Wills 1

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Governing law

Back 1

oEstates Powers and Trust Law (EPTL)
oSurrogates Court Procedure Act (SCPA)

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Intestate

Back 2

when a person dies without a will

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decedent

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A person who dies without a will

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Distributee

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(heir/next of kin)- person who inherits property under intestate succession.

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issue

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- sometimes known as descendant, all persons who have descended from a common ancestor, include those in direct line of inheritance with the decedent.

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administrator

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- a person appointed as a personal representative to administer the estate of the decedent.

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administration proceeding

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- a proceeding initiated by a distribute to appoint an administrator and administer the property of the decedent.

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Intestate property

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assets held in the decedents name alone that do not pass by operation of law or by will and which the administrator administers in accordance with EPTL.

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operation of law

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property that passes automatically because of the way the property’s title is held, regardless of the existence of a will or intestacy.

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residuary

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the balance of the decedents estate after all claims, taxes and particular bequests have been distributed. The rest of the estate.

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application of intestacy rules

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o The EPTL contains the rules of descent and distribution of property in intestacy, which typically applies when: (1) decedent left no will or did not properly execute it; (2) the will does not make a complete distribution of estate, results in partial intestacy; (3) a distribute successfully challenges the will, and the will is denied probate.

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Order of priority for appointment as administrator

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oSurviving spouse
oChildren
oGrandchildren
oParent
oSiblings
oAny other distribute

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distribution

Decedent survived by spouse and no children

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Rule: If the decedent is survived by her spouse but not by any children or issue of children, the surviving spouse takes the whole estate.

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distribution

Decedent survived by spouse and children.

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 Rule: if the decedent is survived by his spouse and issue, whether of his current marriage or an earlier marriage the surviving spouse takes 50k and ½ of the residuary. The issue take the left over residuary.

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distribution

decedent survived only by children.

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 Rule: if the decedent is survived by children only (and no child has predeceased the decedent) it passes to children in equal shares.

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distribution

decedent survived by children and issue of predeceased children.

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Rule: if the decedent is survived by children and the issue of predeceased children it passes to alive children and the issue of the dead children by representation (per capita) at each generation.
•Drops down to next generation, added to together, then divided equally.

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distribution

decedent not survived by spouse or issue

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•All to parents or surviving parent
•If not survived by parents: all to issue of parents who take per capita at each generation.
•If not survived by parents or issue of parents: ½ to maternal grandparents or surviving grandparent, OR (if neither is living) to their children and grandchildren, who take per capita at each generation. AND ½ to paternal grandparents OR surviving grandparent or to their children and grandchildren, who take per capita at each generation.

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distribution
per stirpes v. per capita

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oIn most states (and old law in NY)- distribution is per stirpes, under which the issue of a predeceased child takes the share that the predeceased child would have taken, if alive.
NY- default distribution is per capital at each generation in both intestacy and in a will.
A will can override and change the default distribution to per stirpes. Per capita at each generation results in the same distribution as per stirpes if only one person at the first generational level died.

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inheritance rights

adoptive children.

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Adopted children and their issue: have full inheritance rights from the adopting family and vise versa.
Child adopted by new family: no inheritance rights from birth parents, or form members of the birth parents family.
Child adopted by new family: no inheritance rights from birth parents, or from members of birth parents family. Except: can inherit from adoptive parent and both birth parents.
Child adopted by a relative: if the adopted child is related to the decedent by both a birth relationship and an adopted relationship, the child inherits under birth relationship unless the decedent was the adopting parent, then the child inherits under the adoptive relationship.

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inheritance rights

non-marital children

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A non-marital child has full inheritance rights from mother and mothers family. However, a non-marital child inherits from the birth father only if paternity is established by one of the following 4 tests-
•(1) the father marries the mother after the child’s birth (legitimation by marriage).
•(2) an order of filiation in a paternity suit is entered adjudication the man to be the child’s father, or
•(3) the father files a witness and acknowledge (notary) affidavit of paternity with the putative father registry.
•(4) paternity is established by clear and convincing evidence, which may include (a) DNA/genetic marker test, (b) openly and notoriously accounting the child as own (birth certification etc.).
oSupport by itself is not enough.

