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32 Cards in this Set
- Front
- Back
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GIFTS
ACE and AID |
must intend to make a present irrevocable transfer of ownership
ACE delivery so that donor immediately surrenders control A – ACTUAL - pass title immediately C – CONSTRUCTIVE - Keys to safe deposit box E – ESCROW AID needs clear and convincing evidence (no presumption of a gift) A – ACCEPTANCE. I – donative INTENT D – DELIVERY *NY will not attempt to salvage gift that fails AID |
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Gifts Causa Mortis
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(NEVER for real property)
AID still required. Interest Vests when donor dies from contemplated peril or illness. A GCM is revoked 1. by donor at any time before death 2. if doneee predeceases the donor 3. if donor recovers or dies not from contemplated peril. |
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TOTTEN TRUSTS
stock account - “pay on death” or “transfer on death” |
Bank account in trust for donee. But funds belong to depositor until death.
To revoke: 1. withdraw all funds and close 2. change beneficiary (signed acknowledged like a deed) 3. specific language in depositor's will stating a. the account is in trust b. name of beneficiary c. name of financial institution |
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Joint Bank Account
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“to A or B or the survivor”
Joint bank or stock accounts raise rebuttable presumption of an immediate vested AID gift of 50% each (moity) for each deposit.* Can be rebutted by showing it was opened for convenice (bank records say: “for the convenience of the depositor”) Will cannot revoke it passes to survivor by operation of law. *bank is liable for paying out too much if it received notice. |
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INTESTATE SUCCESSION
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NY law of intestacy attempts to distribute as decedent probably would have
1. surviving spouse and children (first $50k plus ½ balance, Children split the rest) 2. parents 3. siblings and issues of siblings 4. grandparent and issue as a class (aunts uncles cousins) *treat multiple residuary beneficiaries |
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JOINT WILL
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Wills made by 2 people with joint provisions that act as a contract with each other. Survivor is bound by the contract and third party beneficiaries can sue if they try to deviate (functions as TCUP of constructive trust)
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EXECUTING A WILL
SWEPT |
NY requires strict adherence to EPTL
S - SIGNED – by an Adult (can sign alone then acknowledge) W – in WRITING E – signed at the END by the testator P – PUBLISHED (must say it is a will to Witnesses) T – TWO (or 3) witnesses sign within 30 days of each other in T's presence* *witnesses sign affidavit do not have to testify unless execution is challenged (court can accept only 1 if the other is dead) 1. NY recognized non-cupative (oral) wills and holographic will by soldier (or helper) in a foreign country or about to embark. (valid for 1 year upon discharge). Any bequests that appear AFTER the signature are void. 2. an old will (30y NY 20y FRE) is presumed valid unless wierdness |
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INTERESTED WITNESSES
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If a necessary witness' bequest is void.
If they get an intestate distribution, they get LESSER of it or bequest. A necessary will witness is not disqualified from: 1. taking under a subsequent codicil 2. acting as the named trustee or executor* *drafting atty must be in separate doc stating T knew he could choose someone else. Executor or trustee cannot be exonerated from negligence. |
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INCORPORATION by REFERENCE
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1. In NY an unattested doc does not become part of a will even if referred to unless it was SWEPT
2. A Pour Over Provision is a will that flows into an trust. 3. Trust must be SWEPT prior to or contemporaneously. 4. subsequent trust terms are ignored unless SWEPT |
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AMENDING a will
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Codicil must be SWEPT - a will+codicil are a single instrument
Execution of a codicil may effect: 1. advancements 2. after-born children 3. divorced surviving spouse EPTL says that a codicil CANNOT revoke a will (can revoke a codicil) |
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REVOKING A WILL
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(no partial revocation)
1. New will impliedly revokes old will and all codicils 2. Testator (can be alone) destroying the ENTIRE WILL by physical act (burning, tearing, crossing out signature) A third person can destroy the will at the request of T, but must have 2 witnesses (4 people in the room) |
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A will can be ALTERED by
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1. a subsequent codicil or will.
2. subsequent events in T's life after the will's execution (MAD CAR CLAW) 3. a document signed by and acknowledged like a deed that uses precise, “wholly inconsistent” language |
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LOST WILL
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If will cannot be found upon death, a “VERY STRONG” presumption arises that it was destroyed.
