Wills

Front 1

What is the statute governing NY Wills and estates?

Back 1

Estates Power and Trusts Law (EPTL); the Surrogates's Court Procedure Act (SCPA)

Front 2

What does intestate mean?

Back 2

when a person dies w/o a will

Front 3

What is a decedent?

Back 3

a person who dies w/o a will

Front 4

What is a distributee?

Back 4

(aka heir, next of kin) person who inherits under intestate succession

Front 5

What is issue?

Back 5

(aka descendant) all ppl who have descended from a common ancestor, including those in direct like of inheritance of decedent (kids, grandkids, just means 'straight down')

Front 6

What is an administrator?

Back 6

person (usually distributee) who is appointed as personal rep to administer the estate of the decedent

Front 7

What is an administrative proceeding?

Back 7

initiated by a distributee to appoint an administrator and administer the property of the decedent

Front 8

What is intestate property?

Back 8

assets held in decedent's name ALONE, do not pass by operation of law or by Will and administrator administers in accordance with the EPTL

Front 9

What is operation of law?

Back 9

property that passes automatically b/c of way the property's TITLE is held, regardless of will or intestacy

Front 10

What is residuary?

Back 10

balance of the decedent's estate after all claims, taxes, and particular bequests have been distributed (the 'rest' of the estate)

Front 11

When do you apply intestacy rules?

Back 11

EPTL contains rules of descent and distribution of real and personal property in intestacy; it applies when 1) decedent left no Will or did not properly execute it, or 2) the will does not make complete distribution of the estate which results in partial intestacy (usually poor drafting by attorney), or 3) a distributee successfully challenges the Will and Will is denied probate

Hint 11

the first 2 tested more frequently

Front 12

What is the order of priority for appointment of an administrator?

Back 12

1. surviving spouse, 2. children, 3. grandkids, 4. parent, 5. siblings, 6. any other

Hint 12

first 2 usually fight over the appointment

Front 13

What happens when a decedent is survived by a spouse but no children, and therefore no issue of children?

Back 13

surviving spouse takes the WHOLE estate; (ex: H died intestate, survived by W, a mother and a brother=W takes all!)

Front 14

What happens when a decedent is survived by a spouse and his issue?

Back 14

regardless of whether the issue are of current or prior marriage, the spouse takes the first $50k,+ 1/2 the residuary; the issue take the leftover residuary and divide it equally among them, UNLESS the estate is less than $50k (then entire estate just goes to spouse)

Front 15

What happens when a decedent is survived by children only (and no child has predeceased decedent)?

Back 15

estate passes to children in equal shares

Front 16

What happens when a decedent is survived by children and issue of predeceased children?

Back 16

estate passes to the "alive" children, and the issue of the dead children, by representation called PER CAPITA at each generation level

Front 17

What is the PER CAPITA process?

Back 17

Step 1: property is divided into as many shares as there are issue at the FIRST GENERATIONAL LEVEL (treat it as though all were alive for this part to determine what percent of the estate the surviving issue at that level are owed); Step 2: all living issue a the first generational level take one share each; Step 3: the shares of the deceased issue at the first generational level (so decedent's children) combined, then divided equally among the takers at the next generational level in the same way as first gen level (these usually the grandchildren of decedent, the kids of the kids) meaning you divide it among the deceased children's children, NOT the alive child's child (b/c if the decedent's child is still alive but has her own child, the grandchild of decedent must wait until her parent dies to get anything)

Hint 17

Ex: if Grandma dies intestate, had 3 kids: Abner (alive), Borak (predeceased Grandma), Cyrus (predeceased Grandma); Abner had a child Gary at time of death; Borak had Ginger and Grace (alive at time of Grandma's death); and Cyrus had Gaylord (alive at time of Grandma's death): how distribute? 1) If all children at first level were alive, each would get 1/3, 2) so Abner the living one gets 1/3 to him, 3) combine Borak and Cyrus's shares (1/3+1/3) which=2/3, 4) then divide that equally among the dead children's issue (so b/t Ginger, Grace and Gaylord...2/3 divided by 3=2/9 each). DO NOT COUNT GARY in this part b/c he has to wait until Abner is dead to get anything!

Front 18

What is the rule of thumb for per capita distribution?

Back 18

issue in the same generation always have equal shares!

Front 19

What do you need to remember about in-laws? spouses of your issue?

Back 19

they are NOT intestate distributees! they lose out!

Hint 19

tested on a lot!

Front 20

Can a child of a person's estate bequeath his share of the ancestor's estate via will when the ancestor is not yet dead?

Back 20

NO, can't convey his interest in his ancestor's estate if the ancestor is still alive! what if the person dies before the ancestor? then the estate would be divided differently, according to per capita probably

Front 21

What happens if a decedent is not survived by a spouse or issue?

Back 21

distributed first: all to parents or surviving parent, second: if not survived by parents, to all issue of parents (your siblings and issue of deceased siblings) who take per capita at each generation, third: if no parents or issue of parents, 1/2 to maternal and 1/2 paternal grandparents (or their issue if they arent living, so aunts/uncles?), fourth: if one side of grandparents are dead, all goes to other sides' grandparents/children/grandchildren, fifth: first cousins once removed, 1/2 on each side, sixth: to great grandchildren on surviving side, seventh: escheats to state

Hint 21

first 2 are important, the rest arent

Front 22

What is the diff b/t PER CAPITA and PER STIRPES?

Back 22

in most states, distribution is PER STIRPES: meaning issue of predeceased child takes the share that the predeceased child would have taken if alive; in NY and other states, distribution is PER CAPITA: that's the default, per capita at each generation in BOTH intestacy and in a Will! (NY is called a "Modified Per Stirpes" jurisdiction

Front 23

In NY is it always divided per capita?

Back 23

not if a Will overrides it and change the default distribution to per stirpes

Front 24

In 2000, Grandpa (widower) executed a Will bequeathing $900k "to the issue of my brother Broderick" and his residuary estate to his mistress Myrtle. When Will executed, Brod had 3 kids, Archie Brewster and Clyde. Brewster died in 2003, leaving 2 kids, Gaby and Gretchen. Clyde died in 2004, leaving one child Gibson. Grandpa died in 2009, Will admitted to probate. Who takes the $900k as "Broderick's issue"?

Back 24

Step 1: property is divided into as many shares as there are issue at the FIRST GENERATIONAL LEVEL=3 kids, 1 surviving kid, so each takes 1/3 if all were alive; Step 2: all living issue a the first generational level take one share each=here Archie takes 1/3; Step 3: combine the shares of the deceased issue at the first generational level (so decedent's children), then divided equally among the takers at the next generational level in the same way as first gen level=so dead kids are Brewster and Clyde, each 1/3, so combine which=2/3...then dived by the 3 grandkids Gaby, Gretchen and Gibson which is 2/3 divided by 3=2/9! so each grandkid gets 2/9 of $900k, which=$

Front 25

What happens if only 1 person at the first generational level died depending on whether using per capita or per stirpes?

