Will 3

Front 1

when is class closing ?

Back 1

at the time a distribution to the class must be made

Front 2

when is Outright gift by will?

Back 2

the class closes at T’s death

Front 3

what does a child in gestation at time of T’s death is treated?

Back 3

as if alive

Front 4

if there is a gift of a life estate or an income interest with a remainder to a “class of beneficiaries”, when does the class closed?

Back 4

the class closes at death of life tenant or the income beneficiary

Front 5

does the “adopted out” child take as beneficiary of a class gift made in the will of a member of the child’s natural family?

Back 5

no

Front 6

what's Joint will?

Back 6

2 persons on one piece of paper

Front 7

how can K to make a will or not to revoke a will be established ?

Back 7

only by an express statement in the will that its provisions are intended to constitute a K between the parties

Front 8

If a will is contractual & the survivor breaches the k by writing a will w/inconsistent provisions, what's the result?

Back 8

a. Probate the new will, even though it was written in breach of K; and
b. Impose constructive trust in favor of the intended beneficiaries of K

Front 9

when can A contractual will can be revoked ?how?

Back 9

by agreement of the parties while they are both aliveby agreement of the parties while they are both alive

Front 10

can estate revoke contractual will on behalf of the decedent spouse?

Back 10

no

Front 11

what's NY –“Negative bequest” effect?

Back 11

Statute says that words of disinheritance in the will are given full effect – treat the disinherited person as if they predeceased T

Front 12

but if the disinherited person has issue, such issues may be able to take the share of the deemed predeceased via the anti-lapse statute?

Back 12

yes, only if the disinherited per se was deemed predeceased

Front 13

what's the Purpose of the Elective Share Statute?

Back 13

protect surviving spouses against disinheritance, by giving them entitlement to minimum share of decedent’s estate

Front 14

what's the Amount of the elective share ?

Back 14

the greater of 50K or 1/3 of the net estate

Front 15

what's net estate?

Back 15

after payment of debts, but before payment of estate taxes

Front 16

what's the Actual amount entitled to a spouse?

Back 16

elective share amount minus value of outright dispositions passing to spouse under the will or as testamentary substitutes

Front 17

the elective share always allows the surviving spouse to get a larger share of the estate of the deceased spouse than in the case of intestacy， what's the exception？

Back 17

unless the Testamentary substitutes apply.

Front 18

In any question involving a surviving spouse， what's next?

Back 18

there’s an exempt personal property set-aside – these items ‘come off the top’

Front 19

what's exemption?

Back 19

is in addition to property passing to the spouse by will, intestate share, or elective share

Front 20

when is Right of election is available ?

Back 20

available ONLY IF deceased spouse was NY domiciliary at the time of death

Front 21

what's the exception of domicile in ny requirement?

Back 21

if T expressly states in his will to have disposition of his property in NY governed by laws of NY (e.g., a NY lawyer writes his will)

Front 22

if a deceased spouse was ny domiciliary, where does it apply?

Back 22

Applies to all of the decedent’s real & personal property wherever located.

Front 23

what's Testamentary substitute?

Back 23

almost all nonprobate transfers are TS

Front 24

what's leg up in testamentary substitutes? ts needs a leg up

Back 24

a. Totten Trust bank accounts
b. Survivorship estates joint tenancies, joint & survivor bank accounts created after 9/1/66
c. Lifetime transfers with strings attached
d. Gifts – in excess of 12K (the gift tax annual exclusion) made within 1 year of death; Also, gifts causa mortis (gifts made in fear of impending death) even within 12K exclusion
e. Powers of appointment
f. United States government bonds & other P.O.D. (“pay on death”) arrangements
g. Employee pension, profit-sharing, deferred compensation plans

Front 25

what's the power of appointment under the testamentary substitute?

Back 25

property over which decedent held a presently exercisable general power of appointment (but NOT property over which he held a general testamentary power)

Front 26

what's Lifetime transfers with strings attached?

