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131 Cards in this Set

  • Front
  • Back
Intestate Decedent survived by spouse and no children -- spouse takes __________ .
full estate
Intestate decedent survived by spouse and children -- spouse takes ______ .
50k and 1/2 the residuary. If estate less then 50k, spouse takes all.
Decedent Survived by children only. Children take ________ .
Property divided equally among children.
The issue of predeceased children
1. Divide estate into as many shares as there are issue at the first generational level

2. All living issue at first generational level take one share

3. Shares of the deceased issue at the first generational level are combined and then equally distributed among the issue at the second generational level
Decedent not survived by spouse or children
1. All to parents of surviving parents

2. All to issue of parents who take per capita at each generation
Define "per stirpes" distribution
Issue of deceased child take the share that the predeceased child would have taken if alive.
General Rule for adopted children and intestate distribution is ________.
Adopted children have full inheritance rights from adoptive parents NOT natural parents
Child Adopted by relative
If adopted child related to decedent by birth and adoptive relationship, takes under birth relationship only unless decedent was adopting parent then under adoptive relationship
Non Marital Children take from which parent?
Take from both mother AND father as long as paternity is proved
What are the 6 steps to disqualifying a spouse when the decedent dies intestate? (DISMAL)
1. Divorce (valid decree)
2. Invalid Divorce (now recognized)
3. Separation Decree (not agreement)
4. Marriage is Void
5. Abandonment/Lack of support
Define "advancement"
Lifetime gift to distributee
What was the effect of an advancement at common law?
Was presumptively an advancement of distributee's intestate share to be taken into account at distribution
What is the effect on an advancement under NY law?
Not recgonized unless ...

1. Contemporaneous writing made at time of gift AND

2. Signed by donor OR donee
The law may compel a person to be a distributee, True or false?
False. A potential distributee can disclaim.
What are the elements of a valid disclaimer?
1. In writing, signed and acknowledged (notary)

2. Affidavit stating that there was no consideration given for disclaimer

3. Is irrevocable

4. Filed with surrogate ct. within 9 months of decedent's death
What is the 7 point test for a duly executed will?
1. Testator must be 18

2. Signed by T or by someone at T's direction.

3. Signature "at end thereof"

4. Must sign or acknowledge signature in presence of witnesses (though not all at same time)

5. Publish will

6. At least 2 witnesses

7. Execution ceremony must be completed within 30 days of first witness signing
Where a Testator has their name signed by someone else at the T's direction, what are the additional requirements for the signor?
1. Must also sign their name AND

2. Cannot be counted as witness AND

3. Must affix their address (failure to do so won't defeat will)
What does it mean to publish a will?
T must communicate to witnesses that they are witnessing a will by saying "last will and testament"
Under NY law, must attesting witness sign the will in the presence of each other?
No. But under the common law they must.
In a will contest, who has the burden of proving due execution?
The will proponent.
Who must testify where only one attesting witness is available to testify for the proponent of a will?
The other witness
What must the will proponent prove if neither attesting witness is available to testify in probate court?
Must prove testator's signature AND the signature of ONE attesting witness.
If a will is not self-proved what who must testify and to what?
Both witnesses must testify as to the facts necessary to prove due execution
What is an attestation clause?
Appears below the testator's signature line and above the witness signature line and recites all of the elements of due execution.
What is the effect of an attestation clause?
Is prima facie evidence of the facts presented.
Are attestation clauses or self-proving affidavits required in any states?
NO
What are two reasons to have an attestation clause?
1. Can rebut witness testimony (hostile witness)

2. If witness has a bad memory
What is a self-proving affidavit?
Sworn, signed statement affixed to will that states everything that a witness would have to say if called to testify.
What is the effect of a self-proving affidavit?
Can substitute for live testimony
What is the interested party statute?
States that the validity of a will is not affected by the mere fact that an attesting witness is also a beneficiary but a bequest to a witness is void unless ...

1. There are more than 2 witnesses (supernumary rule)

2. Interested witness would be a distributee if decedent died intestate
What does an interested witness take where that witness is beneficiary under the will and would also be an intestate beneficiary if the decedent died intestate?
His intestate share or the bequest in the will, which ever is larger
Are foreign wills admissible in NY probate proceedings?
Yes, if the will was valid under ...

