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50 Cards in this Set
- Front
- Back
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Distributees
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individuals who inherit property under intestate succession
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NY wills statute
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EPTL
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3 scenerious when to use art 4 of the EPTL
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No will
Not complete Improper modification |
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surviving spouse takes - under intestacy & elective share
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intestacy: 50K + 1/2 estate
elective share: 50K or 1/3 estate |
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method by which intestate estate passes to children & issue of predeceased children
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by representation/per capita at each generation
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DISMAL
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Divorce
Invalid divorce Separation decree Marriage is void Abandonment Lack of support |
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Exception to adoption rule
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when a child is adopted by a spouse of a natural parent: child and issue can inherit from both adopting parent & either natural parent
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Special adoption rule
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Child adopted by relative: child inherits under natural relationship only unless decedent was the adopting parent, then the child inherits under adoptive relationship only
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Paternity can be established during life by:
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Legitimated by marriage
Order of filiation in a paternity suit is entered during father’s lifetime Father files a witnessed, acknowledged affidavit of paternity with the putative father registry |
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Paternity established after death by:
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Clear & convincing evidence
Openly ack child as own |
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Advancement presumption
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There is none.
Gift will be advancement only if there's a contemporary signed writing at time of gift. |
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Elements of valid disclaimer
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In writing, signed, & acknowledged before notary;
Accompanied by a separate affidavit that no consideration was received & that no one paid you to disclaim (unless court authorized receipt of consideration) Irrevocable Filed with Surrogate’s court w/i 9 months after date of death |
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7 point test for valid will
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18 or over
Signed by T At end thereof Sign/ack & publish to 2 witnesses Executed w/i 30 days |
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reqs if none of the witnesses are able to testify to will
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will proponents must prove signatures of 1 witness and of testator
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Foreign Wills act
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END - admissible to probate if
Executed properly in other state or under NY law Domiciled - law of state where T was domiciled |
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If subsequent will does not revoke prior wills:
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read 2 wills together with 2nd will as codicil; where the 2 differ, recent will controls
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reqs for physical revocation by proxy
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Need proxy, 2 Ws and T - done at T's request
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Proof of Lost Wills statute
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to overcome presumption or revocation - each provision must be clearly and distinctly proved by at least 2 Ws or a valid copy or draft
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USDA
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Uniform Simultaneous Death Act - if 2 people die at same time, treat provision of will as if they survived the other
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USDA and Jointly held property
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obliterates right of survivorship and treated as TIC
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name of statute that applies to children born after will execution
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pretermitted children stat
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counterpart to advancement
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Satisfaction of legacies
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Demonstrative legacy
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A general amount from a specific source
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General legacy
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A specific amount from a general sourse
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Priority of bequest to abate
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Residue/intestacy
General legacies, pro rata Demonstrative legacies, pro rata Specific gifts |
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Rule on property encumbered by liens
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B assumes the line unless bequest specifically states it's to be paid off by estate
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Rule of Ademption
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If a will makes a specific gift of property and property cannot be found or is not owned by T at her death, the gift fails under doctrine of ademption, w/o regard to T’s intent
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general exceptions to ademption rule
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General and specific legacies don't adeem - spec will turn into general; assets will be sold if there's no $ in estate
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Statutory exceptions to rule of ademption
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casualty insurance proceeds for lost or damaged goods
K that hasn't been performed yet Sale by Guardian/conservator of specifically bequeathed property |
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Ademption & Gifts of shares of stock in publicly traded corporations
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Don't adeem - treated as gen legacies
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Ademption and gifts of shares of stock in closely held Co.
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treated as specific legacy but will adeem if they don't exist
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Stock split rule
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B will get all of the split stocks but will not get divdends
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Mistake & ambiguity types
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Latent - not obvious on face of will
Patent - obvious |
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Evidence allowed to correct mistakes & ambiguity
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Latent: facts & circs; T's statements to atty or 3rd parties
Patent: no statements to 3rd party |
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Rule of T-Subs
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Testamentary Substitutes - used when T tried to screw spouse by moving property into nonprobate asssets
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Specific T-subs
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TS LEG UP
Totten Trurst Survivorship estates Lifetime transfer /w strings Employee pension Gifts made w/i 1 year of death ....beyond 12K gift tax US gov't bonds Powers of apointment |
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Exclcuded from T-subs
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LOG PITT
Life insurance O Gifts made w/i 12k tax exception Premarriage irrevocable transfers Irrevocable transfers made more than 1 year before death Transfers, irrevocable, with retained life estates |
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Consideration furnished test
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For t-subs: surviving spouse has the burden of proof as to dead spouse’s contributions to the assets/acquisition if dealing with real property or to joint bank account
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Exempt property rule
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certain personal property comes right off the top as exempt - can't be more than 56K
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reqs for sufficient capacity
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T understands nature of the act; and T knows the nature & approximate value of property; and T knows the ‘natural object of his bounty’; and
T understands the dispositions |
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Insane Delusion
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T is of sound mind on other subject but has a persistent belief in supposed facts which have no real existence except in T’s perverted imagination. The facts are against all evidence, probability & control & produce the exercise of the testamentary act
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Undue Influence def
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existence of testamentary capacity subjected to and controlled by a dominant influence of power
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Burden of proof for undue influence
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Existence & exertion of an influence; and
Effect of influence was to overpower mind & will of T; and Product is a will or a gift in a will which would not have happened but for that influence |
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Inference of undue influence if
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Will makes a gift to one in a confidential relationship; and
Person active in preparing the will |
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If executer is accused of undue influence:
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Any person can be named an executor, not just an atty; and
Executor receives statutory commission; and Atty will also be entitled to legal fees for representing the estate Client must sign & ack w/ 2 witnesses |
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4 ways to revoke Totten Trusts
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Withdraw all funds
lifetime: notarized writing naming B and financial institution & intent to revoke sent to bank Revocation by will (fulfilling same reqs as lifetime) Death of B (trust reverts, does not go to B's heirs) |
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Creditors and totten trusts
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Can reach it
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reqs for a charitable trust
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•must have indefinite Bs &
•must be reasonably large group; •cannot have spec named persons as Bs |
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statutory spendthrift provision
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NY protects all income interest in trusts with spendthrift protection even if the trust instrument does not contain a spendthrift clause but applied only to income from trust, not principal
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5 types of creditors allowed to touch trust
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•Creditors who furnish necessities
•Child Support and alimony •Federal tax liens •Excess income beyond that needed for support & education •10% levy under CPLR 5205 (e) |