To rebut show: 1. it was duly SWEPT 2. it was probably not destroyed 3. establish contents by a. testimony of any 2 people who read the will b. an un-executed copy of the will (a copy of lost will may be probated w/o any witnesses to corroborate its content). |
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FOREIGN WILLS
SWEDEN |
A written foreign will of NY domicile disposing of personal property or a non-domicile disposing of real property in NY is admissible to probate in NY if:
SWEDEN S – signed by T W – in WRITING (non-cupitive will ONLY for military in combat zone) AND it is valid in ONE of the following: E – where it was EXECUTED D – T's domicile at DEATH E – T's domicile at time EXECUTED N – the laws of NY (SWEPT) |
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CONTESTING A WILL's validity
TIE |
will contest TIE up the estate
T – lack of TESTAMENTARY capacity (at time of execution) I – undue INFLUENCE or fraud (opponent has burden) E – Improper EXECUTION 1. proponent has burden to prove capacity and execution. 2. prima facie undue influence where beneficiary participates will preparation. |
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No Contest Clause
I FACED SIR |
lose bequest if you contest the will. If successfully contested, entire will is voided (not favored in NY -> strictly construed).
No Contest Clause is not breached by I FACED SIR I – INFANTS F – establish the will as a FORGERY(must have probable cause) A – demanding an ACCOUNTING or questioning conduct fiduciary. A – ATTORNEY GENERAL for charity beneficiaries C – petition CONSTRUCTION of a clause* E – spouse's right of ELECTION D – pre-trial DISCOVERY of: a. the SWEPT witnesses, b. the proponent of the will c. executor named in the will d. attorney who prepared the will e. ANY PERSON (need special circumstances, must apply) S – SUBJECT MATTER JURISDICTION or jurisdiction in probating T's will. I – mentally INCAPACITATED with appointed guardian R – REVOKED will (with probable cause) *atty-client privilege can be lifted unless the conversation with T would disgrace T's memory. It is against public policy to encourage a divorce in a testamentary bequest. |
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EVENTS DURING TESTATOR'S LIFE EFFECTING THE WILL
MAD CAR LAW |
Once a will or codicil has been validly SWEPT, the following subsequent events in T's life may effect the distribution:
M – MARRIAGE of the testator A – AFTER-BORN children D – DIVORCE C – CY PRES of charitable bequests A – ADVANCEMENT of a bequest R – RENUNCIATION by a beneficiary L – LAPSED legacies (but always consider NY’s Anti-Lapse Statute) A – ADEMPTION or abatement W – WRONGFULLY killing the testator |
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SURVIVING SPOUSE'S RIGHT OF ELECTION
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A spouse may wave right in pre-nup, nuptial, or separation agreement. MUST be acknowledged as a deed.
surviving spouse (NY) is guaranteed up to $92,500 of exempt property, + the greater of $50k or 1/3 of net estate. Net Estate* = all property (minus) exempt family property (minus) administrative expenses an debts *for purposes of determining the value of surviving spouse's share, the decedent's NET estate or intestate estate is increased by the value of any NON-probate assets passing on the decedent's death, these include testamentary substitutes passing to anyone including those passing to the surviving spouse. Intestate share is $50k + ½ of the rest |
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Testamentary Substitutes
BRAAG IT, J.P. |
If you can BRAAG IT, J.P., you’ll increase your right of election:
B – Jointly-held U.S. savings BONDS R – 50% of decedent’s RETIREMENT plan A – Shareholder AGREEMENTS post-marriage restricting sale or testamentary disposition of T's closely-held stock A – ANNUITY payments surviving decedent’s death G – GIFTS causa mortis I – INTER VIVOS - gifts over $13,000 within 1 year of death (not waived by spouse) T – Pre or post-marriage TOTTEN trust bank accounts J – Post-marriage JOINTLY-HELD bank/stock accounts, property, but only to the extent that consideration was furnished by the decedent P – PAY on death securities *LIFE INSURANCE ON T's life is NOT a testamentary subsititute. |
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Calculating Net Estate and Elective Share
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Take the “net probate estate”
ADD all BRAAGIT JP testamentary substitutes, including any passing to surviving spouse DIVIDE total figure by 1/3 to determine the surviving spouses elected share From this amount SUBTRACT the value of any testamentary substitutes AND any testate or intestate property passing to the surviving spouse, the resulting figure is the surviving spouses “net elective share” to which the other recipients of estate assets and testamentary substitutes will contribute proportionately. Not more than 2 year from D's death. Surrogate has discretion to allow a late right of election up to 1 year after letters were issued. |
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A – AFTER BORN CHILDREN
(includes child in utero) |
1. can be completely disinherited if born before execution
2. if born after can effect will a. child gets an intestate share unless otherwise provided for in will b. if T had children who got nothing, child gets nothing c. if T made an unhappy de minimus bequest, child gets intestate share d. if other children got something, child shares “ratably” |
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NON-MARITAL children
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*absent contrary language, treated exactly the same
afte-born child gets intestate share as any after-born can get wrongful death action from: 1. birth mother and her heirs 2. father and the father's paternal heirs but only if a. paternity order b. acknowledgment of paternity c. clear and convincing evidence, e.g: i. DNA test anytime ii.father openly and notoriously acknowledged |
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DIVORCE
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pending divorce, equitable distribution dies with testator, right of election lives.