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distribution

disqualifiying a spouse from taking intestate share.

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"DISMAL"
Divorce- a final decree of divorce or annulment recognized as valid under NY law.
Invalid divorce- the surviving spouse procured a divorce or annulment not recognized as valid under NY law. The surviving spouse is not disqualified if the deceased spouse procured the invalid divorce or annulment.
Separation decree- a final decree of separation was rendered against the surviving spouse. A separation agreement does not result in disqualification unless there is specific language in the agreement waiving the surviving spouses rights under EPTL. The surviving spouse is not disqualified if the final decree of separation was rendered against the deceased spouse.
Marriage is void- as incestuous/bigamous. Fraud.
Abandonment/lack of support- the surviving spouse abandoned or refused to support the deceased spouse. The surviving spouse is not disqualified if the deceased spouse abandoned or refused to support him or her.
Rule: assume the spouse predeceased and drop their share to kinds/next in line.

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distribution

liftime gifts to intestate distriubtees/advancements

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oCL: a lifetime gift to a child was presumptively an advancement of his intestate share, to be taken into account when distributing the estate death.
oNY: NY has rejected the advancement presumption by statute. Thus, there is no advancement unless proven by: (a) a contemporaneous writing made at the time of gift, (b) signed by donor/done.

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distirbution

disclaimer/renunciation by intestate disributee.

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o No one can be compelled to be a distributee or take property by operation of law. Rule: person who disclaims is considered to have predeceased them.
oA valid disclaimer must be: (1) in writing, signed and acknowledged (before a notary public) and (2) accompanied by a separate affidavit stating that no consideration was received for disclaiming (unless the surrogate court authorizes receipt of consideration for the disclaimer); and (3) irrevocable, and (4) filed with the surrogates court within 9 months after the date of death.
oAct as though disclaimer died 1 day after decedent.
Cannot disclaim to avoid paying Medicaid.

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testate

Back 24

when a person dies with a will.

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testator

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person who dies with a will.

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beneficiary

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a person who requires a bequest under a will.

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executor

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a personal representative named in the will to administer the estate of the testator.

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probate proceeding

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surrogate court proceeding to: (1) determine whether the testators will was validly executed and determine the intestate distributee’s, AND (2) appoint the executor to administer the testators estate.

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probate assets

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assets held in the testators name alone that do not pass by operation of law and which the executor administers in accordance with the testators will.

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satisfaction of legacy-

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- a lifetime gift to a will beneficiary.

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validity of will

requirements for duly executed will

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 (1) Must be 18 years old.
 (2) signed by the testator (making the will)- or by someone at the testators direction and in her presence.
• When the testators name is signed by another person, the proxy: (A) must also sign her name; (B) cannot be counted as an attesting witness, AND (C) must affix her address- but failure to affix does not invalidate the will.
 (3) Testator’s signature must be at the end thereof
 (4) Testator must sign will/acknowledge earlier signature in presence of each witness.
 (5) Testator must publish the will- publication requires the testator to communicate to the witness that they are witnessing a will, by declaring the document to be her “last will and testament.”
 (6) Must be at least 2 attesting witnesses, AND- (a) unlike most states, NY does not require that the witnesses sign in each other’s presence or in the testators presence, (b) attesting witness must attest to the testators signature when the testator signed the will. If the testator forgot to sign when the witness signed, and added his signature in the witnesses presence later, the will is denied probate because it is not a contemporaneous transaction.
 (7) execution ceremony must be completed in 30 days which starts to run when the first witness signed.

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codicil

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a later amendment/supplement to a will executed with the same formalities.

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Will rules

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Words following the testators signature are not given effect. Except, an entire will is declared invalid if the matter following the signature is so material that giving effect to that above the signature and not giving effect to that below the signature would defeat the testators intention.
Order of signatures is not critical as long as the ceremony is contemporaneous
Doesn’t matter if someone guides the testators hand when signing, as long as its voluntary.
Any mark intended as a signature is ok, even a x is sufficient.
If testator does not sign in witnesses presence, it is not a problem if he acknowledges his earlier signature.
In NY, witnesses do not have to sign in each others presence.