Back 26

i) transfers with a retained power (i.e. revocable trusts) AND (ii) irrevocable transfer with retained life estate made on or after 9/1/92

Front 27

how does Employee pension, profit-sharing, deferred compensation plans calculated?

Back 27

IF employee designated the beneficiary on or after 9/1/92 (in any case, ONLY ½ of a Qualified Pension or profit-sharing benefits is a testamentary substitute)

Front 28

what's NOT testamentary substitutes

Back 28

do NOT affect the elective share (LOGPIT)

Front 29

the category of NOT testamentary substitutes.

Back 29

a. Life insurance – whether payable to surviving spouse or 3rd party
b. ONE-half of Qualified Pension & profit-sharing benefits – in any case, benefits in qualified person plans are not testamentary substitutes if employee named a beneficiary before 9/1/92 and did not change the beneficiary designation thereafter
c. Gifts within 12K annual exclusions – even made within 1 year of death
d. Pre-marriage irrevocable transfers
e. Irrevocable transfer made more than 1 year before death – transfers in which grantor did NOT retain power to (i) revoke, (ii) invade, (iii) consume, or (iv) dispose of principal
f. Transfers with retained life estate made BEFORE 9/1/92

Front 30

what test apply for Survivorship estate with deceased spouse & 3rd party?

Back 30

(i) “Consideration furnished” test applies

Front 31

what's “Consideration furnished” test?

Back 31

meaning that the surviving spouse has the burden of proof as to amount of decedent’s contributions to property’s acquisition (or amount of decedent’s deposits in joint bank accounts

Front 32

what's ADDED COMPLICATION?

Back 32

Survivorship estate with deceased spouse & 3rd party created more than one year before marriage

Front 33

what's added complication is raised in the rule?

Back 33

that irrevocable dispositions before marriage are not testamentary substitutes

Front 34

for Survivorship estate with deceased spouse & 3rd party created more than one year before marriage, how much is qualified as testamentary substitute ?

Back 34

(b) ONLY ½ (the other is irrevocable disposition

Front 35

what does ADDED COMPLICATION apply?what's the result?

Back 35

(c) This rule applies to joint bank accounts and certificates of deposit, etc., with third parties, to the extent that deposits were made before marriage
Under the NY law, a deposit in a joint bank account is irrevocable (i.e., a gift) as to one half of the amount deposited

Front 36

b. Survivorship estates with surviving spouse. joint tenancy, tenancy by entirety, joint bank account.what test apply?

Back 36

(i) “Consideration furnished” test does NOT apply
(ii) Instead, ½ is a testamentary substitute, regardless of which spouse furnished the consideration

Front 37

where the decedent created trust, under which the spouse enjoys income interest (and thus no outright gifts), if the spouse elects to exercise the right to elective share, what's the result?

Back 37

The spouse is deemed predeceased the testator and the remainder man’s interest will be accelerated, but the beneficiaries of the net estate under the will must contribute ratably to satisfy the elective share

Front 38

1995, W married H; 1998, W & her sister S acquired real estate, as joint tenants with right of survivorship – 1999, W & H opened joint bank account of 60K (deposit passes to survivor) – 2001, W died, leaving net probate estate of 300K – W’s will devised 75K to H, & her remaining estate 225K to S – H filed for an elective share
a. Case1: assume W-S joint tenancy property is worth 150K at W’s death – if H is able to prove that all of the funds to buy the joint tenancy property was contributed by W

Back 38

(i) 300,000 Net probate estate
(ii) + 30,000 W-H account (½ testamentary substitute)
(iii) + 150,000 W-S joint tenancy (testamentary substitute)
(iv) = 480,000 Augmented Estate
(v) 160,000 Elective share amount (1/3 of augmented estate)
(vi) – 75,000 Amount passing to H under will
(vii) – 30,000 Amount passing to H as testamentary estate
(viii) = 55,000 Net elective share to which H is entitled

Front 39

1995, W married H; 1998, W & her sister S acquired real estate, as joint tenants with right of survivorship – 1999, W & H opened joint bank account of 60K (deposit passes to survivor) – 2001, W died, leaving net probate estate of 300K – W’s will devised 75K to H, & her remaining estate 225K to S – H filed for an elective share, H cannot prove that any of the funds used to buy joint tenancy property were contributed by W, what's the result?