Back 25

per capita at each generation results in the same distribution as per stirpes!

Front 26

In 2000, Grandpa (widower) executed a Will bequeathing $900k "to the issue of my brother Broderick" and his residuary estate to his mistress Myrtle. When Will executed, Brod had 3 kids, Archie Brewster and Clyde. Archie died before Grandpa; Brewster died in 2003, leaving 2 kids, Gaby and Gretchen; Clyde died in 2004, leaving one child Gibson. Grandpa died in 2009, Will admitted to probate. How is the $900k distributed now?

Back 26

Since none of grandpa's own children at the first gen level are alive, then it just gets divided up among the 3 grandchildren into 1/3s

Front 27

What if Archie was the one who died only?

Back 27

Then 1/2 goes to each surviving first gen issue of grandpa (brewster and clyde)

Front 28

What are general inheritance rights of adopted children and their issue?

Back 28

gen rule is full inheritance rights from the ADOPTIVE family, and vice-versa (adoptive fam has rights to inherent from adopted child if he predeceases his adoptive parents)

Front 29

What are the inheritance rights of children 'adopted out' to a non-relative family?

Back 29

child has no inheritance rights from birth parents or birth family members; EXCEPTION--child adopted by spouse of a birth parent: adopted child and her issue can inherit from adopting parent and either birth parent (usually in context of divorce and remarriage, if your mom divorces your father and she remarries, then her new spouse (step-dad) adopts you, you can inherit from adoptive new dad, and your mother and/or your dad) (BUT: only goes downward, they can't inherit upward from kids)

Front 30

What are the inheritance rights of children 'adopted in' by a relative?

Back 30

SPECIAL RULE: a) if adopted child is related to the decedent by BOTH a birth relationship and adopted relationship, then child inherits under the BIRTH relationship; UNLESS b) decedent was the adopting parent, then child inherits under ADOPTIVE relationship

Hint 30

policy is to encourage family members to adopt

Front 31

What is the general rule on inheritance rights of nonmarital children?

Back 31

they have full inheritance rights from mother and mother's family; birth father is more complicated

Hint 31

too easy to test

Front 32

How does a nonmarital child inherit from the birth father DURING the father's life?

Back 32

only if paternity is established by 1 of the following 4 tests: 1) father marries the mother after the child's birth (legitimation by marriage), OR 2) an order of filiation in a paternity suit is entered adjudicating the man to be the child's father, OR 3) the father files a witnessed and acknowledged (before a notary public) affidavit of paternity with the Putative Father Registry. (**NOTE: 1 other way to do so while father is alive, in next slide b/c it can also be done after father dies)

Hint 32

these first 3 are too easy to test

Front 33

How does a nonmarital child inherit from the birth father DURING or AFTER the father's death?

Back 33

4) (BIG ONE!) est paternity by clear and convincing evidence by any of following: a) DNA/genetic marker test (can be done b4 or after he dies, but likely won't dig a body up if buried!), or b) openly and notoriously acknowledging child as his own (putting name on birth certif etc), or c) participating in school, visitation, gifts, etc. BUT: support by itself is NOT enough evidence (want to encourage legitimizing children)

Hint 33

dont confuse this with establishing paternity with family law equitable paternity learned later!

Front 34

What are circumstances that will disqualify a spouse from taking intestate share?

Back 34

DISMAL: D=Divorce: a final decree or annulment recognized as valid under NY law; I=Invalid divorce: the surviving spouse procured a divorce or annulment not recognized as valid under NY law (but NOT disqualified if deceased spouse was the one who procured the invalid divorce or annulment); S=Separation Decree: a final decree of separation was rendered against surviving spouse...a separation agreement only does not result in disqual UNLESS specif lang in agreement waiving surviving spouse's rights under EPTL; M=Marriage is Void: as incestuous, bigamous, fraudulent; AL=Abandonment or Lack of support: surviving spouse abandoned or refused to support the deceased spouse (but NOT disqual if deceased spouse was the one to abandon)

Hint 34

spouse has been bad!

Front 35

When a spouse is disqualified, what is the procedural tool that works to make this happen?

Back 35

the rule is that it's assumed that the surviving spouse predeceased and dropped share of estate to kids or whoever is next in line

Front 36

Are slayer statutes in NY?

Back 36

it's not per se in NY, so not actually on the books, but still constructively applied b/c it's the fair thing to do!

Front 37

What are lifetime gifts/advancements to intestate distributees at common law?

Back 37

was presumptively an advancement of his intestate share, taken into account when distributing the estate at death

Front 38

What are lifetime gifts/advancements to intestate distributees in NY?

Back 38

NY has rejected the 'advancement' presumption by statute, so no advancement UNLESS proven by BOTH of these: 1) a contemporaneous writing made at time of gift, AND 2) it is signed by donor OR donee. if can't prove both, then you just disregard any writing that acts as an advancement and divide shares up however you would normally

Hint 38

let's say Fred had $300k in his estate and advanced $30k separately (which is the value of land Fred owns) to Andrew, but has 2 other kids. You do $300k+$30k=$330k, then you divide $330k by 3 (representing each of the 3 kids) so each of the 2 children who didn't get an advancement gets $110k b/c Andrew already treated as having the $30k of his share, so Andrew gets $80k (will see similar thing in Wills too, not just here w/intestate!)

Front 39

What is a "renunciation" or "disclaimer" by an intestate distributee? What is the procedural tool to get this done?

Back 39

basically no one can be forced to accept property they don't want via operation of law, so can disclaim their share in whole or in part; if disclaim, the person who disclaims is considered to have predeceased the decedent (similar to spouse in DISMAL)

Front 40

How does an intestate distributee create a valid disclaimer?

Back 40

4 reqs: 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 Surrogate's Court authorizes receipt of consideration); AND 3) it's irrevocable; AND 4) filed with the Surrogate's Court within 9 months after date of death (to remember: think 9 months labor, disclaim child!)

Front 41

What is the procedural tool that knocks out the distributee after she validly disclaims?

Back 41

treat her as though she predeceased 1 day AFTER the decedent

Front 42

What is done with the shares of a grandchild when a relative at the first gen level (like an aunt) disclaims her inheritance and she is the only sibling of your parent, who predeceased the decedent?

Back 42

it screws the child with the parent who died b/c if the aunt disclaims, then there are no surviving ppl at the first gen level and it's PER CAPITA distribution of the estate among the 3 grandkids, so then you just divide equally among the second level, and if there are 3 grandkids then child of parent who died gets 1/3 instead of 1/2

Front 43

How do you avoid an inequitable result for the child of the parent in the first generation died, while the parent's sibling disclaimed?