1. Law where will executed

2. NY law

3. Law of the state where T was domiciled at the time of execution or the time of death
Once a foreign will is admitted to probate in NY which state's law governs?
New York
Define Holographic will
Will written entirely in T's handwriting and signed but was not witnessed
Define non-cupative will
Oral will (on DVD or CD)
Are holographic or non-cupative wills valid in NY?
Both are generally invalid. But if holographic will is recognized in another state and T died in NY, NY will accept.
What are two ways to revoke a will in NY?
1. Subsequent testamentary instrument

2. Physical Act
Name 4 methods of revoking a will
1. Express Revocation

2. Implied Revocation

3. Revocation by physical act

4. Revocation by physical act of another
Define Express Revocation
"I hereby revoke all will made by me"
How will a court deal with two wills that claim to be the last-in-time?
The court will read the two will together to the extent possible

Second will is treated as a codicil that only revokes inconsistent provisions in the 1st will.
How can a will be revoked by implication?
Where there are two wills both of which claim to be the last in time, the second will be seen to revoke the 1st will by implication if the first will is "wholly inconsistent" with the second.
Under what circumstances will a revocation by the physical act of another be considered valid?
1. At testator's request

2. In testator's presence

3. In presence of at least two witnesses
What is the presumption where will was last seen in T's possession but not found after death
Testator revoked by physical act
What is the presumption where will
last seen in T's possession or control and is found damaged?
Testator revoked by physical act
What is the effect of destroyed signature on a will?
Will is revoked.
What are the two ways to amend a will?
1. A new will revoking the first

2. A codicil
The 7 point test DOES NOT apply to an amendment to a will, True or False
False. Any change but be consistent with the 7 point test.
What is the rule for reviving a previous will?
Where T executes a will revoking an earlier will, T cannot revive the earlier will by merely revoking the later will.
How can a Testator validly revive a former will?
T must reexecute. The 7 point test will apply.
Define dependent relative revocation
Doctrine that states allows the revocation of a later will to be disregarded with the effect of allowing the later will into probate
What are the elements of valid dependent relative revocation?
1. Testator's revocation must be premised/dependent on a mistake of law (i.e. that revocation of later will revives an earlier one)

2. Disposition that results from disregarding revocation of later will must be similar to the testator's intent in attempting to revive the earlier will
In what two situations will the lost wills statute be applied
1. Dependent relative revocation

2. Truly lost will
What are the elements that must be proven under the Lost Wills Statute?
1. Lost will was duly executed

2. Lost or later will was not revoked

3. Wills provisions are proven by each of at least two credible witnesses or by a copy or draft of the will proven to be true and complete
What happens to a gift if the beneficiary dies during the testator's lifetime?
The gift lapses (dies) unless it is saved by an anti-lapse statute.
What is the NY anti-lapse statute?
Where a beneficiary dies before the testator, the gift does not lapse but rather vests in the beneficiary's issue.
Under what conditions will the NY anti-lapse statute apply?
1. Predeceased beneficiary was T's issue, brother or sister AND

2. Predeceased beneficiary leaves issue that survive T
How do you determine the members of a class for the purposes of a class gift?
Look to those who are alive at Testator's death.
What is the general rule concerning class gifts in a will?
Where a will grants a gift to a class, and some of the class members predecease T, surviving class members take in equal shares.
If a group of beneficiaries are individually named in the will, and one of them predeceases the testator, who takes their share?
The gift lapses and goes to the residuary, not to the other named beneficiaries.
What is the rule for adopted out children with regard to class gifts?
The adopted out child does not take under the class gift made in the will of a member of the birth family
Define the rule of convenience.
A class closes at the time of the distribution of the gift meaning that later born children are excluded. (fetus in gestation is an exception)
When does the class close when there has been an outright class gift in the will.
At Testator's death
When does the class close when testator has bequeathed a life estate or income with remainder in a class?
At the death of the life tenant or income beneficiary.
What does the Uniform Simultaneous Death Act provide?
If two persons die and its impossible to determine which one died first, the estate is distributed as if each one survived the other.
How does the Uniform Simultaneous Death Act dispose of joint property?
Property passes as though each owner survived the other (like tenancy in common)
What is the effect on the will if Testator marries after execution
No effect on the will but may affect distribution under the will
What is the effect on the will if the testator "un-marries" their spouse after execution?
Generally, all gifts and fiduciary appointments in favor of the spouse are revoked.
What are the exclusions to the "un-marry" rule?
1. Testator and spouse reconcile and remarry

2. Gifts to issue of former spouse

3. Appointment of former spouse as guardian of children
Define "pretermitted child"
Child that was born or adopted after the will was executed
What is the rule for pretermitted children?
EPTL protects only pretermitted children that were

