Ny List Of Trust Vocab

Front 1

NY list of Will Terms

Back 1

MY BAR EXAM 2013

Front 2

EXPANDED FROM A 2011 SET OF FLASSH CARDS

Back 2

Flashcards for preparation for NY bar exam 2011

Front 3

SUMMER WILLS

Back 3

2011 bar exam ny summer wills

Front 4

Front (Term)

Back 4

Back (Definition)

Front 5

Proof of Lost Will

Back 5

A lost or destroyed will may be admitted to probate only if the following requirements are met:

(1) proof that the will had not been revoked
(2) proof of due execution
(3) proof of all will provisions (by at least two credible witnesses OR by a copy or draft of the will that is true and complete)

Front 6

Incorporation by Reference in NY

Back 6

Generally, NY does not recognize the doctrine of incorporation by reference. However, the court may allow incorporation of unattested documents considering the following factors:

(1) absence of the possibility of alteration, fraud, or mistake
(2) observance of some formalities in the execution of the incorporated document

Examples of exceptions:

(1) gifts by will to a lifetime trust that was executed before or contemporaneously with the will
(2) lists of specific bequests of personal property
(3) references to gifts made by another's will
(4) pourover trusts - must have been validly executed prior to or contemporaneously with the will, and the trust must be specifically identified in the will

If such unattested documents are not incorporated, they still may be independently significant in ascertaining the intended beneficiaries.

Front 7

Exempt Household Property

Back 7

Certain household property does not become part of the probate estate. It immediately passes to the spouse not disqualified to take from the estate in addition to her right to take an elective share or, if no spouse, to children under the age of 21 at the time of the decedent's death. The right to exempt property overrides any testamentary disposition to third parties, and exempt property is generally not reachable by creditors (however, if the assets of the estate are insufficient to pay the decedent's funeral expenses, the executor or administrator must apply otherwise exempt money or personal property to pay such expenses). It includes:

(1) household furniture, appliance, utensils, sewing machines, computers, musical instruments, electronic devices used in or about the house, clothing of decedent not exceeding $10,000 in aggregate
(2) family Bible, pictures, video tapes, school books, computer equipment and software, books in the family library not exceeding an aggregate value of $1,000
(3) one tractor, farm machinery, and domestic animals and their food, not exceeding an aggregate value of $15,000
(4) one motor vehicle, not exceeding $15,000 (if a decedent died in an accident that demolished his automobile, the proceeds of the collision insurance policy can be substituted as exempt property)
(5) money or other personal property, not exceeding $15,000.

Front 8

Testamentary Substitutes

Back 8

The following testamentary substitutes are included in the net estate for the purposes of calculating the surviving spouse's elective share:

(1) gifts causa mortis
(2) irrevocable gifts made within one year of death that are greater than $13,000
(3) totten trusts
(4) property jointly held with the right of survivorship in a person other than the decedent to the extent of the decedent's contribution (including joint bank accounts)
(5) property held by decedent in a revocable trust for another
(6) any interest in property to the extent that the passing of the principal for the benefit of any person was subject to a presently exercisable general power of appointment, held by the decedent immediately before his death, or which the decedent released within one year of his death or exercised in favor of another person
(7) pensions, profit-sharing plans, death benefits or similar plans.

Front 9

Abatement

Back 9

If an estate does not sufficiently pay off the claims against the estate and satisfy all devises and bequests, the gifts are reduced (abated) in the following order:

(1) property passing by intestacy
(2) the residuary
(3) general legacies
(4) specific devises and bequests

Front 10

Intestate Distribution

Back 10

(1) surviving spouse, no issue - the spouse takes the entire estate. If a common law marriage, not recognized in NY, is validly contracted in another state, the spouse may file for the elective share

(2) surviving spouse, surviving issue - the spouse takes the first $50,000 + one half of the residuary; the issue takes the remainder per capita at each generation (standard in NY unless otherwise provided)

(3) surviving issue - per capita at each generation

(4) surviving parents

(5) siblings and issue per capita at each generation

(6) grandparents and their issue up to grandchildrent (first cousins) (apparently per capita at each generation)

(7) surviving great-grandchildren of grandparents - one-half of the estate passes to the paternal side and one half to the maternal side per capita at each generation. If there are no takers on one side, that side's half goes to the other side

Front 11

Transplantation Theory

Back 11

An adopted child loses the legal relationship with his natural parents and is treated as the natural-born child of the adoptive parents. Exceptions:

(1) natural parent remarries and the child is adopted by the step-parent - the child is treated as a child of both the natural parents and the adopting parent

(2) child is adopted by a natural family member (i.e., related to the decedent both naturally and by adoption) - may inherit only under the natural relationship (not under both!). Exception: if the child is adopted by a natural parent - inherits through the adoptive relationship only