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wills- burden of proof

due execution

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oWill proponent- the person who offers the will for probate (usually the executor). The will proponent has the burden of due execution.
oAttestation clause- it appears BELOW the testators signature line and ABOVE the witnesses’ signature lines, and recites all the elements of due execution.
Clause is prima facie evidence of the facts presented.
Not a substitute for live testimony, is merely corroborative of the witnesses testimony. Why have one?- witness has a bad memory, or if the witness is hostile.

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burden of proof

self-proving affidavit

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oSelf-proving affidavit- it is attached to the back of the will, and is a mechanism set forth by the legislature which recognizes the validity of most wills is not contested. Witnesses sign a sworn statement in presence of attorney, that recites all statements they would make if called to testify in court.
Substitute for live testimony- self-proving affidavit is a substitute for life testimony. Serves the same function as a deposition or interrogatory.
Can be signed at any time after the will is executed. (usually same time). Will is admissible to probate on the strength of the sworn recitals in the affidavit unless an interested party objects. Interested party- an intestate distributee or will beneficiary (current or prior) who is adversely affected by the admission of the will to probate.
**Attestation and self-proving affidavit are not required in any state.

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Wills-

Interested witness statute

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oThe validity of the will is not affected if a will beneficiary is also an attesting witness but the bequest to the witness is void unless:
(a) supernumerary rule- there were at least 3 witnesses and 2 were disinterested, therefore the signature of the witness beneficiary is not needed to admit the will to probate; Or (b) the interested witness would be an intestate distributee if testator died without a will, then the “whichever is least” rule applies: The witness-beneficiary takes the lessor of: (i) bequest under the will, or (ii) his intestate share.
•If the witness is interested and not an intestate distributee, they lose their bequest under the will.
•Only gifts under the will trigger the interested witness statute, executors can earn fees.

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wills-

foregin wills act

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oA will is admissible to probate in NY if it was validly executed under: (END)
The law of the state where the will was EXECUTED, regardless of the testators domicile at the time, or
New york law, or
The law of the state where the testator was DOMICILED, either when the will was executed or at death.
•Use these only to determine if the will is admissible to probate in NY. Once the will is admitted, NY law governs construction and application of its provisions.

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wills

holographic and nuncupative

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oA holographic will is a will that is entirely in the testators handwriting that is signed, but not witnessed.
oA nuncupative will is an oral will
Both are void in NY, except: both are valid for members of the armed forces during declared or undeclared war (but void 1 year after discharge) and mariners at sea (but void 3 years after discharge).
If a holographic will is executed in state that recognizes them, and person dies in NY, its ok—foreign wills act.

Front 39

wills

lawyer malpractice

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o Beneficiaries- no cause of action against the lawyer for malpractice for negligence for improper drafting. There is no privity of contract between the parties, lawyers only duties are to the client, who is now dead. Privity does exist between the personal representative and the lawyer.

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wills

revocation

Back 40

oA will can be revoked by: (1) subsequent testamentary instrument executed with the appropriate formalities, or (2) by physical act- burning, tearing etc, but MUST HAVE intent to revoke. Includes writing void on the will, but it must be written across the words of the will (not below the signature). Anything done to the signature shows an intent to void the will.
oExpress revocation
By the language in the will… “I hereby revoke all wills heretofore made by me.”
oRevocation by implication
To the extent possible, you read two wills together, second will be treated as a codicil to the first and only revokes the first to the extent there are inconsistent provisions. Except, if the second will is wholly inconsistent with the first, the first will is revoked by implication.

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wills- revocation

by physical act of another (proxy)

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The physical act must be: (1) at the testators request, (2) in the testators presence, and (3) witnessed by at least two witnesses.

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wills- revocation

presumptions regarding reovation of wills.

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When a will that was last seen in the testators possession or control is not found after death, presumption that testator revoked by physical act with intent.
When a will that was last seen in the testators possession or control is found in a damaged condition after T’s death (torn in 2) presumption testator was the one who did it.
•Neither arises if the will was last seen in the possession of someone adversely affected by its contents. Evidence is admissible to rebut the presumption of revocation when the will cannot be found.