Back 43

then you do a PER STIRPES analysis! shares would be divided up equally b/t the 2 "dead" first generation and the grandchild of the one who died would get 1/2, and the surviving aunt/uncle would get 1/2 passed down to 2 kids, so each of them would get 1/4.

Front 44

Why would anyone want to disclaim an inheritance?

Back 44

avoid taxes, creditors claims, remember you don't lose it, it goes to your kids!

Front 45

What can you NOT choose to disclaim?

Back 45

can't disclaim to have an effect on medicaid

Front 46

Who can disclaim?

Back 46

Will beneficiaries (big one!); beneficiaries of life insurance, employee benefit plans, trusts, other non-testamentary transfers, surviving joint tenant or tenant by entirety, decedent's guardian/holder of pwr of attny/personal rep on decedent's behalf

Hint 46

this is not that important

Front 47

What does testate mean?

Back 47

when a person dies w/ a Will

Front 48

What is a testator

Back 48

person who dies with a Will

Front 49

What is a beneficiary?

Back 49

person who receives a bequest (sometimes called a legacy or devise for real property) under a Will

Front 50

What is an executor?

Back 50

personal representative named in the Will to administer the estate of a testator

Front 51

What is probate?

Back 51

A Surrogate Court's proceeding to 1) judicially determine whether the testator's Will was validly executed and determine intestate distributees, AND 2) appoint the executor to administer the testator's estate

Front 52

What is probate estate/assets?

Back 52

assets held in the testator's name ALONE that do not pass by operaiton of law and which the executor administers in accordance with the testator's Will

Front 53

What is a satisfaction of legacy?

Back 53

a lifetime gift to a Will beneficiary (same as advancement for intestacy)

Front 54

What are the reqs of a duly executed Will?

Back 54

7 point test: 1) T must be at least 18 years old; 2) signed by T or someone at T's direction and in her presence (by proxy, the proxy must 1. also sign her name, 2. cannot be counted as attesting witness, AND 3. must affix her address, but wont invalidate if dont); 3) T's signature must be at the "end thereof"; 4) T must sign Will or acknowledge earlier signature in the Will in presence of each witness; 5) T must "publish" the Will (T must communicate to the witnesses that they are witnessing a Will, not other legal doc, by declaring doc to be her 'Last Will and Testament'); 6) must be at least 2 attesting witnesses (In NY don't req that witnesses sign in each other's presence or in testator's presence, and witnesses must attest to T's signature, otherwise denied probate b/c not contemporaneous transaction), AND 7) execution ceremony must be completed in 30 days, starts to run when the 1st witness signs it

Hint 54

THIS IS TESTED ON A LOT: run down: 1) T is 18+, 2) T signs, 3) signature at "the end thereof", 4) T signs, or acknowledges earlier signature, in presence of each witness, 5) publication, 6) two attesting witnesses sign, and 7) ceremony completed in 30 days

Front 55

What is a codicil?

Back 55

later amendment or supplement to a Will executed w/ same formalities (7 pt test)

Front 56

What happens if the T doesnt sign right at the end thereof?

Back 56

anything coming after signature is ineffective, BUT: if the matter following the signature is so material that not including it would defeat T's intent, then entire Will declared invalid

Front 57

Does it matter if a witness signs BEFORE the T?

Back 57

no, exact order isnt critical as long as ceremony b/t T and each witness is contemporaneous

Front 58

Does it matter if a witness guides the T's hand in signing the Will?

Back 58

no, if the facts show that it was voluntary rather than forced

Front 59

Does it matter if the T's signature is legible?

Back 59

no, any mark intended as T's signature is valid, even an X

Front 60

Does it matter if the T did not sign the Will in the second witness's presence?

Back 60

no, if T acknowledged that his signature is on there and tells the witness it's T's signature

Front 61

Does it matter if the witnesses don't sign in each other's presence?

Back 61

no, in Ny no req that witnesses sign in each other's presence

Front 62

Does it matter if one of the witnesses signs 14 days after the other?

Back 62

no, meets 30 day rule

Front 63

Does it matter if a witness predeceases the T?

Back 63

no, if it meets the 7 point test, then the Will will be admitted to probate

Front 64

Who has the burden of proof to show that the Will was duly executed?

Back 64

the Will proponent: person who offers Will for probate (usually executor)

Front 65

What is the rule for the will proponent proving due execution element about attesting witnesses?

Back 65

a) if 1 witness is not available to testify: testimony of one witness suffices if the other witness is dead, absent from the state, incompetent or cannot w/ due diligence be found; b) if no witness is available to testify: the proponent must prove signature of both the T and one witness; c) if Will not self-proved: both attesting witnesses must testify as to the facts necessary to show due execution

Hint 65

not that important!

Front 66

What is the Attestation Clause?

Back 66

below T's signature line and above witnesses' signature lines, and recites all the elements of due execution: "On the above date, the T declared to us that the foregoing instrument was her Will and she asked us to serve as witnesses thereto. She then signed the Will in our presence, we being present at the same time. We then signed the Will as attesting witnesses"; it is not necessary, but helpful!

Front 67

What is the probative value of the Attestation clause?

Back 67

clause is prima facie evidence of the facts presented; NOT a substitute for live testimony: merely corroborative of witnesses' testimony; Will proponent must still call witnesses to testify to prove their signatures

Front 68

What are the reasons for having an Attestation clause?

Back 68

a) if witness has bad memory (probate does not turn on the memory of attesting witness though); b) if witness is hostile (if recall signing something other than the Will)

Front 69

What is a Self-Proving Affidavit?

Back 69

attached to back of the Will and is a mechanism set forth by legislature recognizing that the validity of most Wills is not contested; witnesses sign a SWORN statement, in presence of an attorney, that recites all the statements that they would make if called into court (7 point test)

Front 70

What is the probative value of the Self-Proving Affidavit?

Back 70

unlike Attestation Clause, this IS A SUBSTITUTE FOR LIVE TESTIMONY of the witnesses, like a deposition/interrog

Front 71

What is the procedure of the Self-Proving Affidavit?

Back 71

a) can be signed at any time after the Will is executed, but USUALLY signed at same time as the Will; b) the Will is admissible to probate on the strength of the sworn recitals in the Affidavit UNLESS an interested party objects, in that case the formal rules of proof of due execution apply

Front 72

What is an interested party?

Back 72

intestate distributee or Will beneficiary (current or prior) who is adversely affected by the admission of the Will to probate

Front 73

Are the Attestation Clause and Self-Proving Affidavit legally req?

Back 73

no, NOT req in any state (but in reality it's close to malpractice not to have them, esp affidavit!)

Front 74

What is the Interested Witness Statute?

Back 74

the validity of will not affected if interested witness, where witness is also a beneficiary; but the BEQUEST to the WITNESS is VOID UNLESS: either 1) the supernumerary rule applies--at least 3 witnesses, 2 of which disinterested, OR 2) the interested witness would be an intestate distributee if the T had died intestate, and in this case, the witness takes whichever is least: a) the gift under the will, or b) the intestate share

Hint 74

the second one is the BIG one! purpose behind this statute is to prevent fraud

Front 75

What is the "whichever is least" rule regarding interest witnesses?