(3) the equitable adoption doctrine - a child is permitted to enforce an adoption agreement and acquire rights in intestacy that he or she would have had if the decedent had complied with the original adoption agreement

Front 12

Inheritance from Father by a Non-Marital Child

Back 12

(if not legitimized by the marriage of his parents)

(1) if a court had made an order of filiation declaring paternity during the father's lifetime

(2) paternity acknowledged:
i. by a formal declaration
ii. by a deed executed in the presence of at least one witness and acknowledged by the father and such witnesses before a notary public, filed with the Putative Father Registry of the State Department of Social Services

iii. by clear and convincing evidence if the father has openly and notoriously acknowledged the child as his own OR a blood genetic marker test has been administered which establishes paternity by clear and convincing evidence

Front 13

Missing Distributees

Back 13

Presumed dead:

(1) if the distributee has not been heard from for at least 3 years since the decedent's death

(2) a diligent search was made and there is still no evidence of the distributee

Presumed not to exist:

(1) diligent and exhaustive efforts have been made to determine the existence of such distributees

(2) 3 years have lapsed since the decedent's death

(3) the parties know of no distributees other than those on record

(4) no party whose relationship is not established in the record has made a claim to a share of the estate

Front 14

Items That Pass Outside the Probate Estate

Back 14

Examples:

(1) joint tenancies and tenancies by the entirety
(2) life insurance proceeds
(3) U.S. savings bonds

Front 15

Exclusions from the Probate Estate

Back 15

do not survive death. Examples:

(1) income from a trust fund for (the decedent's) life
(2) life estates
(3) annuities

Front 16

Consequences of Conviction of Homicide of the Decedent

Back 16

(1) bars from inheriting by intestacy or by will from the victim. The court will use a constructive trust. Includes all forms and degrees of murder and first and second degree manslaughter. Exceptions:
i. insanity
ii. self-defense

(2) rights of survivorship - if a person intentionally and feloniously kills a co-owner, the killer forfeits the right of survivorship, and the victim's estate receives the entire property

(3) a joint bank account - the killer is not entitled to the distribution of any money, except for the funds contributed exclusively by the killer

(4) insurance proceeds - the killing beneficiary is disqualified from receiving the proceeds if he feloniously and intentionally killed the insured

Front 17

Renunciation

Back 17

Renunciation applies to:
(1) distributions from an estate
(2) powers of appointment
(3) proceeds of life insurance
(4) annuity contracts
(5) employee benefit plans
(6) rights of survivorship
(7) future interests
(8) wrongful death proceeds
(9) intestate distribution
(1) bequests under trust instruments

Requirements:
(1) in writing
(2) signed and acknowledged by the renouncing party before a notary public
(3) accompanied by an affidavit stating that the renouncing party has not received any consideration for the renunciation
(4) with notice to the estate administrator of the renunciation
(5) filed with the Surrogate's Court within 9 months of the effective date of disposition

Effective date of disposition:
(1) if the disposition is by will, intestate distribution, or life insurance - the date of the decedent's death
(2) by a joint tenancy or tenancy by the entirety - the date of the death of the other tenant
(3) by a trust agreement - the date of the agreement
(4) by the exercise of a power of appointment - the date of exercise of the power
(5) in case of a future estate - the date on which it becomes an estate in possession

Front 18

Void Renunciation

Back 18

if the distributee:

(1) accepts the property
(2) takes control of the property
(3) transfers the property to another
(4) mortgages or sells the property

Front 19

Nuncupative and Holographic Wills

Back 19

can only be made by:
(1) a member of the armed forces while in actual military service during a war or another armed conflict OR a civilian serving with or accompanying the armed forces - valid for one year after the testator ceases to serve with or accompany the armed forces
(2) a mariner at sea - valid for 3 years from the time it was made

Front 20

Validation of an Invalid Will by a Codicil

Back 20

A codicil can republish a previously revoked will. A codicil may also validate an invalid will if the invalidity was caused by a defect in the testator (e.g., testamentary incapacity, but not a defect in the formalities!) if:

(1) the defect no longer exist, AND
(2) the codicil references the will with sufficient certainty to identify and incorporates it OR the codicil is on the same paper as the invalid will

Front 21

Foreign Wills

Back 21

are wills created under the laws of a state other than NY

A will disposing of personal property (wherever situated) or of real property situated in NY, made within or outside of NY by a domiciliary or nondomiciliary, is valid and admissible to probate in NY if the will is:

(1) in writing
(2) signed by the testator
(3) executed and attested in accordance with the local law of:
i. NY, OR
ii. the jurisdiction in which the will was executed, OR
iii.the jurisdiction in which the testator was domiciled, either at the time of execution or the time of his death

Front 22

Elective Share

Back 22

The decedent spouse must have been domiciled in NY at the time of death, unless:
(1) his will specifically states that NY law is to be applied to the disposition of any property owned by him in NY, OR
(2) property located ouside NY is included in the calculation of the spouse's elective share

A spouse cannot take the elective share if:
(1) there is a valid separation decree, OR
(2) the surviving spouse has waived the right to an elective share through a written, signed and acknowledged separation agreement

Procedure:
(1) calculate the net estate - the gross value of the decedent's estate including testamentary substitutes, less debts, administration expenses, and reasonable funeral expenses. Estate taxes are not deducted!