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changes on the face of a will

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oWays a testator can change their will:
(1) by a new will that revokes the first will, or (2) make a codicil to the first that changes parts. *both must be duly executed.
oWords added to a will after its signed and witnessed are disregarded.
oPartial revocation by physical act is not recognized in NY.

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rival of revocated wills.

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No revival of revoked wills. oIf a testator executes a will that is revoked by a later will containing a revocation clause, the first will cannot be revived by the testator merely revoking the later will. Can be revived only by: (1) re-execution- signed by testator and 2 witnesses, (2) doctrine of republication by codicil- testator validly executes a codicil to the first will making changes.
You need a validly executed document to make a change.

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Dependent realtive revocation (DRR)

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oDRR permits a revocation of a later will to be disregarded. Permits probate of the later will. It is a common law doctrine.
o(1) testators revocation must be premised or dependent upon a mistake of law, (2) the disposition that results from disregarding the revocation of the later will must come close to the dispositions the testator intended when the attempted to revive the earlier will.
NY- DRR has been applied in only one appellate division case. Other AD’s have said no. Argue both ways.

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lost wills statute.

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oUsed when: (1) DRR, and (b) truly lost the will.
oLost will proponent must prove: (a) the lost or later will was duly executed, (b) the lost or later will was not revoked—(i) overcome the burden of revocation that arises from the wills non-production, or (ii) prove that the revocation should be disregarded under DRR; (c) the wills provisions are clearly and distinctly proven by each of at least 2 credible witnesses, or by a draft or copy of the will proved to be true and complete.
Revoking a codicil does not revoke the entire will. Provisions in the will that were not changed by the codicil remain in effect.

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death of beneficiary during the testators lifetime.

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oA testator cannot make a gift to deceased person.
oAnti-lapse statute
If a beneficiary dies during the testators lifetime, the gift to the beneficiary lapses unless the gift is saved by the states anti-lapse statute.
NY’s anti lapse statute- the gift does not lapse but vests in the deceased beneficiary’s issue IF BOTH: (a) pre deceased beneficiary was testators issue, brother, or sister AND (b) predeceased beneficiary left issue that survive testator.
•A disclaimant is considered to have predeceased the testator.
•If will provides substitute taker use that, don’t use if gift fails under the will.
•A condition to bequest trumps anti-lapse (if he survives me).

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death of adopted out child.

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oAn adopted out child has no inheritance rights from the birth parents or other members of the birth family. If the testator specifically names an adopted out son, the anti-lapse statute can save the sons issue.

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lapse in a residuary gift-

survivng residuary beneficiaries rule

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oIF- Absent a contrary provision in the will, if the testator’s residuary estate is: (1) devised to two or more persons, and (2) the gift to one of them fails or lapses for any reason, and, (3) the anti-lapse provision does not apply. THEN the other residuary beneficiaries take the entire residuary estate in proportion to their interests.
Anti-lapse trumps the surviving residuary beneficiaries rule.

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Class Gifts-

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oAbsent a contrary provision in the will, if a will makes a gift to a group of persons described as a generic class and some members of the class predecease the testator, the class members who survive the testator take in equal shares.
oHow to determine members of the class: who is alive at testators death.
oWhen testator names beneficiaries individually, not as a class- any predeceased members gift fails, and will be included in the residuary.
oAnti-lapse trumps the class gift rule.
oConstruction of a class gift implicating an adopted out child- if a child is adopted by a new family, the adopted out child does not take as a beneficiary of a class gift made in the will of a member of the child’s birth family.
Adopted out child is entitled to share in a class gift if she is adopted by a member of the birth family.
oRule of convenience- later born class members: the class closes at the time a distribution to the class must be made. Later born members are excluded as taking as members of the class. They are not excluded if the gestation principle applies.
oWhen the class closes: (a) outright gift by will: on T’s death. (b) a life estate/income interest with a remainder to a class of beneficiaries: at death of life tenant/income beneficiary.