Back 39

(i) W-S joint tenancy (testamentary substitute) = 0
(ii) Augmented Estate = 330,000
(iii) Elective share amount = 110,000
(iv) Net elective share = 5,000

Front 40

in making up the net elective share, what's included?

Back 40

all other beneficiaries contribute pro rata (that includes (i) beneficiaries under the will, (ii) beneficiaries of testamentary substitutes, & (iii) intestate distributees)

Front 41

does This elective share rule may apply in case of intestacy?

Back 41

yes

Front 42

what's Procedural Rules Governing Election?

Back 42

1. Must be filed within 6 months after Letter (Letters Testamentary or Letters of Administration) are issued by Surrogate at start of probate proceedings, BUT NOT more than 2 YEARS after decedent’s death

Front 43

is Right of election personal to surviving spouse?

Back 43

yes.rationale is that the elective share is to protect the spouse, NOT her heirs; but, the guardian or committee of an incapacitated spouse may elect with court approval

Front 44

when what can you waive right to elective share ?

Back 44

with or without consideration, before or after marriage, as to a particular will or testamentary substitute, or as to all wills & testamentary substitutes generally

Front 45

how to waive elective share?

Back 45

Must be in writing, signed & acknowledged before a notary public

Front 46

General waiver of all rights in spouse’s estate waives what?

Back 46

the right to elective share or intestate share,BUT does NOT waive right to gifts made by spouse’s will (unless explicit waiver)

Front 47

when is elective share be eliminated?

Back 47

For estates of decedents dying before September 1, 1994, the right to an elective share could be wholly eliminated through the use of an elective share trust that gave the surviving spouse a life estate (an income interest for life), as long as at least $50K was given outright to the spouse.

Front 48

If the sum of (i) outright dispositions of at least $50K plus (ii) the principal of the trust, equaled or exceeded the one-third elective share amount, what's the result?

Back 48

then the surviving spouse had no right election

Front 49

for estates of decedents dying on or after September 1, 1994, a life estate will not satisfy the elective share entitlement. what's the result?

Back 49

As such, if the surviving spouse has the right to elective share, he/she shall be deemed predeceased the decedent with respect to the concerned life estate for the purpose of obtaining net elective share (as such the remainderman’s interest will be accelerated).

Front 50

you are given a will executed prior to September 1, 1994 that contains an elective share trust with a Testator dying on or after September 1, 1994. what's the result?

Back 50

life estates (“terminable interests”) no longer satisfy the elective share entitlement

Front 51

When Spouse Disqualified From Taking Elective Share?

Back 51

a. Divorce – final decree of divorce or annulment valid under NY law
b. Invalid divorce – surviving spouse procured, outside of NY, a divorce or annulment not recognized as valid in NY law (NOT by deceasing spouse)
c. Separation decree – final decree of separation rendered against surviving spouse (if H & W enter into a separation agreement, live apart from each other, but there’s no decree of separation, the surviving spouse is NOT disqualified from filing for an elective share)
d. Marriage void as incestuous or bigamous
e. Abandonment, Lack of support surviving spouse abandoned or refused to support deceased spouse

Front 52

does a decree of separation disqualifies the surviving spouse from filing for an elective share?

Back 52

yes

Front 53

whereas a decree of separation disqualifies the surviving spouse from disqualify the spouse from taking under the decedent’s will ?

Back 53

no

Front 54

what's the requirement for Testamentary Capacity?