Back 75

the witness/beneficiary takes the lesser of: 1) the bequest under the will, OR 2) his intestate share

Front 76

What if there is a problem with the bequest that T gives to an interested witness, where it fails the Interested Witness Statute tests?

Back 76

the bequest will fail, but the Will is still good!

Front 77

What if the interested witness is a friend and not a relative?

Back 77

therefore not an intestate distributee, so unless there are 2 DISINTERESTED witnesses apart from the friend, the friend can't recover anything

Front 78

Can an executor be an interested witness under the statute?

Back 78

no, because only gifts/bequests under the Will triggers the statute, b/c the executor earns a salary so any money he gets is part of his salary

Front 79

What is the Foreign Wills Act?

Back 79

determines whether a Will is admissible to probate in NY; if it was validly executed under (END): E=law of state where Will was EXECUTED, regardless of T's domicile at the time; OR N=NY law, OR D=law of the state where the T was DOMICILED, either when Will was executed or at death. remember, this act applies to see if a Will from another state can be admitted to probate in NY, and once admitted, use Ny law!

Front 80

What is a holographic Will?

Back 80

entirely in T's handwriting that is signed but NOT witnessed; but if it was handwritten and witnessed, then of course valid! just b/c handwritten doesnt make it invalid, as long as it satisfies all the 7 points

Front 81

What is a nuncupative Will?

Back 81

oral Will (like on a dvd)

Front 82

In NY, are holographic and nuncupative Wills valid?

Back 82

No, EXCEPTION: valid for members of the armed forces during declared or undeclared war (but void 1 year after discharge) and mariners at sea (void after 3 years discharge)

Hint 82

this one gets tested on!

Front 83

If a holographic or nuncupative Will is executed in a state that allows them, will NY accept them?

Back 83

YES! don't forget about the Foreign Wills Act!

Front 84

Can beneficiaries sue the estate lawyer for malpractice?

Back 84

no, b/c there is no privity of k b/t the beneficiaries and the lawyer, duty only to client who contracted for lawyer's services, and client now dead (although estate could try to bring an action to recover funds paid to the lawyer)

Front 85

Is there privity of k b/t the estate lawyer and anyone?

Back 85

yes, privity or a relationship approaching privity exists b/t executor and estate planning lawyer; but not to third party beneficiaries! doesnt change rule that beneficiaries of the Will can't sue the alwyer personally

Front 86

What is a valid revocation of a Will?

Back 86

Will can be revoked in only 2 ways: 1. by subsequent testamentary instrument executed with appropriate formalities, OR 2. by physical act (burning, tearing, cutting, canceling, obliterating, mutilating) BUT must have INTENT to revoke: accidental destruction or partial revocation of a will does not revoke it; presumption of revocation may be overcome by proof that the will was revoked by accident, unless the intent to revoke was present at the time of the physical act of destruction; however, declarations by the decedent designed to show that the will had not been revoked are not admissible unless they are made in connection with the act, "under circumstances as to become part of the res gestae", and witnesses to the declarations can testify about the intentions of the decedent at the time of the alleged revocation

Hint 86

watch for intent!

Front 87

How can you revoke a Will with a pen?

Back 87

a) CANNOT just write at the bottom of each page "this Will is void, signed T" (without witnesses and other formalities, that is...if had formalities then ok) so if no formalities must write VOID across whole page, or other form of crossing out the words of the WILL, and must have INTENT to revoke; b) can cross out SIGNATURE, b/c anything done to the signature shows intent to revoke b/c decisive act

Hint 87

watch for intent!

Front 88

What is an express revocation?

Back 88

typical language is "I hereby revoke all Wills heretofore made by me"

Front 89

let's say you had a Will that said "my last Will" then 2 years later have new document that said "my last Will" but no revocation language of the earlier Will?

Back 89

Creates a revocation by implication: to extent possible, read 2 instruments together, second Will treated as codicil to the first, and only revokes first to extend of its inconsistent provisions

Front 90

what if you have 2 Wills executed at different times, and second one doesnt revoke first, therefore the second is wholly inconsistent?

Back 90

then the first Will is revoked by implication (second way that you see this)

Front 91

What is revocation by physical act of another (revocation by proxy)?

Back 91

the physical act must be: 1) at the T's request, 2) in the T's presence, AND 3) witnessed by at least 2 witnesses; this means that 4 people must be present (T, 2 witnesses, and person revoking/destroying the Will)

Front 92

What is the presumption re revocation of Wills?

Back 92

a) when a Will last seen in T's possession/control is NOT FOUND after death, PRESUMPTION=T revoked the Will by phys act w/ intent to revoke; b) when Will last seen in T's possession/control is found in DAMAGED condition (like torn in 2), PRESUMPTION=T was the one who revoked it, not other person. EXCEPTIONS: a) neither presumption if last seen w/ someone adversely affected by the Will; b) evidence is admissible to rebut presumption of revocation when Will can't be found or in damaged condition (refer to Lost Wills Statute)

Front 93

How can a T make changes on the face of the Will after it's been executed?

Back 93

only 2 ways: 1) write a new Will which revokes 1st Will, OR 2) make a codicil to 1st Will changing only parts of the Will (NOTE: both types of changes must be duly executed, 7 pts!); BUT don't forget: words added after signature are disregarded, but can put initials after each new paragraph if other 7 pts intact, and partial revocation by phys act not recognized in NY)

Hint 93

courts will look for staple holes!

Front 94

Is partial revocation of a Will via physical act accepted in NY?

Back 94

no

Front 95

Can you revive the 1st Will if you made a 2nd Will that you revoked?

Back 95

1st Will cannot automatically be revived just by T revoking 2nd Will; can only be revived in 2 ways: 1) Re-Execution: signed again by T and 2 witnesses, 7 pt test, OR 2) Doctrine of "republication by codicil", T validly executes codicil to 1st Will, meets 7 pt test, and add to 1st Will

Front 96

Can you revive any codicils of a 1st Will when you revoked the 2nd Will?

Back 96

no, same "no revival rule" for codicils as for Wills

Front 97

What is the rule of thumb for making changes to a Will or codicil?

Back 97

need validly executed document, 7 pts!

Front 98

What is Dependent Relative Revocation (DRR)?

Back 98

("dependent" on the T's intent) common law doctrine, DRR, permits a revocation of a later Will to be DISREGARDED, thus admitting probate of the later Will (this is also called "second best solution doctrine" b/c usually can't do the first best solution which is to give effect to the T's true intent by reviving the earlier Will, which is just usually not possible in NY

Front 99

What are reqs for application of DRR?

