spouse. The remainder is accelerated, and the remainderman takes the remainder.
How is the elective share made up if there is not enough money in the estate after dispositions?
In making up the net elective share, all other beneficiaries contribute pro rata.
What are the rules governing election? When? Right? Waiver?
Must be filed within 6 months after Letters (Testamentary or of Administration) are issued by Surrogate Court at the start of probate proceedings, but even if there is no estate administration, in no event more than 2 years after decedent's death.

Right of election is personal to the spouse not her heirs.

Can be waived without consideration (signed, acknowledge, before a notary)
Can the executor of administration of a deceased spouse elect?
No. The right of election is personal to the surviving spouse. The purpose of the elective share is to protect the surviving spouse and not her heirs.
When is a spouse disqualified from taking an elective share?
D - Divorce (final decree of divorce or annulment valid under NY law;
I - Invalid divorce procured by a surviving spouse, outside of NY, divorce or annulment not recognized as valid under NY law (doesn't bar the surviving spouse if deceased spouse procured the invalid divorce or annulment);
S - Separation decree rendered against the surviving spouse (doesn't bar spouse if the efinal decree of separation was rendered agaisnt the deceased spouse);
M - Marriage is void (as incestuous or bigamous);
AL - Abandonment and Lack of support - surviving spouse abandoned or refused to support deceased spouse.
What items are included in the exempt personal property set aside?
These items come off the top over and above property passing to the spouse by WIll, intestate share, or elective share.
1) Car (up to $15,000 in value);
2) Furniture, appliances, computers, etc. (up to $10,000 in value);
3) $15,000 cash allowance;
4) Animals, farm machinery, tractor (up to $15,000);
5) Books, pictures, videotapes, softeware, stc. (up to $1000).
What are the requirements for testator to have had capacity?
Did testator have sufficient capacity to:
1) Understand the significance of what he was doing (i.e., he was writing a Will);
2) Know the nature and approximate value of his property;
3) Know the objects of his bounty; AND
4) Understand the disposition he was making. *This is a very low threshold - lower than other legal capacity thresholds.
If a person is adjudicated incompetent and a guardian was appointed to manage her affairs, and on that basis, a Surrogate enterd a directed verdict that the testator lacked capacity to make a Will, is this proper?
No. This will be reversed and remanded.
1) Adjudication of incapacity involves a different legal test (capacity to K, to manage one's affiairs) than capacity to make a Will;
2) Jury could find that testator signed the will during a "lucid interval."
What is an insane delusion?
Where T is of sound mind on other subjects, but has a persistent belief in supposed facts which have no real existence exept in T's perverted imagination, and are agaisnt all evidence and probability, and which control and produce the exercise of hte testamentary act (e.g., paranoia).
What is undue influence?
Existence of a testamentary capacity subjected to and controlled by a dominant influence of power.
What must contestant show to prove undue influence?
Burden of proof is on the contestant to prove: 1) Existence and exertion of an influence; 2) Effect of such influence was to overpower the mind of the testator; 3) It produceed a testamentary act that would not have been executed but for the influence.
What situations are NOT enough to demonstrate undue influence?
1) Mere opportunity to exert influence;
2) Mere susceptibility to influence due to illness, age;
3) Unfair disposition.
What is the rule where a Will makes a gift to one in a confidential relationship?
Where a Will makes a gift to:
1) one in a confidential relationship (e.g., attorney/client or adult child with power of attorney) and
2) that person was active in perparing the Will, there is an inference of undue influence which, if not rebutted, satisfies the contestant's burden of proof.
What is the rule where a Will makes a bequest to the drafting attorney?
If the Will makes a bequest to the drafting attorney, the Surrogate makes a PUTNAM SCRUTINY even if no objectoin is filed (i.e., an automatic inquiry) to detemine whether the gift was voluntarily made.
What is the rule where a Will names the drafting attorney executor?
EPTL: He must give written disclosure to the client:
1) That any person, not just attorney, can be named executor;
2) That executor receives statutory commission; and
3) That the attorney will also be entitled to legal fees for representing the estate. The client must sign the acknowledgement of the disclosure in the presence of at least one witness other than the attorney/executor.
What is the effect of failure to comply with the statute?
The lawyer's commission as executor will be reduced by 50%.
What is the common law rule with respect to no-contest or In terrorem clauses?
At common law, and in a majority of states, no contest clauses are given full effect unless court finds that contest was brought in good faith and with probable cause (it wasn't a frivilous suit designed to extract a settlement).
What is the rule in NY with respect to no-contest clauses?
No contest clauses are given full effect even if there was good cause to challenge the Will.
What are the exceptions to the NY rule that no-contest clauses are fully enforceable?
1) Forgery or revocation by a subsequent will if the Surrogate finds probable cause for contest (Note: Only revocation by subsequent will, not physical act);
2) If the Will contest is filed on behalf of a minor or incapacitated beneficiary;
3) Construction proceeding to construe the will;
4) Objections to jurisdiction of the court.
What is a power of appointment?
PoA is an authority created in or reserved by a person enabling her to designate, within limits prescribed by the creator, the persons who shall take the property and the manner in which they take it.
What is the purpose of a power of appointment?
Allows the donee to look at facts in existence at a later date when distributing the property.
Who is the donor?
The creator of the Power of Appointment.
Who is the donee?
Person given the power of appointment.
What are the people who will take the property subject to the power if the donee fails to exercise the power of appointment called?
The takers in default.
What types of power of appointment are there?
1) General power of appointment;
2) Special power of appointment;
3) Presently exercisable power of appointment;
4) Testamentary power of appointment.
What is a general power of appointment?
Donee can appoint to herself, her creditors, or to her estate as if she owned it herself.
What is a special power of appointment?
Donee cannot appoint to herself, her estate, or her creditors. Normally there is a limited class to where the donee can appoint (i.e. to the issue of my brother)
What is a presently exercisable power of appointment?
Donee can appoint during donee's lifetime (don't have to wait for a will).
What is a testamentary power of apointment?
Donee can only appoint by will after donor's death.
What is the purpose of a power of appointment?
Permits the income beneficiary to designate the remaindermen.
Who is the donor?
The creator of the trust or life estate.
Who is the donee?
The recipient.
What are the people who will take if the donee does not exercise the power of appointment called?
The takers in default.
Is a residual clause enough to exercies the testamentary power of appointment?
Yes, by statute in NY.
Is a residual clause enough to exercies the testamentary power of appointment? (e.g. "all the rest, residue and remainder of my estate to . ." where estate includes what the donor asked the donee to have power over) What is the rule in NY?
In NY, a Will exercises all powers of appointment held by the testator (both special powers and general powers) unless the instrument creating the power called for its exercise by a specific reference to the power.
Where the instrument requires a speific reference to the power in order to appoint, will a residuary clause suffice?
No. In that case, the takers in default of appointment take.
Is a presently exercisable power of appointment exercisable by will?
Yes. A presently exercisable power of appointment is ALSO exercisable by will UNLESS exercise by will is expressly prohibited.
What types of powers of appointment are testamentary substitutes for elective share purposes?
General presently exercisable powers of appointment only because donee can appoint to herself, her estate, her spouse, etc.
What types of powers of appointment are NOT testamentary substitutes for elective share purposes?
1) General testamentary power of appointment (cannot access during her lifetime only in her will);
2) Special power of appointment (can't get at it during her lifetime)
Can creditors reach a presently exercisable general power of appointment?
Yes, because the donee can appoint to himself he is treated as the owner for creditor purposes.