Ny - Wills

Front 1

[Intro]

What should EVERY WILLS ESSAY begin with?

Back 1

-Say "under the EPTL" (Estates Powers and Trusts Law)

Front 2

[Intestacy Rules - Distribution]

What are the first 4 classes of persons with order of priority for appointment as an administrator?

Back 2

-Surviving Spouse
-Children
-Grandchildren
-Parents

Front 3

[Intestacy Rules - Distribution]

Memorized rules for Wife's/Children's share

Back 3

-If spouse, but no issue: ALL (100%) to spouse

-If spouse and issue OF THE DECEDENT: First $50K + 1/2 remainder to spouse (the other 1/2 goes to the residary and gets distributed to children OF THE DECEDENT; cannot go to spouse's children he didn't adopt!)

-If issue only, all alive: Goes to children in equal shares

-If issue, but predeceased children: Per capita at each generation (WHERE EACH GENERATION ALWAYS HAS EQUAL SHARES)

Front 4

[Intestacy Rules - Distribution]

What is the order of distribution if a decedent is not survived by ANY spouse or issue?

Back 4

-All to surviving parents

or if none ...
-All to ISSUE of parents (siblings of decedent), by per capital at each generation


or if none ...
-1/2 to maternal grandparents' side, stopping at the surviving grandparent(s), else to pre-deceased maternal grandparents' children/grandchildren issue by per capital at each generation

-1/2 to paternal grandparents' sid, stopping at the surviving grandparent(s), else to pre-deceased paternal grandparents' children/grandchildren issue by per capital at each generation

Front 5

[Intestacy Rules - Inheritance Rights of Children]

Effect of adoption on family adopting? on birth famiy?

Back 5

-For family adopting: Treated as child, both for inheriting from and inheriting to

-For birth family: NO right from natural parents, and birth family can't get TO adopted child's share (EXCEPT if adopted by the step-parent -- then can the adoptee can inherit from ALL THREE parents)

Front 6

[Intestacy Rules - Inheritance Rights of Children]

Odd NY rule for adoption by a family relative, what are the adoptee's intestacy inheritance rights?

Back 6

-Adoptee inherits under the BIRTH RELATIONSHIP ONLY ...

-EXCEPT where the decedent was the DIRECT ADOPTING PARENT, then the adoptee inherits for that purpose, only under the adopting parent

Front 7

[Intestacy Rules - Inheritance Rights of Children]

3 situations when a non-marital child inherit from the father, as established DURING THE FATHER'S LIFE

Back 7

-Father Marries mother after child's birth
-Paternity suit order
-Father files a witness/acknowledged affidavit w/ the putative father registry

Front 8

[Intestacy Rules - Inheritance Rights of Children]

2 situations when a non-marital child inherit from the father, as established AFTER THE FATHER'S DIES

Back 8

-At Probate by clear and convincing evidence openly and notoriously held child out to be his own (support by itself is NOT enough)

-By DNA provided prior to death

Front 9

[Intestacy Rules - Variations on Intestate Distributions]

5 situations that will disqualify a spouse from taking her intestate share, TREATING HER AS PRE-DECEASED

Back 9

***DISMAL
-(final) Divorce decree
-Invalid divorce (non-finalized divorce) PROCURED BY THE SURVIVING SPOUSE (not the decedent)
-(final) Separation decree (NOT just an agreement unless specified otherwise) RENDERED AGAINST THE SURVIVING SPOUSE (not against the decedent)
-Void Marriage
-Abandonment/Lack of support BY THE SURVIVING SPOUSE

NOTE: No specific slayer statute in NY

Front 10

[Intestacy Rules - Variations on Intestate Distributions]

What is the NY rule for advancements ?

Back 10

-NY has REJECTED the "advancement" presumption BY STATUTE, so ...
-NO ADVANCEMENT unless BOTH:
---Contemporaneous writing made at the time of the gift, and
---Signed by the donee OR donor

Front 11

[Intestacy Rules - Variations on Intestate Distributions]

How to calculate the share of others if there was an advancement?

Back 11

-ADD the value of the advancement to the total estate, then divide as normally, THEN subtract the advancement's value from the person who received the advancement

Front 12

[Intestacy Rules - Variations on Intestate Distributions]

What is the NY rule for VALID disclaimer/renunciation? What is its effect?

Back 12

TO be Valid:
-writing, signed and acknowledged before a notory stating CHOICE IS IRREVOCABLE
-ACCOMPANYING AFFIDAVIT Satying no consideration receieved for disclaiming
-Filed w/ Surrogate's ct. w/i 9 months AFTER date of death

Effect: Treat as pre-deceased (UNLESS would purposely lessen another's share --RARE--then will treat as dying 1 day after)

Front 13

[Intestacy vs. Testacy Terms]

Terms for someone who dies without/with a will?

Back 13

-Intestate/testate

Front 14

[Intestacy vs. Testacy Terms]

Terms for PERSON who dies without/with a will?

Back 14

-Decedant/Testator

Front 15

[Intestacy vs. Testacy Terms]

Terms for person who inherits under intestacy/will

Back 15

-Distributee/beneficiary

Front 16

[Intestacy vs. Testacy Terms]

Terms for the personal representative of a person who dies without/with a will

Back 16

-Administrator/Executor

Front 17

[Intestacy vs. Testacy Terms]

Terms for lifetime gifts that cut off inheritance rights from someone without/with a will?