Back 99

1) T's revocation must be premised or dependent on a MISTAKE OF LAW (like thinking that revoking later Will validates prior Will); 2) the disposition of property that results from disregarding revocation of later Will must COME CLOSE to disposition T intended when tried to revive first Will

Front 100

Has DRR been applied in NY?

Back 100

in 1 appellate division case, but never by Court of Appeals (recent case said won't apply it!) NY is HOSTILE to DRR!

Front 101

What happens if DRR is not applied, but the earlier Will was revoked too?

Back 101

then must use laws of intestacy

Front 102

What is the "Lost Wills" Statute?

Back 102

used in 2 situation: 1) DRR, and 2) truly 'lost' Wills

Front 103

What must a Lost Will proponent prove?

Back 103

1) that the 'lost' or later Will was duly executed, 7 pt test; and 2) the 'lost' or later Will was not revoked (so must 1. overcome presumption of revocation that arises from Will's non production, OR 2. prove that the revocation should be disregarded under DRR); and 3) that the Will's provisions are "clearly and distinctly proven by each of at least 2 credible witnesses, or by a copy or draft of the Will proved to be true and complete"

Hint 103

the first 2 are rarer, but the third tested on a lot!

Front 104

Does revoking a codicil revoke the entire Will?

Back 104

no, provisions in the Will that werent changed by the codicil remain in effect

Front 105

Can a T make a gift to a deceased person/beneficiary?

Back 105

no

Front 106

What happens if a beneficiary dies during the T's lifetime?

Back 106

gift to beneficiary LAPSES (fails) UNLESS saved by the Anti-Lapse Statute

Front 107

What is NY's Anti-Lapse Statute?

Back 107

gift to dead beneficiary does NOT lapse, but VESTS in the deceased beneficiary's issue IF BOTH of these conditions are satisfied: 1) the predeceased beneficiary was T's issue, brother or sister; AND 2) the predeceased beneficiary leaves issue who survive T

Front 108

Going back to beneficiaries disclaiming inheritance in intestate succession, can beneficiary disclaim a bequest via Will?

Back 108

yes, and again, treated as though she predeceased the T

Front 109

Tristan left in his Will $80billion to his daughter Daisy, who has 4 children. Daisy files proper disclaimer. Does anti-lapse statute apply (meaning although Daisy is treated as though she predeceased T, children can still get the money b/c it vests in them?)

Back 109

yes, b/c Daisy is the daughter of T, AND Daisy leaves issue surviving T

Front 110

If there is a specific condition placed upon a bequest vesting, like devising the Empire State Building to "my brother Bogart, if he survives me", and then Bogart predeceases T but he has issue, does this trump Anti-Lapse statute so that Bogart's child doesnt get the bequest vested in her?

Back 110

yes, the specific condition to a bequest in the Will trumps anti-lapse

Front 111

What happens when an "adopted-out" dies?

Back 111

even if a child is adopted out, if the T specifically named the adopted out child in his Will, the anti-lapse statute saves the T's devise to the adopted out child's issue

Front 112

What is a lapse in a residuary gift, the "Surviving Residuary Beneficiaries Rule"

Back 112

absent contrary provision in a Will, if the T's residuary estate is: 1) devised to 2+ ppl, AND 2) gift to 1 of them fails or lapses for any reason, AND 3) the anti-lapse statute does not apply, THEN: the other residuary beneficiaries take the entire residuary estate in proportion to their interests

Front 113

Say that T provides "I devise the residue in equal shares to my sisters Sandy and Sunshine, and my good friend Dr. Clapp" then T dies, and is survived by Sandy and Sunshine, but Dr. had predeceased T leaving a son, James, who survived T; what happens to James?

Back 113

the anti-lapse doesnt preserve Dr. Clapp's 1/3 b/c he's just a friend, not a relative, so fails prong 1; S and S take entire residuary estate

Front 114

What is the rule of thumb for surviving residuary beneficiaries rule?

Back 114

anti-lapse always trumps surviving residuary beneficiaries rule

Front 115

What is the general rule on class gifts?

Back 115

absent contrary provision in the Will, if makes a gift to a group of ppl in generic class (like children, siblings, etc) AND some members predecease T, members who survive T take in equal shares

Hint 115

this is based on presumed intent, since T was group minded

Front 116

How do you determine members of a class?

Back 116

look at who is alive at T's death (in fact patterns look at dates!)

Front 117

What happens when T names many beneficiaries individually, not as a class?

Back 117

if a beneficiary predeceases others in the class, and therefore lapses, his share doesnt go to others b/c they are individually named; instead goes to residuary

Front 118

What is the rule of thumb for class gifts?

Back 118

anti-lapse always trumps class gifts

Front 119

What happens to an adopted out child in context of a class gift?

Back 119

adopted out child does NOT take as a beneficiary of the class gift in the Will of a member of adopted out child's birth family

Front 120

What happens to an adopted child in context of a class gift, if she were adopted by a member of the birth family?

Back 120

then the child IS entitled to share in the class gift

Front 121

What is the Rule of Convenience?

Back 121

determines when a class closes, which is at the time a distribution to the class is made; LATER-BORN class members are EXCLUDED from taking as members of the class (except gestation rule, 280 days from conception to birth)

Hint 121

rule of convenience b/c any other solution would disrupt property ownership, avoid ppl seeking shares of things they arent supposed to receive if born too late

Front 122

When does the class close?

Back 122

depends on what the interest is: 1) outright gift by Will: closes on T's death; 2) a life estate or an income interest with a remainder to a "class of beneficiaries": closes at death of the life tenant or income beneficiary

Front 123

What is covered under simultaneous deaths?

Back 123

a will should contain a simultaneous death clause that instructs what to do if it cannot be determined who died first; in NY, if such a clause is not included, then the Revised Uniform Simultaneous Death Act (RUSDA) governs; RUSDA and Jointly Held Property

Hint 123

ripe for testing!

Front 124

What does RUSDA do re distribution of property?

Back 124

unless a Will says otherwise, if a person dies where there's insufficient CLEAR and CONVINCING evidence to prove that the person survived the other person with 120 hours (5 days), you presume that each outlived the other when figuring out distribution of property; KEY=LOOK AT WHOSE ESTATE YOU ARE DISTRIBUTING! THAT PERSON IS PRESUMED TO HAVE SURVIVED THE OTHER PERSON!

Front 125

Say that Widow has $25 mil life insurance policy, beneficiary is son Solomon "if he survives me; otherwise to Destiny". Her will leaves residuary estate to "1/2 Solomon and 1/2 Destiny". W and Solomon both poisoned at same time, but Solomon lingered 48 hours after W, then died, leaving daughter Gigi. Destiny survives both. Solom devises his estate to friend Felix. 1) who takes life insurance proceeds? 2) who gets the residuary?