1. Not provided for by any settlement

2. Neither provided for or mentioned in will
What does a pretermitted child found to be protected by the EPTL take where the Testator had one or more children and gave those children nothing
Pretermitted Child takes nothing
What does a pretermitted child found to be protected by the EPTL take where the Testator had one or more children and provided for those children in the will.
Pretermitted child takes as one of the other children as if a class gift was made.
What does a pretermitted child found to be protected by the EPTL take where it appears the Testator intended to make a gift limited to the children alive at the execution of the will?
Pretermitted Child takes its intestate share.
What does a pretermitted child found to be protected by the EPTL take where the Testator had no children at execution of the wil?
Pretermitted child takes its intestate share.
What is the common law rule with respect to negative bequests?
Where a will does not make a complete distribution of an estate, words of disinheritance are NOT given effect with respect to intestacy distribution.
What is the NY rule with respect to negative bequests
Where a will does not make a complete distribution of an estate, words of disinheritance are given FULL EFFECT with respect to intestacy distribution
Under NY law, are references to facts and events outside (extrinsic documents) considered together with the will?
This is called "incorporation by reference" and it is not recognized under NY law. The standard 7-point test applies.
Will a NY probate court consider acts of independent significance?
Yes. These are nontestamentary acts (i.e. acts that have an purpose/motive independent of testamentary purposes) and are given full effect in NY.
Name and distinguish 5 classes of gift
1. Specific gift - "I give the crown jewels to bob.

2. Demonstrative Legacy - general amount but designates specific place from which its should come

3. General Legacy (gen amount) -- I give 1 billion to Anne

4. Residuary Disposition - "remainder or residue" to Anne

5. Intestate Property - partial intestacy with no residuary clause so goes to intestacy
Give an example of a "Special Gift"
"I give the crown jewels to bob"
Give an example of a "general legacy"
"I give 200K to Adam"
What is a "Demonstrative Legacy"
General amount but designates a specific source from which it is to be paid
What is "Intestate Property"
Where partial intestacy results and there is no residuary clause. The remainder goes to intestacy

E.g. --

- 1 billion to John (my friend)
- John predeceases me.
- No residuary clause
- Anti lapse doesn't apply.
- Remainder to intestacy
When will the abatement rule be applied to an estate?
If there are more claims to the estate (creditors) than there are assets in the estate, gifts may abate.
In what order will the gifts in an estate abate?
1. Intestate and residuary property

2. General Legacies (pro-rata)

3. Demonstrative Legacies (pro-rata)

4. Specific Legacies
Define Ademption
Failure of a gift.
When will ademption apply to a gift?
A will that grants a specific gift of property that cannot be found or that T no longer owns, will adeem (fail).

Note -- does not apply to demonstrative legacies
What are three statutory exclusions to the ademption rule?
1. Insurance proceeds for damaged, lost or stolen property

2. Proceeds received under an executory contract

3. Proceeds from a guardian or conservator's sale of specifically bequeathed property
What is the rule with respect to specific gifts of encumbered property?
The beneficiary is entitled to have that property exonerated if specifically stated in the will.
Stock of publicly traded corporations are always general legacies, True/False
False. If the stock is bequeathed as "my ... stock" it is a specific gift.
Stock of a closely held corporation is always a specific gift, True/False.
True.
What is the purpose of the elective share statute?
To protect the surviving spouse against disinheritance by giving him or her a minimum share of the testator's probate estate.
Define Probate estate
Value of the estate after payment of debts but before payment of estate taxes
What does the disinherited spouse take under the elective share statute?
50k or 1/3 of the estate
If the surviving spouse's elective share is not satisfied from where does the spouse collect?
Other beneficiaries contribute pro-rata
Define "elective share estate" or "augmented estate"
Probate estate + testamentary substitutes
Why are testamentary substitutes included in the augmented estate?
To prevent a testator from disinheriting their spouse by transferring property to other people.
Name and distinguish 7 T-subs (TS LEG UP)
Generally if T still has interest in property, its a T-sub

1. Totten Trust

2. Survivorship Estate

3. Lifetime Transfers with strings attached

4. Employee pension, profit sharing, and deferred compensation plans

5. Gifts made within 1 year of death

6. US gov bonds and POD arrangements

7. Powers of appointment
Name and distinguish 6 items that are NOT t-subs (LOG PIT)
1. Life insurance

2. O

3. Gifts less than 13k made within 1 year of death

4. Pre-marriage irrevocable transfers (e.g. gift to a friend)

5. Irrevocable Transfers made more than one year before death

6. Irrevocable transfers made during the marriage where testator retains a life estate.
In calculating the elective share amount the full value of the t-sub is included except which three situations?
1. Survivorship estates involving the testator and 3rd party (consideration furnished test applies)