Back 17

-Advancement/Satisfaction of legacy

Front 18

[Validity of Wills - Requirements]

What are the 7 main will formality requirements?

Back 18

-18+
-signed by the testator (or by representative at T's direction)
-Signature AT THE END
-T sign or acknowledge in presence of each witness
-Publish the will (declare will to her her last will and testament)
-At least 2 witnesses sign (do NOT have to sign in each other's presence)
-Execution ceremony w/i 30 days (starts to run from when first witness signs)

Front 19

[Validity of Wills - Requirements]

If a will is signed by a 3rd party/representative what 3 additional requirements must be met?

Back 19

-Representative must signed her name
-She cannot be considered as a valid witness
-Must affix her address (failure to do this does not invalidate a will)

NOTE: just HELPING the signature does NOT a representative make -- does NOT disqualify a witness if just helped the witness

Front 20

[Validity of Wills - Requirements]

WHO has the burden on proving a will was duly executed?

Back 20

-The will proponent

Front 21

[Validity of Wills - Requirements]

What is an attestation clause?

Back 21

-A clause that appears below a T's signature on teh will that receites all the elements of due execution
-It is NOT substantive evidene, but merely corroborative/refresh recollection of attesting witnesses

NOTE: this is NOT required, just advisable

Front 22

[Validity of Wills - Requirements]

What must a will proponent prove if there IS an attestation clause on the will to get the will into probate? What is the will is does NOT have an attestation clause?

Back 22

DOES have clause, either:
-One wintess testifying as to due execution is sufficient if the other is dead/unavail.
-If NO witnesses avail, then proposent at least has to show the SIGNATURE is correct for one of the witnesses and the T

Does NOT have clause, then must have BOTH attesting witnesses attest to facts to show due execution

Front 23

[Validity of Wills - Requirements]

What is a self-proving affidavit?

Back 23

-Where both witnesses recite all the same statements they would make in court re: proper execution
-It DOES substitute for live testimony of the witness, UNLESS an INTERESTED PARTY OBJECTS (then fall back to will proponent proofs)

NOTE: this is NOT required, just advisable

Front 24

[Validity of Wills - Interested Witness Statute]

General affect if an interested part serves as one of the two witnesses?

Back 24

-the WILL IS STILL VALID,
-Just any bequest to the witness is VOID

Front 25

[Validity of Wills - Interested Witness Statute]

What are the 2 exceptions to VOIDING an interested witness's share? ****

Back 25

-Supernumeraty rule: 3 witnesses, jsut drop off the unneeded witness

-The interested witness would take as a distributee if the T died intestate, THEN the interested wienss gets the LEAST OF:
---The bequest under the will
---Her intestate share

NOTE: Under EITHER of these categories, the WILL IS STILL VALID!!!

Front 26

[Validity of Wills - Interested Witness Statute]

Effect if a witness is named as an executor?

Back 26

-NO effect at all

Front 27

[Validity of Wills - Foreign Wills Act]

When will a FOREIGN will admissible to probate in NY? (3 possibilities)

Back 27

-If the will was validly executed in the state where it was executed, when it was executed
-If the will was validly executed under NY law
-If the will was validly executed under the law of the states where T was DOMICILED at death OR at the time of execution

NOTE: this is only to determine if you get get in the door, must follow NY law to interpret will construction/provisions

Front 28

[Validity of Wills - Holographic and Nuncapative Wills]

What are holographic wills? When are they valid in NY?

Back 28

-They are handwritten & unwitnessed wills
-VOID IN NY!

NOTE, however, if holographic will is VALID in the state where it was executed, then it can be probated in NY under the foreign wills act

Front 29

[Validity of Wills - Holographic and Nuncapative Wills]

What are Nuncapative wills? When are they valid in NY?

Back 29

-Oral wills
-VOID IN NY!

Front 30

[Validity of Wills - Atty Malpractice]

Can would-be beneficiaries that do not take b/c atty screwed up the will sue the atty?

Back 30

-NO, b/c no privity of K b/w the would-be beneficiaries and the atty

Front 31

[Revocation of Wills - Valid revocations]

What, generally, are the only 2 ways to revoke a will?

Back 31

-By subsequent testamentary instrument (cts will TRY to read two subsequent wills together if no express revocation launguage in the later will; if impossible b/c wholly inconsistent, then cts will consider the earlier will revoked by implication)

-By physical act + intent to revoke (NOT JUST WRITING ON THE BOTTOM)

Front 32

[Revocation of Wills - Valid revocations]

When is it okay to revoke a will by the physical act OF ANOTHER (a proxy)?

Back 32

Okay if:
-At T's request
-In T's presence, AND
-Witnessed by at LEAST 2 witnesses (therefore 4 people total: T, proxy, 2 witnesses)

Front 33

[Revocation of Wills - Valid revocations]

2 situations under which a T is PRESUMED to have revoked by physical act:

Back 33

-Will last seen in T's possession/control and cannot be found
-Will last seen in T's possession/control and is in damaged/torn condition

Front 34

[Revocation of Wills - Valid revocations]

What are the ONLY 2 ways a will can be changed?