Back 125

1) look at whose estate, it's W so she is deemed to have survived Solomon (Solomon predeceased) and b/c of the conditional language, this trumps the anti-lapse statute that would keep the gift and give it to Solomon's issue, Gigi, so instead ALL of proceeds goes to Destiny b/c condition failed; 2) Destiny gets her half of the residuary, and Solomon's share goes to Gigi b/c of anti-lapse statute, treat him as predeceased and so his share goes to his issue (BUT: if Solomon had not predeceased W, and W died first, then Solomon's share of the residuary would pass to Felix once Solomon died)

Front 126

How does RUSDA treat jointly-held property?

Back 126

again, jointly-held property passes as though each co-owner survived the other (depending on whose estate you're looking at); theoretically SEVERS the RIGHT OF SURVIVORSHIP and property passes as though it were a TENANCY IN COMMON instead! (the same distribution results for tenants by entirety and joint bank accounts)

Front 127

What happens if the T marries after creating his Will?

Back 127

has no effect on validity of the Will but may affect gifts and dispositions under the Will; why? refer to "right of election" later on, which prevents T from disinheriting a spouse

Front 128

What happens to T's ex-spouse if he "unmarries"?

Back 128

must be a final decree: of divorce, annulment, separation AFTER execution of the Will; this revokes as operation of law all gifts/fiduciary appointments in favor of former spouse: procedurally, treat spouse as if she PREDECEASED the T; EXCEPTIONS: 1) all gifts and fiduciary appointments in favor of ISSUE of former spouse are NOT revoked as operation of law; 2) if former spouse appointed guardian of the couple's children, NOT revoked; 3) if couple reconcile and remarry, ALL provisions in favor of former spouse restored

Front 129

W' Will devises Greenacre to Hank husband and rest of her estate to brother Bronson: "H will serve as executor and guardian to daughter Debbie, otherwise B will do those things" W and H divorce in 2006, W dies in 2007 without changing Will. What happens to Greenacre? Who is executor? Who is Guardian? What if the divorce decree wasn't final?

Back 129

H treated as if he predeceased W, so the gift is revoked and it goes to B (does NOT go to daughter Debbie b/c anti-lapse doesnt apply here, remember H is not an issue or sibling so n/a!); B is executor; H is guardian, not revoked; must be final decree of divorce, NOT just in process of divorce, so H would be ok in that situation

Front 130

What happens to T's life insurance proceeds, naming H as primary beneficiary, if she and H are divorced prior to T's death?

Back 130

new statute! H does NOT get insurance proceeds; a final divorce decree knocks out spouse from things that usually pass by operation of law (Iike totten trusts, life insurance, other joint bank accounts)

Hint 130

ripe for testing!

Front 131

What happens to children born AFTER T executes her Will?

Back 131

pretermitted children=born or adopted AFTER the Will is executed; the EPTL only protects pretermitted children who are 1) not provided for by any settlement, AND 2) neither provided for or mentioned in the Will (policy=make sure child inherits somewhat equally w/ siblings in case parents forget to change their Wills)

Front 132

What does "any settlement" mean for first req of a pretermitted child getting inheritance?

Back 132

can be an insurance policy, anything regardless of how much it's worth (so if the Will provided the pretermitted child with proceeds from a life insurance, then EPTL does not kick in

Hint 132

don't confuse this concept with 'satisfaction of legacies'

Front 133

What happens to the pretermitted child if none of the children are mentioned in the Will?

Back 133

they all get nothing

Front 134

What if the Will makes gifts to all the children except the pretermitted child?

Back 134

preterm child shares in the amount as if it were a class gift

Front 135

What happens to the pretermitted child/children if the T only intended to make a limited (nominal) provision to the children living before Will was executed?

Back 135

the preterm child takes her intestate share (which makes succession messy for kids with nominal inheritance b/c pretermitted child can get way more!)

Front 136

What happens if the T had NO children when Will was executed?

Back 136

afterborn children take intestate shares

Front 137

What are the questions you have to ask to see if a pretermitted child takes anything from his/her parents as intended under EPTL?

Back 137

1) is child born/adopted AFTER Will is executed? if yes, then 2) is child NOT provided for by any settlement? if yes, then 3) is child neither provided for nor mentioned in the Will? if yes, then: child is preterm as intended by the EPTL

Front 138

What if the T devises DIFFERENT AMOUNTS to each child living at time executed Will, then later adopts a child?

Back 138

you add the amounts of what each existing child would receive together, then divide by number of children (which includes the afterborn)

Hint 138

note: math on this will always be complicated so just give the rules

Front 139

Can frozen embryos count as afterborn?

Back 139

no, must be in gestation prior to a T's death!

Front 140

What happens when words of disinheritance are found in a Will that doesnt make complete distribution of estate (only partial), at common law?

Back 140

common law rule: applicable in most states, the words of disinheritance are INEFFECTIVE w/respect to property passing by intestacy (rationale: property passing by intestacy is governed by intestacy law, not T's Will!)

Front 141

What happens when words of disinheritance are found in a Will that doesnt make complete distribution of estate (only partial), in NY? What is the procedural tool they use to effect this?

Back 141

"Negative Bequest Rule": words of disinheritance are given FULL EFFECT in partial intestacy; the person who is disinherited is treated as though she PREDECEASED the T

Front 142

What is an example of when a Will does not make complete distribution of an estate?

Back 142

if the T leaves her residuary estate to her spouse, but divorces her spouse prior to her death and did not change Will in time: therefore the residuary passes into intestacy

Front 143

What happens in a partial intestacy situation when the residuary must pass by intestacy, but T disinherits her daughter but not her daughter's children?

Back 143

the anti-lapse kicks in b/c daughter treated as if she predeceased T, so then her half of the residuary goes directly to her issue since T didnt disinherit daughter's children

Front 144

What is the equivalent of 'advancement' in intestacy distribution for Wills?

Back 144

called "Satisfaction of Legacies"

Front 145

What is Satisfaction of Legacies at common law?

Back 145

lifetime gift made after T's execution of her Will, to a beneficiary named in T's Will, is presumptively made in partial or total satisfaction of the legacy, to be taken into account when distributing property after T's death

Front 146

What is Satisfaction of Legacies in NY?

Back 146

rejected the presumption, by statute. no satisfaction of legacies UNLESS proved by 2 things: 1) contemporaneous writing made at time of the gift, AND 2) signed by donor, and 3) evidencing his intention that the gift be treated as in satisfaction of the bequest

Hint 146

distinguish this from pour-over trusts

Front 147

What is the policy on Incorporation by Reference--Extrinsic Documents in common law? (just use this as backdrop to NY rule)

Back 147

an extrinsic doc can be incorporated by reference if: 1) the doc was in existence when Will was drafted, 2) Will shows intent to incorp doc; and 3) doc is clearly identified in lang of Will

Front 148

What is the policy on Incorporation by Reference--Extrinsic Documents in NY?