Back 54

a. Understand the nature of the act he was doing (i.e., that he was signing a will)
b. Know the nature & approximate value of his property
c. Know the names and his relationship to the natural objects of his bounty (know your family members and loved ones)
d. Understand the disposition he was making

Front 55

what's undue influence?

Back 55

1. Existence of a testamentary capacity subjected to & controlled by a dominant influence or power

Front 56

what does contestant have to prove for undue influence?

Back 56

a. Existence & exertion of an influence
b. Effect of such influence was to overpower T’s mind & will
c. Product is a will (or a gift in the will) that would not have been executed BUT FOR such influence

Front 57

c. Unnatural disposition that some children take less than others or are excluded entirely,
is it sufficient for undue influence?what are others ?

Back 57

no.
a. Opportunity to exert influence (e.g. not enough that a child lived with his mother, and acted for her, held a power of attorney of her)
b. Susceptibility to influence due to illness or age (e.g. not enough that mother was old)

Front 58

where a will makes a gift to one in a confidential relationship (e.g., attorney-client, financial adviser, child who held power of attorney), & that person was active in procuring the will (e.g., draftman), there is an inference of undue influence which, if not rebutted, satisfies the contestant’s burden of proof,
who has the burden of prove?

Back 58

the beneficiary.

Front 59

− If a will makes a bequest to the drafting attorney, what does the surrogate do?

Back 59

the Surrogate makes a PUTNAM SCRUTINY, even if no objection is filed (i.e., an automatic inquiry) to determine whether the gift was voluntarily made

Front 60

− If the confidential relationship is based on longstanding friendship and social relationship b/w testator and beneficiary, what's the result?

Back 60

such relationship can support the finding that the gift was not a product of undue influence.

Front 61

4. Drafting attorney is also the executor – if testator dies after 1996 and the attorney is appointed as executor, attorney must give written disclosure to the client about what?

Back 61

a. Any person, not just attorneys, can be named executory;
b. Executors receive statutory commissions; AND
c. Attorney will also be entitled to legal fees for representing the estate

Front 62

what does client must do with acknowledgement by attorney for the pointing as executor?

Back 62

client must sign the acknowledgment with 2 witnesses (effect of failure to comply with the statute is reduction of executor’s commission by 50%)

Front 63

what's Powers of Appointment?

Back 63

power of appointment permits an income beneficiary to designate the remaindermen

Front 64

who is Donor?

Back 64

the creator of power of appointment

Front 65

who is Donee?

Back 65

the person who has the authority under power of appointment

Front 66

who is Takers in default of appointment?

Back 66

persons designated to take the property if the donee fails to effectively exercise his power

Front 67

what's General power of appointment?

Back 67

one exercisable in favor of the donee herself, her estate, her creditors, creditors of her estate

Front 68

what's Special power of appointment?

Back 68

one exercisable in favor of a specified class of persons (NOT include the donee, her estate, her creditors, creditors of her estate)

Front 69

what's General presently exercisable power of appointment?

Back 69

during her lifetime D can appoint the trust property to anyone including herself”

Front 70

(“& on D’s death the trust principal shall be distributed to such persons, including D’s estate, as she appoints by her will. what's this?

Back 70

2. General testamentary power of appointment

Front 71

can you get General presently exercisable power of appointment as testamentary substitute for elective share purpose?

Back 71

yes

Front 72

can you get General testamentary power of appointment as testamentary substitute for elective share purpose?

Back 72

NO, because you can’t get such property during her life time.

Front 73

"during her lifetime D can appoint the trust property to any one or more of her descendants by a written instrument delivered to the trustee" what's this? does this subject to testamentary substitute for elective share purpose?

Back 73

It 's Special power of appointment. no

Front 74

General presently exercisable power of appointment, can creditor reach?

Back 74

YES (can reach) – only this can be reached by creditors.

Front 75

can creditor reach specific power of appointment?

Back 75

no.