Back 34

-New will that revokes the 1st
-Valid codicil that changes the will

NOTE: both of these requirements must meet ALL will formalities

Front 35

[Revocation of Wills - Valid revocations]

What effect if words affixed after will is signed/witnessed?

Back 35

-DISREGARD

Front 36

[Revocation of Wills - Valid revocations]

What effect if ONLY A SINGLE LINE is destroyed by physical act

Back 36

-NOT RECOGNIZED in NY TO REVOKE SINGLE LINE
-Whole ORIGINAL WILL STILL VALID

Front 37

[Revocation of Wills - Revival of Revoked Wills]

What are the ONLY ways to "revive" and earlier-revoked will?

Back 37

-Re-execute the earlier will
-Republish by codicil

Front 38

[Revocation of Wills - Revival of Revoked Wills]

What is DRR? When is it used?

Back 38

-Stands for dependant relative revocation

WILL revive the LATER revoked will (rule of SECOND BEST result) if:
-Revocation that is based on a mistake of law
-IF, BUT FOR the mistake, T would not have made the revocation (<<< This must be proven under the lost-wills statute)

BUT, in NY, to revive the later-will, the later-will must COME CLOSE TO THE DISPOSITIONS INTENDED WHEN T ATTEMPTED TO REVIVE THE EARLIER WILL

Front 39

[Revocation of Wills - Revival of Revoked Wills]

When is the lost wills statute used?

Back 39

-To "revive" a will under DRR
-To prove the contents of a truly lost will

Front 40

[Revocation of Wills - Revival of Revoked Wills]

3 step process of under the lost wills statute

Back 40

-Lost will/later will was originally duly executed (7 steps)
-Lost/later will should not be treated revoked
----EITHER overcome presumption of revocation (such as in T's control and now missing),
----OR prove revocation should be disregarded under DRR
-Prove each will provision through at least 2 witnesses -- OR -- produce a copy/draft of the will which is shown to be true and complete

Front 41

[Death of Beneficiary During Testator's Lifetime - Anti-lapse]

When dose the anti-lapse statute kick in?

Back 41

-When a beneficiary dies before the testator, will SAVE a gift from going to the residuary

Front 42

[Death of Beneficiary During Testator's Lifetime - Anti-lapse]

What does NY's anti-lapse statute provide?

Back 42

Gift does NOT lapse if BOTH:
-Pre-deceased beneficiary was the T's ISSUE or SIBLING, -and-
-The pre-deceased beneficiary leaves issue who survive the T (goes to the pre-deceased's ISSUE, NOT spouse)

Front 43

[Death of Beneficiary During Testator's Lifetime - Anti-lapse]

Under what odd circumstance does anti-lapse apply

Back 43

DOES apply if the would-be beneficiary IS alive, but is TREATED as pre-deceased b/c the beneficiary previously did a valid DISCLAIMER

Front 44

[Death of Beneficiary During Testator's Lifetime - Anti-lapse]

What launguage in a will will act to DEFEAT the anti-lapse staute?

Back 44

-Where the will says "to brother X, IF HE SURVIVES ME"

Front 45

[Death of Beneficiary During Testator's Lifetime - Lapse in Residuary]

What effect if one of several Residuary beneficiaries' shares is NOT saved by the anti-lapse statute?

Back 45

-Then the residuary is just split in proportion to their original interest among the remaining residuary beneficiaries

Front 46

[Class Gifts]

For class gifts -- ex: "my children" -- who takes upon T's death?

Back 46

-Only those children then alive at T's death

BUT REMEMBER: the anti-lapse statute MAY SAVE a pre-deceaced class person's share to the pre-deceased's issue

NOTE: Adopted-out members of the class DO NOT TAKE from the birth family

Front 47

[Class Gifts]

What is the name of the rule that prevents the inheritance of class members that are born AFTER a decedent dies?

Back 47

-The rule of convenience

(technically the class doesn't close until 280 days after, if there is a class member in gestation at the time of the decedent's death)

Front 48

[Class Gifts]

When does the class close of a LIFE ESTATE?

Back 48

-Again, at the death of the LIFE ESTATE holder (not at the date of the original decedent's death that created the life estate, remainder in a class)

Front 49

[Simultaneous Deaths - USDA]

What does USDA stand for?

Back 49

-Uniform simultaneous death act

Front 50

[Simultaneous Deaths - USDA]

What does the Uniform simultaneous death act provide?

Back 50

-If death is simultaneous, TREAT THE OTHER PARTY AS PRE-DECEASED (ie -- treat the decedent as SURVIVING)

NOTE: NY does NOT have the 120 Hour rule, so evidence that person survives for 10 extra minutes -- that fact governs

Front 51

[Simultaneous Deaths - Jointly-held property]

What effect on JTROS property held by two persons who simultaneously die under the USDA?

Back 51

-Property passes as through it's a tenancy in common (1/2 stake in property is distributed to down via each person's will)

Front 52

[Changes in Family post-will execution - Divorce]

What effect if , after the will is made, the is a FINAL decree of divorce/annulment/separation?