Back 148

does not recognize incorp by reference, everything must be formally executed (7 pts, no extrinsic docs!)

Front 149

What is the idea of Acts of Independent Significance ("Nontestamentary Acts")

Back 149

acts performed by T AFTER Will is executed which have motive independent of testamentary purpose are given full effect when distributions are made; EXCEPTION: title docs (deeds, stock certificates, bank passbooks) can ONLY be transferred as mandated by law

Front 150

What happens if T devises "the car that I own at my death" to his nephew and "all the furnishings in my living room" to his sister; and then trades in his Taurus for a Porsche, and puts a Rembrandt worth $1bil in his living room, then dies?

Back 150

nephew gets the porsche, sister gets the rembrandt, because of Nontestamentary Acts, still given effect!

Front 151

come back to the putting it together hype on pg 52 later!

Back 151

52

Front 152

What are the diff types of testamentary gifts?

Back 152

a) specific gifts ("I devise Blueacre to my son"); b) demonstrative legacy (general amt 'from' specific source, "I bequeath $5mil to my daughter FROM proceeds of my GE stock"); c) general legacy (general amt, "I give my son $50k" or "I give my daughter x shares of stock"); d) residuary disposition ("I give all rest, residue and remainder of my estate to x"); e) intestate property (from partial intestacy and no residuary clause--if no residuary clause, no anti-lapse so falls into intestacy)

Hint 152

the word "from" is very important in distinguishing b/t a general gift and a demonstrative gift!

Front 153

What is Abatement of Legacies?

Back 153

"Reduction" of legacies, if there are more claims against the estate than there are assets to pay for all gifts under the Will, the Will abates: means that won't give effect to gifts so that creditors' claims can be satisfied (creditors get priority often)

Front 154

What is the order of Abatement?

Back 154

if no provision in Will, order is: First: intestate and residuary property; Second: general gifts (abates pro rata); Third: demonstrative gifts (abates pro rata); Fourth: specific gifts; Fifth: gifts that qualify for estate tax marital deduction (don't need to know)

Hint 154

think of it in sense that the more thought T put into a gift, the more likely he wants to reserve the gift for the intended parties; ok sacrificing less thought out gifts to ppl first

Front 155

What does abatement of a general gift or a demonstrative gift "pro rata" mean?

Back 155

if after residuary gift used toward paying off a debt, then the next gift to look at is general, so if 2 people are each owed money but debt still needs to be satisfied (but their total combined general gifts exceed the amount of debt left) then you take out the same proportion of money from each of their general gifts to put toward the debt. (ex: T's estate is worth 200k, but still owes 100k; he gives residuary to friend Daniel, and general bequests of $50k to Carl and $50k to Betsy; take from residuary first, then from each of the general beneficiaries in this situation, they give $25k each into pot)

Front 156

What is Ademption?

Back 156

if T makes SPECIFIC GIFT of property but cannot be found or not owned by T at time of T's death, gift fails regardless of T's intent (adeems=fails)

Hint 156

only applies to SPECIFIC gifts!

Front 157

Why don't demonstrative legacies adeem?

Back 157

a demonstrative gift is a general gift that comes from a specific source; if the source is no longer there, then just turn it into a general legacy, meaning other assets of the estate will be sold to satisfy the demonstrative legacy

Front 158

What are 3 statutory exclusions to the rule of Ademption?

Back 158

1) insurance proceeds for lost, damaged or destroyed property: beneficiary of the property takes insurance proceeds to extent they were paid out AFTER T's death (if before then T would get it probably); 2) proceeds received under an executory k (meaning hasn't been performed) get paid out AFTER T's death; 3) proceeds from a guardian or conservator's sale of specifically bequeathed property: beneficiary is entitled to receive $ or property into which proceeds from sale/transfer can be TRACED (if can't trace, then adeems)

Hint 158

could see on MBE!

Front 159

What is the rule on specific gifts of encumbered property: no exoneration of liens, at common law?

Back 159

if T makes a specific gift of property subject to mortgage/other lien of which T personally liable, the beneficiary entitled to have lien EXONERATED; exoneration=discharge of any encumbrances on specifically bequeathed property USING THE RESIDUARY estate

Hint 159

this may show up on the MBE!

Front 160

What is the rule on specific gifts of encumbered property: no exoneration of liens, in NY?

Back 160

liens on specific property devised via Will are NOT exonerated and the beneficiary takes what the T owned, subject to the lien, UNLESS Will directs for exoneration (meaning the residuary does not have to pay the creditors with lien money unless the Will says so)

Front 161

What if there is a provision in the Will that generally states that the executor must pay all debts out of T's residuary?

Back 161

this is too general, in NY, the provision MUST be specific to the actual lien in question, not a general provision for discharging debts generally

Front 162

What are the rules on ademption of bequests of stocks, shares, other securities?

Back 162

a) gifts of stock in PUBLICLY traded corps are: general gifts and don't adeem, EXCEPTION: they are specific gifts if the T bequeathes "my __ stock" then it does adeem; b) gifts of shares of stock in CLOSELY-HELD companies are: specific gifts and they adeem as if don't exist at time of disposition of property; c) most important, gifts of shares of stock where STOCK-SPLIT occurs are: treated as specific bequests for purpose of the split (note, it's irrelevant for stock splits if T used "my" language or whether corp was public/private)

Hint 162

this gets tested on a lot!

Front 163

What happens if a gift of stock does not adeem, but the stock no longer exists?

Back 163

then the estate must sell other assets/stock to pay the beneficiary

Front 164

If a T's stock splits and now he owns 200 shares of Kodak instead of 100, and bequeathed the 100 shares to his brother, what does the brother get now?

Back 164

he gets 200 shares, treated as specific bequest

Front 165

For stock, what is the difference b/t when a specific bequest of stock adeems and is not traceable, vs. when it does not adeem b/c it is directly traceable?

Back 165

ex of when not traceable: T sells stock or trades it in for diff company's stock; ex of when traceable: stock that T owned in company A was bought out by company B, so now T owns stock in company B=this is just change in form, not substance, so does not adeem and beneficiary can take

Front 166

come back to putting it together part on pg 62

Back 166

62

Front 167

What are categories of non-probate assets (not subject to disposition under Will or intestacy)? (note: remember that probate estate assets are property that T owned SOLELY in his name at time of death, disposed of via Will or intestacy)

Back 167

a) property passing by right of survivorship (joint bank acct, joint stock acct, payable on death securities); b) property passing by k (like life insurance policy or employee benefits payable to beneficiary OTHER than decedent or his estate; BUT if proceeds paid to T's estate or executor, then become probate assets); c) property held in trust (terms of trust will govern disposition of trust assets); d) property over which decedent held power of appointment

Front 168

Say that T named as primary beneficiary of his life insurance proceeds his wife, W; but in his Will, he directs the proceeds to go to his brother; who gets the insurance proceeds?