divorce, annulment, dissolution or, separation judgment revokes TRIPJAW interest of ex. T – TOTTEN TRUST R – REVOKEABLE lifetime trust I – life INSURANCE policies* P – PENSION plans * J – JOINT bank account* A – power of ATTORNEY naming spouse W – T's WILL *Bank, Insurance company, or pension plan is NOT liable without notice. |
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ADVANCEMENTS
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Must be in writing executed with delivery.
Oral advancement is treated as inter-vivos gift New will or codicil extinguishes pre-existing advancement. |
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LAPSED LEGACIES and ANTI-LAPSE
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A bequest in a will will lapse (fail) if a named beneficiary uses I DROPS
I – breaches an IN TERROREM (no-contest) clause in the will D – former spouse was in a DADS decree R – RENOUNCES within 9 months O – dies within ONE HUNDRED twenty hours (5 days) – if bequest requires beneficiary to survive T. If not, its treated as if beneficiary died first. Right of survivorship in realty severs the estate. P – PRE-deceases the testator. S – SLAYER rule – beneficiary slays the testator. * in all of the above, the beneficiary is deemed to have immediately pre-deceased the testator. ANTI-LAPSE Issue or siblings bequests DO NOT LAPSE from I DROPS, instead bequest drops down to the issue of beneficiary. No anti-lapse if will has requirement of survival or specific contrary language in the will. |
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Per Stirpes and Distribution by Representation
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Per Stirpes distribution used on pre 9/1/1992 wills, divides generationally (grandchildren take by their parents' share)
By representation is more equitable (use for after Sept. 1, 1992 and intestate) grandchildren take evenly as a class. Today per stripes is used in wills only if T specifically directs it to be used. |
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RENUNCIATION
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(aka disclaimer) to avoid creditors
1. beneficiary can refuse all or part of survivorship interest (life insurance policy, a life estate, a will, intestac, JT, TE, or JBA) 2. cannot revoke once accepted 3. must be filed with surrogate and estate rep. Within 9 months of death with affidavit that renouncing party hasn't received consideration in exchange. *treat renouncing party as pre-deceased |
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Cy Pres
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Absent of a gift over provision, Cy-Pres prevents a charitable bequest from lapsing if the named charity no longer exists.
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ADEMPTION
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1. If property specifically described in the will is lost, destroyed, stolen, or conveyed (gift or sale) during T's life, it adeems. The specific legatee receives the proceeds (or what's left).
2. In NY no “equitable exoneration” of debt. Benefciary takes the property “subject to” encumbrances, but does not personally take responsibility (estate remains liable). 3. Does not apply to general legacies (specific amounts of money) or demonstrative legacies (bequests from identified source – eg $20k of my IBM stock to B) |
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ABATEMENT
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Abatement occurs when testator makes too many bequest which when added together exceed T's NET ESTATE available for distribution.
Abatement is the method applied when there are insufficient estate assets to pay off all of T's bequests after T's estate has paid off debts and admin expenses. Legacies Adeem in the following order: 1. intestate distributees 2. legatees 3. general legacy (demonstrative if funds have run out) 4. specific and (viable) demonstrative 5. disposition to surviving spouse |
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S – Slayer Rule
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Wrongfully killing the testator
NY – Joint property treated as TC. Slayer will not forfeit from SIN S – Self Defense I – Insanity N – Negligent Homicide (not reckless) |
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DIE rights are defeated by DAVIS:
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D – Wrongful DEATH proceeds
I – INTESTATE share E – Right of ELECTION D – DAD Decree of DIVORCE ANNULMENT DISSOLUTION* A – ABANDONEMENT also a parent who: a. abandons a child b. fails to support child under age 21 c. had parental rights terminated by MA&PA V – VOID – never took place in eyes of law. 1. bigamy 2. incestuous 3. 13 or younger when married I – earlier obtained an INVALID DAD decree outside NY (ex parte divorce) S – SEPARATION judgment based surviving spouse’s fault *Separation, Nuptial, or Pre-Nuptial AGREEMENT has no effect on a will or DIE without acknowledged precise language. |