Back 52

-Treat the Ex as PRE-DECEASED

NOTE: Anti-lapse does NOT apply to spouses, only to issue & siblings
NOTE: RE-MARRIAGE REVIVES ALL GIFTS
NOTE: under new NY statute, this pre-decease rule ALSO APPLIES TO LIFE INSURANCE AND TRUSTS!

Front 53

[Changes in Family post-will execution - Divorce]

Which appointment/gifts are NOT affected by divorce?

Back 53

-Gifts and fiduciary appointments to issue
-Fiduciary appointments FOR GUARDIANSHIP are not affected, EVEN AS TO THE EX

Front 54

[Changes in Family post-will execution - Child is born]

What are pretermited children?

Back 54

-Children born (or in gestation) AFTER a will was written, AND
-Who are NOT PROVIDED FOR by any other settlement (not provided for in life insurance in lieu of in the will)

Front 55

[Changes in Family post-will execution - Child is born]

What is the EPTL approach to protect children born BEFORE a will is written?

Back 55

-EPTL does NOT protect those children AT ALL, if they are left out, it's assume the decedent had a reason

Front 56

[Changes in Family post-will execution - Child is born]

What is EPTL's protection of pretermited children WHERE T had AT LEAST ONE CHILD AT TIME WILL WAS EXECUTED?

Back 56

-If no provision for ANY child, then pretermited child gets nothing
-If provisions to other children, then pretermited child SHARES AF IF THIS WAS A CLASS GIFT!!! (note, this can screw over some other siblings)
-If provisions narrowly tailored to only the children LIVING AT THE TIME of the decedent's will execution, then pretermited child gets INTESTATE SHARE

Front 57

[Changes in Family post-will execution - Child is born]

What is EPTL's protection of pretermited children WHERE T had NO CHILDREN AT TIME WILL WAS EXECUTED?

Back 57

-pretermited children get intestate share (gets a piece of other beneficiary's shares)

Front 58

[Negative Bequests]

What effect in NY if someone DISINHERITS someone in a will, where that share will NOW GO TO INTESTACY?

Back 58

-EVEN if residuary falls to intestacy, NY will honor a negaitve bequest IN INTESTACY, thereby BARRING the person from EVEN TAKING UNDER INTESTACY

Front 59

[Variations to Testate Distributions - Lifetime Gifts]

What is the term equivalent to an "advancement" under intestacy for wills/testacy?

Back 59

-"Satisfaction of Legacies"

Front 60

[Variations to Testate Distributions - Lifetime Gifts]

When will there be a "Satisfaction of Legacies" such that a will gift will be ignored?

Back 60

-NO "Satisfaction of Legacies" unless BOTH:
---Contemporaneous writing made at the time of the gift, and
---Signed by the donee OR donor

Front 61

[Variations to Testate Distributions - Outside events]

What is an extrinsic document?

Back 61

-A document OUTSIDE THE WILL that can be changed outside of the will afterwards in most states

Front 62

[Variations to Testate Distributions - Outside events]

What is the NY rule for extrinsic documents?

Back 62

-NY does NOT recognize incorporation by reference -- everything must be on the face of the will!

Front 63

[Variations to Testate Distributions - Outside events]

What are actions of independent significance, and are they recognized in NY?

Back 63

-Where laungauage in the will makes general references to "automobile," so long as lifetime changes to the things have independent significance, the beneficiary takes the new object

EXCEPTION: contents of a container that contains TITLE documents can only be transferred by operation of law

Front 64

[Changes in distribution of testamentary gifts - Gift classifications]

What are the TYPES of devises?

Back 64

-Specific devise
-Demonstrative legacy
-General legacy
-Residuary
-Intestate

Front 65

[Changes in distribution of testamentary gifts - Gift classifications]

What type of devise is "my car"?

Back 65

-It's SPECIFIC b/c wording only takes effect at death of T

Front 66

[Changes in distribution of testamentary gifts - Gift classifications]

What is a demonstrative legacy?

Back 66

-Gift of $ with funding instructions

Front 67

[Changes in distribution of testamentary gifts - Gift classifications]

What is a general legacy?

Back 67

-Plain gift of $

Front 68

[Changes in distribution of testamentary gifts - Abatement]

What result if T's estate doesn't have enough $ to pay off all the devises made?

Back 68

-Abate (Abatement) gifts from lesser-important devises

Front 69

[Changes in distribution of testamentary gifts - Abatement]

What is the order of abatement, absent a will provision otherwise?

Back 69

Take out Devises to:
-Intestate
-Residuary
-General << abated pro-rata
-Demonstrative << abated pro-rata
-Specific
-Items that qualify for estate tax marital deduction

Front 70

[Changes in distribution of testamentary gifts - Ademption]

What type of devises are adeemed? What is ademption?

Back 70

-Only specific gifts
-Where specific gifts FAIL because the specific property no longer exists

Front 71

[Changes in distribution of testamentary gifts - Ademption]

Why don't demonstrative gifts adeem? ****

Back 71

-Because if there no cash available from the specific source listed, they turn into a general legacy *other assets will be sold to satisfy the demonstrative legacy*

Front 72

[Changes in distribution of testamentary gifts - Ademption]

What are NY's 3 exceptions from ademption for specific devises?