(2) elective share is the greater of:
i. $50,000, OR
ii. one-third of the net estate

(3) the surviving spouse receive the elective share reduced by the capital value of any interest that passes absolutely from the decedent to the surviving spouse by:
i. disposition under the decedent's will
ii. testamentary substitute to the surviving spouse

Front 23

Illegitimate Afterborn Children

Back 23

are entitled to take under the Pretermitted Heir Statute if:

(1) an order of filiation has been obtained
(2) the father has filed an acknowledgement of paternity
(3) paternity has been established by clear and convincing evidence AND the father has openly and notoriously acknowledged the child as his own

Front 24

Standard of Proof

Back 24

If an issue of integration arises, the will proponent must show that:
(1) the will offered to probate is actually the will that the testator intended to make
(2) no insertions or removal of pages has occurred since the execution.

If the testator signs a will that is missing pages, the missing pages cannot later be admitted to probate!

Front 25

Revocation of a Prior Devise by Spouses

Back 25

Where a separation agreement includes a general release of rights against the estate of a spouse, the release is not "wholly inconsistent" with the will's voluntary bequests and appointments - these provisions will be enforced. For a revocation, the agreement must:
(1) contain a provision whereby the spouse explicitly renounces any prior testamentary disposition in his favor, OR
(2) employ language that clearly and unequivocally manifests the intent of the spouses to no longer remain beneficiaries under each other's wills

Front 26

Revocation

Back 26

Methods:

(1) the execution of a subsequent instrument:
i. by executing a valid subsequent will. Revocation may be partial or total, and the intent to revoke may be inferred from the inconsistency of provisions
ii. a writing that clearly indicates intent to revoke the earlier will - must be executed with the formalities of a will

(2) a physical act - only the whole will can be destroyed (including all codicils to that will, but a physical act done to a codicil revokes only that codicil). A will is presumed to be revoked if it was last known to be in the testator's possession and cannot be found or is found defaced after his death. Extrinsic evidence can be used to rebut this presumption, but declarations of the decedent are not admissible:
i. by physical destruction - can be done by a person other than the testator at the direction of the testator, in his presence and in the presence of at least two witnesses
ii. by writing "WILL REVOKED" across the face of the will

(3) operation of law - a disposition to a spouse or any provision naming such a spouse as executor is revoked by divorce or annulment (but not legal separation!), unless the will specifically provides otherwise. If the testator remarries his former spouse, the provisions are revived!

Front 27

Revival of a Revoked Will

Back 27

(1) by a codicil
(2) by a writing declaring the revival executed and attested to with testamentary formalities
(3) by re-execution of the will with the testamentary formalities

Front 28

Testimony for Probate of a Will

Back 28

(1) if one witness is unavailable (has forgotten or testifies against) - if the other witness testifies as to proper execution, the will may be admitted to probate

(2) if all witnesses are unavailable, the will can be admitted to probate upon a showing of:
i. proof of the handwriting of the testator, AND
ii. proof of the handwriting of at least one of the attesting witnesses, AND
iii. other facts as necessary to prove the will

(3) self-proving affidavits - by substituting an affidavit instead of witness testimony but only in an uncontested case. The affidavit is executed with the will and sets forth sufficient facts to establish due execution

Front 29

In Terrorem (No Contest) Clause

Back 29

disqualifies anyone contesting the validity of the will whether or not the person had reasonable cause to bring the contest. Exceptions:

(1) the person contested the will on the ground that the will was forged or revoked, and had probable cause to do so
(2) the probate of the will was contested on jurisdictional grounds
(3) the contest was brought on behalf of an infant or incompetent
(4) the contest was brought on the ground that the will was not properly executed
(5) the person affected brought an action to construe the will's terms

If a spouse attempts to contest a will - she will lose her right to the elective share

Front 30

Confidential Relationships Presume Undue Influence

Back 30

the contestant must show that:

(1) a confidential relationship existed between the testator and the person allegedly exerting the influence
(2) the person with whom the testator had this confidential relationship actively participated in the preparation of the will
(3) the alleged influencer benefited substantially from the will

Front 31

Fraud

Back 31

Elements:
(1) false representations were made
(2) that were known to be false by the person representing
(3) with intent to defraud the testator
(4) the testator did not know and had no reason to know of the falsity of the representations
(5) the testator relied upon the representations