2. Survivor estates involving testator and surviving spouse (half is a t-sub)

3. Survivor estates created before marriage involving testator and 3rd party.
In the context of elective share, what is the rule for trusts for testators dying after 9/1/94?
The trust will not satisfy the elective share interest. The trust should be killed and divided.
When must the disinherited spouse file a notice of election?
Within 6 months of after letter is issued by the surrogate court at the start of the probate proceedings
The disinherited spouse must be domiciled in NY at the time of the T's death to claim an elective share, true/false
True.
What is the property that the surviving spouse gets automatically before anything is done with the estate?
Cars (up to 15k)
Furniture, appliances etc up to 10k
Cash allowances up to 15k
Animals, farm machinery up to 15k
Books, pictures, software up to 1k
How can a spouse be disqualified from taking under the elective share statute?
1. Divorce

2. Invalid Divorce now recognized

3. Separation agreement (valid)

4. Marriage is void

5. Abandonment

6. Lack of support
Define powers of appointment
Authority granted in or reserved by a donee enabling the donee to designate, within limits proscribed by the donor, the person who shall take the donor's property and the manner in which they take it.
Define "takers in default"
Persons who take property if donee fails to correctly exercise the power of appointment.
Name and distinguish the 4 types of powers of appointment.
1. General Power of appointment

2. Special Powers of appointment

3. Presently Exercisable POA

4. Testamentary Power of Appointment
What is a Presently exercisable POA?
POA that donee can exercise during their lifetime.
What is a testamentary POA?
POA that donee can only exercise by will.
What is a general POA?
Donee can appoint herself, creditors, or her estate as if she owned herself.
What is a specific POA?
POA where donee cannot appoint herself and typically there is a limited class of persons to whom she can appoint.
Is a general presently exercisable POA a t-sub
Yes. Add value when calculating elective share.
Is a general testamentary POA a t-sub?
No. Management cannot access during their lifetime.
Are Special Powers of appointment t-subs?
No. Management cannot access during their lifetime
Generally speaking, when can creditors get to the property in the POA context?
If the donee can access the estate during her lifetime, so can the creditors.
What is the 5 point test for the RAP in the POA context
1. ID the interest

2. Give the RAP rule

3. Find the LIB and run with it

4. Most likely apply the NY reform statute

5. Give the suspension rule
What is the general rule with respect to will contests?
It is conclusively presume that T read the will and intended its consequences thus the plain meaning of the will will not be overturned by extrinsic evidence
Is extrinsic evidence admissible to clarify a latent ambiguity in a will?
Yes. Facts and circumstances evidence, evidence of testator's declarations to 3rd parties, and evidence of statements to drafting attorney are all admissible
Is extrinsic evidence admissible to clarify a patent ambiguity in a will?
Yes. Facts and circumstances evidence, evidence of testator's declarations to 3rd parties, and evidence of statements to drafting attorney are all admissible
Define a "contract to make a will"
Joint will in which two people promise that the survivor will not change or revoke the will after death of other spouse.
What is the only way in which contract to make a will or to not revoke a will can be established?
By express, written statement of intent.
What are the elements of testamentary capacity?
Testator must ...

1. Understand the nature of the act

2. Know the nature and approx. value of his property

3. Know the "natural object of his bounty" (know his family members and loved ones)

4. Must understand dispositions (gifts) he was making
Define "insane delusion"
T is of generally sound mind but has a persistent belief against all evidence, probability, and control which cause or affect the testator's testamentary act.
What are the elements of undue influence?
Will contestant must prove

1. Existence of influence

2. Effect of influence was to overpower the mind of T

3. Product was a will or a gift in a will which would not have happened but for the influence
What is Putnam Scrutiny?
Automatic inquiry into whether a T's bequest to the drafting attorney was voluntary
What three written discolsures must an attorney make when that attorney was named the executor of a T's estate?
1. Any person can be named executor

2. Executor gets statutory commission

3. Attorney is also entitled to legal fees for representing the estate

Note -- client must also sign
What is the effect of an attorney's failure to make the 3 disclosures where that attorney was named the executor of T's estate?
Attorney gets only half of the statutory commission.
What is a no contest clause?
Clause in a will that states if anyone who object to the will gets nothing
What is the NY rule with respect to no contest clauses?
Subject to 4 exceptions, they are given full effect even if there was probable cause to challenge the will
What are the 4 exception to the NY rule with respect to no contest clauses.
1. Claiming forgery or that will was revoked by later will

2. Contest filed on behalf of incompetent or infant

3. Construction proceeding to construe will's terms

4. Objection to jurisdiction of the court.