Back 72

-UNPAID insurance to pay for the earlier destruction of the specific gift

-EXECUTORY CONTRACT: T dies when sale pending on sale of specific gift (beneficiary gets K money)

-Specific property sold by a guardian or conservator while T is incompetent, to the extent $$ can be traced back

Front 73

[Changes in distribution of testamentary gifts - Specific gifts of encumbered property]

Effect of mortgage on devise of real property

Back 73

-The beneficiary TAKES subject to the mortgage (the lien is NOT exonerated)
-UNLESS the will specifically provides otherwise

Front 74

[Changes in distribution of testimentary gifts - Specific gifts of encumbered property]

Is encumbered property (mortgaged) property entitled to be unencumbered by $ from the residuary IF THE T specifically says to cover the debts of the estate?

Back 74

-STILL not enough -- can't say generally to cover debts of estate - have to say to re-pay mortgage specifically

Front 75

[Changes in distribution of testimentary gifts - Bequests of stock]

3 rules for the ademption (failure) of gifts of stock

Back 75

-Gifts of CLOSELY HELD CORP stock, EVEN IF THE WORD "MY" IS NOT USED, are treated as a SPECIFC DEVISE

-If stock is a SPECIFIC DEVISE (ie -- MY stock in PPG) or stock in a CLOSELY HELD CORP, then and shares are traded/exchanged, THEN THE SHARES ADEEM (FAIL)

-If stock is a DEMONSTRATIVE or GENERAL LEGACY (ie -- I give XXX stock), then shares DO NOT ADEEM (fail) b/c *other assets will be sold to satisfy the legacy*

Front 76

[Changes in distribution of testimentary gifts - Bequests of stock]

Effect of increase or decrease in number of stocks due to splits and mergers?

Back 76

If stock is a ANY TYPE OF DEVISE, then beneficiary DOES GET BENEFIT of stock MERGERS and SPLITS (change in form, not substance - EVEN IF SPECIFIC DEVISE -- just ignore the "my")

Front 77

[Non-probate Assets]

What is the probate estate? What therefore are non-probate assets?

Back 77

Probate estate: Property that T owned solely in his name at the time of his death, which passes by will or intestacy

Non-probate assets: Interests that are NOT subject to disposition under the will or intestacy

Front 78

[Non-probate Assets]

What are the 4 categories of non-probate assets?

Back 78

-Property that passe by ROS
-Property passing to K to persons OTHER THAN the decednt himself or decedent's estate (life insurece with named beneficiary other than self or estate)
-Property that passes by trust
-Property owned by decedent in a power-of-appointment

Front 79

[Elective Share Statute - Generally]

What is the purpose of the elective share?

Back 79

-Can't screw over spouse in death

Front 80

[Elective Share Statute - Generally]

What is the NY amount of the spouse's elective share?

Back 80

-GREATER of $50K or 1/3 the estate

Front 81

[Elective Share Statute - Generally]

Who 'loses out" if there's not enough to pay out the elective estate?

Back 81

-The other beneficiaries contribute pro rata

Front 82

[Elective Share Statute - Generally]

What is the rule of thumb for satisfying the elective estate when the entire estate passes by intestacy?

Back 82

-The surviving spouse always takes, at least $50K + 1/2 the balance under intestacy, so that covers the elective estate UNLESS "testamentary substitutes" are involved

Front 83

[Elective Share Statute - Testimentary Substitutes]

What are testamentary substitutes, and why is recognizing them important for calculating a spouse's elective share?

Back 83

-Testamentary substitutes are the non-probate-able assets
-They are considered because otherwise a spouse would be able to AVOID the elective estate by passing everything via NON-probate assets

Front 84

[Elective Share Statute - Testamentary Substitutes]

What is the term for the group of assets that are evaluated for purposes of calculating the elective share?

Back 84

-Calcuated out of the "Elective share estate", which consists of BOTH the probate estate AND the testamentary substitutes

Front 85

[Elective Share Statute - Testamentary Substitutes]

List of the SEVEN testamentary substitutes

Back 85

*TS LEG UP

-Totten trusts
-Survivorship estates (JT ROS, Joint bank accts)
-Lifetime transfers w/ strings attached (where T retains power to revoke/name new beneficiaries)
-Employee pension/profit-sharing, and deffered compensation plans (only ONE-HALF of this)
-Gifts made w/i 1 year of death in excess of $13K (or in fear of impending death)
-US gov't bonds
-Powers of Appointment

RULE OF THUMB: generally, if the T has some sort of interest in the property, it is a Testamentary Substitute!

Front 86

[Elective Share Statute - Testamentary Substitutes]

List 6 NON-testamentary substitutes

Back 86

-Life Insurance
-One-half of employee pension/profit-sharing, and deffered compensation plans
-Gifts <$13K w/i 1 year of death
-Pre-marriage irrevocable transfers
-Irrevocable transfer made >1 year before death
-Irrevocable transfers made DURING the marriage


RULE OF THUMB: generally, if the T does NOT have some sort of interest in the property, it is NOT a Testamentary Substitute! (with the exception of life insurance)

!!!!!********REMEMBER: LIFE INSURANCE IS NOT A Testamentary Substitute = NOT ADDED INTO THE ELECTIVE ESTATE!!!

Front 87

[Elective Share Statute - Testamentary Substitutes] ******

3 specific rules for survivorship estates that are NOT 100% included as Testamentary Substitutes in calculating the total elective estate (from which the greater of $50K or 1/3 is the spouse's elective share)

Back 87

-For survivorship estates (JT ROS) created POST-MARRIAGE b/w the T and a 3rd party, the surviving spouse has BURDEN of proving the amount of CONSIDERATION FURNISHED (amount the decedent contributed)

-For survivorship estates (JT ROS) created PRE-MARRIAGE b/w T and a 3rd party, the surviving spouse has BURDEN of proving the amount of CONSIDERATION FURNISHED (amount the decedent contributed) UP TO A MAXIMUM OF 1/2 the value of the JTROS

-For survivorship estates (JT ROS, T in entirety) involving only the T and the surviving spouse, only 1/2 is considered a Testamentary Substitute, which goes towards the whole elective estate

Front 88

[Elective Share Statute - Testamentary Substitutes]

Steps for calculating a surviving spouse's NET ELECTIVE SHARE?

Back 88

-Add the net testamentary estate (all intestacy and by-will transfers) TO Testamentary Substitutes = total elective ESTATE

-1/3 of the total elective estate (or $50K, whichever is larger) = Elective SHARE

-Subtract the amount that the spouse ACTUALLY TAKES under the will or under a Testamentary Substitute (remember b/w spouses, only subtract 1/2 of a JTROS!) = NET ELECTIVE SHARE

NOTE, if surviving spouse's net elective share is NEGATIVE, then she has NO RIGHT OF ELECTION

Front 89

[Elective Share Statute - Testamentary Substitutes]

If a surviving spouse IS OWED a net elective share, how to reduce the OTHER bequests?

Back 89

[(Net elective share) / (Add up all bequests that the surviving spouse is NOT receiving)] = percentage to reduce ALL other bequests by -- i.e. all beneficiaries contribute pro rata (just say this if you forget how to do the calculations)

**See p. 70 example

Front 90

[Elective Share Statute - Elective share trusts do NOT satisfy the surviving spouse's right of election]

What is the effect of a will that contains an "elective share trust," but where the testator dies after 9/1/94 (the date in NY law where the "elective share trust" will no longer be available to extinguish a spouse's right to an elective share).

Back 90

-Read the trust as though no life estate in the surviving spouse, AND "ACCELERATE THE REMAINDER" (use this language)
-In effect, READ THE life estate out of the will, pretend she's getting NONE OF IT, and calculate her elective share from there

Front 91

[Elective Share Statute - Multi-jur problems]

What relationship to NY must a surviving spouse or decedent have for a surviving spouse to have have a right to an elective share?

Back 91

-The DECEDENT must be domiciled in NY at the time of his death for the SURVIVING SPOUSE to have a right of election
(except that real property in NY AND A WILL PROVISION SO ALLOWING provides for a surviving spouse to get her elective share of it, even if the decedent isn't a NY domiciliary)

Front 92

[Elective Share Statute - Exempt property]

What is the definition of "exempt property" for calculating an elective share?

Back 92

-It's property that the surviving spouse GETS OFF THE TOP, BEFORE calculating his/her elective share

Front 93

[Elective Share Statute - Exempt property]

What are the 5 categories and amounts of exempt property?

Back 93

-$15K in cars
-$10K in furniture/appliances
-$15K in cash
-$15K in animals/farm equip
-$1K in books/pictures/entertainment stuff

Front 94

[Elective Share Statute - Exempt property]

If faced with an elective share question on the bar exam, what line should you throw in re: exempt property

Back 94

-"Assuming that none of this property is subject to being exempt personal property set-aside before calculating the surviving spouse's elective share ..."

Front 95

[Elective Share Statute - DISQUALIFICATION from taking elective share]

What are the situations under which a spouse will NOT BE ABLE TO TAKE THE ELECTIVE SHARE!?!

Back 95

***DISMAL
-(final) Divorce decree
-Invalid divorce (non-finalized divorce) PROCURED BY THE SURVIVING SPOUSE (not the decedent)
-(final) Separation decree (NOT just an agreement unless specified otherwise) RENDERED AGAINST THE SURVIVING SPOUSE (not against the decedent)
-Void Marriage (NOT JUST A VOIDABLE marriage)
-Abandonment/Lack of support BY THE SURVIVING SPOUSE

Front 96

[Powers of Appointment - Definitions]

What is a power of appointment? AND WHAT IS ITS PURPOSE?

Back 96

-Authority created in a donee that enables the donee to designate persons who are to take the donor's property, and establishes how those persons are to take the property

-Also a SEPARATE person to evaluate situations in the future to decide whether to distribute property

Front 97

[Powers of Appointment - Definitions]

What are takers in default?

Back 97

-Person who take the property if the donee fails to exercise the powers appropriately

Front 98

[Powers of Appointment - Classification of powers]

What are the 4 classifications of POAs?

Back 98

-General POAs - Where donee (person who is given power to use POA) can appoint TO HERSELF, her own creditor, or her OWN ESTATE

-Special POA (ie- limited power of appointment): Where donee (person who is given power to use POA) CANNOT appoint to herself -- there's a LIMITED CLASS of persons to whom the donee can appoint to

-Presently exercisable POA - the donee can exercise in her lifetime

-Testamentary POA - Donee can appoint only by will

Front 99

[Powers of Appointment - Classification of powers]

What effect if a POA donee sort-of exercises a Testimentary POA by only making a general will with a residuary, but does NOT specifically mention is exercising the earlier-donor's POA?

Back 99

-ALL will provisions with a residuary are ASSUMED to be exercizing the POA unless the original POA creator (the donor) does not allow for this

Front 100

[Powers of Appointment - And the Elective Share]

Which types of POAs serve as testamentary substitutes that must be added into the elective estate for the purposes of calculating a surviving spouse's elective share?

Back 100

-ONLY General Presently exercisable POAs (Where donee can appoint to herself and take at any time)

IF THIS KIND OF POA IS IN A WILL, ADD The VALUE OF THE POA WHEN CALCULATING THE ELECTIVE SHARE (and subtract it out if the POA is given to the surviving spouse)

Front 101

[Powers of Appointment - Donee's creditor's rights to the donor's property]

Which types of POAs can a donee's creditors reach?

Back 101

-General Presently exercisable POAs (Where donee can appoint to herself and take at any time)

-General Testamentary POAs where donee exercises it in favor of her estate

Front 102

[Powers of Appointment and the RAP - Generally]

If faced with a POA & RAP question, what three questions should you answer to maximize points?

Back 102

-What type of POA is this?
-Is the POA itself valid?
-Are the interests created by the POA valid?

Front 103

[Powers of Appointment and the RAP - Testamentary-Remainder interests]

What is the test for when the TESTAMENTARY POA itself is valid?

Back 103

-Tests for POA validity: Special OR General Testamentary POA must be certain to be EXERCIZED w/i LIB + 21 years (this is never a problem)

-ALWAYS VALID when the POA donee is ALIVE at the time the POA is created

Front 104

[Powers of Appointment and the RAP - Testamentary-Remainder interests]

What is the test for the validity of the TESTAMENTARY-REMAINDER INTERESTS created by a POA?

Back 104

-For GENERAL TESTAMENTARY POAs (where donee can appoint to anyone by will) --and-- SPECIAL POAs (where donee has to appoint to a certain class), measure the RAP person FROM THE DATE THE POA IS CREATED!!!

Front 105

[Powers of Appointment and the RAP - Testamentary-Remainder interests]

What special RAP reform rule ONLY applies to POAs, and MUST be analyzed in an essay?

Back 105

-Wait and see rule (look to when the POA donee exercises the power, are ALL the POA recipients old enough so that they will take w/i 21 years after the LIB?)

Front 106

[Powers of Appointment and the RAP - Testamentary-Remainder interests]

EVEN IF a POA is otherwise void under the RAP, what 'normal' RAP reform may save it under NY law?

Back 106

-Reduce the age contingency down to 21 years

Front 107

[Powers of Appointment and the RAP - General-Presently-exercisable-Income interests]

What is the test for when the GENERAL PRESENTLY-EXERCISABLE POA itself is valid?

Back 107

-The presently-exercisable POA must be certain to BE ACQUIRED w/i LIB + 21 Years

-ALWAYS VALID when the POA donee is ALIVE at the time the POA is created

Front 108

[Powers of Appointment and the RAP - General-Presently-exercisable-Income interests]

What is the test for the validity of the GENERAL PRESENTLY-EXERCISABLE INCOME INTERESTS created by a POA?

Back 108

-For GENERAL PRESENTLY-EXERCISABLE POAs, the RAP is measured from the date the instrument EXERCISES the power -- when the donee DIES!!! (not from the date of the instrument's creation)

Front 109

[Powers of Appointment and the RAP - General-Presently-exercizable-Income interests]

When does a general-Presently-exercisable-Income interest violate NY's suspension rule?

Back 109

-STATE RULE: Under NY suspesion rule, all income interests must be able, together, to convey fee simple absolute w/i LIB + 21 years

-General rule of thumb: an income interest build-upon another income interest IS INVALID b/c NY's statutory spendthrift rule.

Front 110

[Powers of Appointment and the RAP - General-Presently-exercisable-Income interests]

What to do with the remainderman's interest?

Back 110

-When an income interest is found to be void, the remainder interest is bypassed, and it is accellerated to the remainderman

Front 111

[Powers of Appointment and the RAP] !!!!*****!!!!!!!!

ABOVE ALL ELSE, what 6 things should be stated for any POA/RAP problem?

Back 111

-Identify the type of POA
-Give the RAP rule (vest w/i LIB + 21 years)
-Identify the LIB, and run with it
-Apply NY reform statute (reduces years down to 21 years if necessary)
-Give suspension rule (income interests must be able, togehter, to convey in fee simple absolute w/i LIB + 21 years)
-If there is an income interest in an unborn beneficiary, state that interest is VOID

Front 112

[Will Contests - Mistake]

What is the rule for interpreting a wills' provisions?

Back 112

-The plain meaning of the will will not be overturned by extrinsic evidence.

Front 113

[Will Contests - Ambiguity]

What is latent ambiguity?

Back 113

-It's when an error is not evident by merely looking at the face of the will

Front 114

[Will Contests - Ambiguity]

What type of evidence will be admissible if there is latent ambiguity?

Back 114

-CAN use extrinsic evidence to show the meaning T's words (including what was said previously, T's habits, who T was around, and T's statements to his atty)
-But if the evidence doesn't cur the ambiguity, the GIFT FAILS

Front 115

[Will Contests - Ambiguity]

What is patent ambiguity?

Back 115

-An obvious error on the face of the will

Front 116

[Will Contests - Ambiguity]

What type of evidence will be admissible if there is patent ambiguity?

Back 116

-CAN ALSO use extrinsic evidence to show the meaning T's words, BUT CANNOT USE T's DECLARATIONS TO THIRD PARIES (except atty)

Front 117

[Will Contests - Contract to make a Will]

What is a joint will?

Back 117

-Will of 2 people in 1 document

Front 118

[Will Contests - Contract to make a Will]

When with a K to make or NOT REVOKE a will be valid?

Back 118

-If a joint will has an EXPRESS STATEMENT OF INTENT that the will's provisions are intended to constitute a K b/w the parties

i.e. -- just b/c it's a joint will, the court will not force one party to not be able to revoke his will later

Front 119

[Will Contests - Contract to make a Will]

What is the remedy when a express will K to not revoke a will IS VIOLATED, and second person makes a new will anyway?

Back 119

-The NEW (K-violating) will is probated
-BUT A CONSTRUCTIVE TRUST is imposed in favor of the original intended beneficiaries in will #1 (made to account for unjust enrichment)

Front 120

[Will Contests - Testimentary Capacity]

What 4 capacities must a T have to make a will?

Back 120

-Plan (nature of act)
-Property (what you own)
-Persons (who are natural object of bounty)
-Process (understand the dispositions being made)


NOTE: capacity to make a will requires LESS capacity than required for any other legal instrument (during a LUCID INTERVAL)

Front 121

[Will Contests - Testamentary Capacity]

What's the definition of an insane delusion

Back 121

-Persistent belief in supposed facts that are against all evidence

Front 122

[Will Contests - Testamentary Capacity]

What 3 elements must a will contestor prove to show undue influence?

Back 122

-Existence of influence
-Influence overcame power of the mind of the T
-Gift in the will would not have been made absent that influence

Front 123

[Will Contests - Testamentary Capacity]

What 3 situations are usually INSUFFICIENT to show undue influence

Back 123

-Opportunity
-Susceptibility
-Unequal dispositions

Front 124

[Will Contests - Testamentary Capacity]

When will there be an AUTOMATIC INFERENCE of undue influence?

Back 124

-T made a gift to a person in a confidential relationship AND
-That person was active in drafting the will

Front 125

[Will Contests - Testamentary Capacity]

What is the NY test for when a bequest to an atty is made, even if no objection is made?

Back 125

-NY imposes AUTOMATIC scrutiny to when a bequest is made to an atty called "PUTNAM" scrutiny

Front 126

[Will Contests - Testamentary Capacity]

What is the NY statutory requirement for when a T names the atty as the will's executor?

Back 126

-Att JUST give T a WRITTEN disclosure stating that:
---Any person can be an executor,
---Executor gets statutory commission, AND
---Atty also is entitled to legal fees for representing the estate
-T must SIGN the statements in front of 2 witnesses

Front 127

[Will Contests - Testamentary Capacity]

What effect if the atty fails to have T sign atty-as-executor statements?

Back 127

-Atty only gets 1/2 statutory commission

Front 128

[Will Contests - No-Contest Clauses]

What is a will no-contest clause?

Back 128

-A clause that states if anyone contests the will, will take NOTHING under the will

Front 129

[Will Contests - No-Contest Clauses]

What is the NY rule toward No-contest clauses?

Back 129

-GETS FULL EFFECT, even if the person had cause to challenge the probate of the will!!!

Front 130

[Will Contests - No-Contest Clauses]

What are the exceptions to giving No-contest clauses full effect?

Back 130

-Claims for forgery
-Claims that this will was revoked by an earlier will
-Claims filed on behalf of a child/incompetent (claims by a guardian)
-Claims re: construing ambiguity
-Claims re: jurisdiction of the court

Front 131

[Powers of Atty]

What is a power of atty generally?

Back 131

-Allows for an agent (called an atty-in-fact) to act on behalf of a grantor

Front 132

[Powers of Atty]

What is a NON-durable power of atty? what about a durable power of atty?

Back 132

-It's a power of atty that is REVOKED by operation of law on the grantor's death or incapacity
-A durable power of atty then CONTINUES THROUGH a grantor's incapacity.

Front 133

[Health Care Proxies]

What is a health care proxy?

Back 133

-It's a type of durable power of atty that does NOT become effective until the grantor becomes incapacitated.

Front 134

[Health Care Proxies]

WHat are the NY requirements for a durable power of atty?

Back 134

Must be:
-In writing
-State decsion is made free from duress
-Signed by the grantor or another at his direction, and
-Witnessed by at least two adults

Front 135

[Living Wills]

What is a living will?

Back 135

-States and individual's deires to remain on life support/get pain treatment when otherwise terminally ill

NOTE: NY court of appeals has a patient's right to decline treatment is guaronteed by the COMMON LAW