Back 168

the beneficiary under the life insurance policy, W! a Will does not govern insurance proceeds, b/c it's non-probate asset!

Front 169

What is the Elective Share Statute?

Back 169

it protects surviving spouse against disinheritance by giving MINIMUM share of the T's probate estate, automatically

Hint 169

can't screw spouse in death!

Front 170

What is the elective share?

Back 170

the greater of: a) $50k, or b) 1/3 of the T's estate (most likely will be the 1/3 on the exam)

Front 171

How does payment of elective share amount work?

Back 171

calculated in theory as only applied to the T's NET PROBATE ESTATE=the value of the estate AFTER payments of debts, but BEFORE payment of estate taxes

Front 172

What happens if the elective share is not satisfied for the surviving spouse?

Back 172

other beneficiaries (under the Will, beneficiaries of "testamentary substitutes" and/or intestate distributees, basically everyone) must contribute pro rata

Front 173

When comparing a surviving spouses Elective Share vs. Intestate Share, what is the rule of thumb on which the spouse should probably take?

Back 173

remember, if intestate, the surviving spouse gets entire estate (if T not survived by any issue) OR $50k+1/2 the balance of the estate (if T survived by issue); BUT rule of thumb: the surviving spouse's INTESTATE share will ALWAYS be LARGER than the elective share, UNLESS the "t-subs" are involved

Front 174

What is the purpose of Testamentary Substitutes (T-subs)?

Back 174

since the elective share applies only to the probate estate of T, meaning that the spouse is only guaranteed a certain amount of T's probate estate no matter what, then the T could try to screw spouse by transferring a lot of probate assets into non-probate form or just transferring to other ppl, so that the spouse doesnt get much of elective share; the T-subs prevent this by allowing not only probate assets to be considered in elective share, but T-Subs to be included too! (assets are part of what's called the "elective share estate")

Front 175

What are the T-Subs?

Back 175

T Subs need a LEG UP: (TS LEG UP): T=Totten trusts; S=Survivorship estates; L=lifetime transfers w/ strings attached; E=Employee pension, profit-sharing, and deferred comp plans; G=Gifts made w/in 1 year of death of T, the excess of $13k AND gifts causa mortis regardless of amount; U=U.S. govt bonds and other P.O.D. (pay on death) arrangements; P=Powers of Appointment

Front 176

describe totten trust t-sub

Back 176

(including bank accounts in T's name in trust for another, and payable on death securities);

Front 177

describe survivorship estates t-sub

Back 177

(including joint tenancies, by entirety, joint bank accts, survivor bank accts--if created on/after sept 1, 1966) (watch out for pre/post marriage scenarios here!!)

Front 178

describe lifetime transfers w/ strings attached t-sub

Back 178

includes: a) transfers where T retains power to revoke, invade, consume, or dispose of principal, or name new beneficiaries, AND b) irrevocable transfers made DURING THE MARRIAGE, where T retained a life estate (if irrev transferred on or after sept 1, 1992)

Front 179

describe employee benefits etc. t-sub

Back 179

if the plan is called "QUALIFIED PLAN", only 1/2 is a t-sub, regardless of beneficiary!

Front 180

describe powers of appointment t-sub

Back 180

property over which the T held a "presently exercisable general" power of appointment

Front 181

What is the general rule of thumb for t-subs?

Back 181

if T has an interest in property, probably a T-sub, EXCEPT gifts (that don't fall in t-sub gift exception)

Front 182

What are non-t-subs?

Back 182

LOGPIT: L=Life insurance; O=One-half of qualified pension and profit-sharing benefits; G=Gifts of less than $13k made w/in 1 year of T's death (except gifts causa mortis); P=pre-marriage irrevocable transfers; I=Irrevocable transfers made more than 1 year before death; T=Transfers (irrevocable) made during marriage where T retains a life estate (if before sept. 1, 1992)

Front 183

describe the life insurance non-t-sub

Back 183

whether payable to the surviving spouse or a third party

Front 184

describe the one half qualified pension plan non-t-sub

Back 184

if T named beneficiary before sept 1, 1992 and did not change beneficiary after

Front 185

describe the pre-marriage irrevoc transfers non-t-sub

Back 185

ie a gift to a friend prior to marriage

Front 186

describe the irrevocable transfers made more than 1 year before death non-t-sub

Back 186

transfers where t did not retain power to revoke etc.

Front 187

describe transfers (irrevocable) made during the marriage non-t-sub

Back 187

transfer where t retains a life estate (if irrev transferred before sept. 1, 1992)

Front 188

What is the general rule of thumb for non-t-subs?

Back 188

if T did NOT have an interest (can't touch) property, it's gone, not a t-sub, EXCEPT for life insurance (can change beneficiary)

Front 189

How do you calculate the elective share estate

Back 189

generally, the full value of a t-sub is included, EXCEPT: a) qualified employee plan thing; b) survivorship estates involving T and third party; and c) survivorship estates involving T and surviving spouse

Front 190

discuss the survivorship estate calc involving T and third party

Back 190

dead spouse+ third party: use the "consideration furnished test"--surviving spouse has BURDEN of proving the amt of dead spouse's contribution to the asset

Hint 190

what is rationale: the surviving spouse is entitled to claim an elective share in his decedent spouse's property, NOT in someone elses, so have to separate the dead spouse's share from the third party's share

Front 191

discuss the survivorship estate calc involving T and surviving spouse!

Back 191

dead spouse+surviving spouse: then automatically, 1/2 is a t-sub, so 1/2 of the asset goes to surviving spouse! this is a fiction: so if it is an interest in a joint tenancy for example, then the joint tenancy is considered 'severed' so 1/2 goes to each spouse, and surviving spouse only gets 1/2 after t's death

Front 192

What will likely be the hypo on the exam about proving who owned what part of property for purposes of proving/burden on surviving spouse?

Back 192

it will always be either ALL or NOTHING b/c otherwise too complicated!

Front 193

For survivorshiop estates created BEFORE MARRIAGE invovling the T and a third party

Back 193

identified as dead spouse+3rd p, and premarriage property: the rule is that consideration furnished test applies, but ONLY to 1/2 of property's value as a t-sub (unlike full value if got it during marriage) b/c premarriage gifts are not t-subs; rationale is that when the T acquired property in joint tenancy, the T made an irrevocable gift of 1/2 interest to the other joint tenant (3rd p here), since this is premarriage irrev transfer, third party joint tenant's 1/2 is not a t-sub (so the most that could be included with a dead spouse+3rd p prior to marriage using the consideration furnished test is 1/2)

Hint 193

very difficult! this test applies to joint bank accts involving T and 3rd p, to extent that deposits made premarriage

Front 194

What if a spouse files for an elective share but all there is are a few bank accounts and then intestate property (property not devised via Will)?

Back 194

then the intestate property gets added into the calculations and then subtracted out as though the dead spouse 'gave it to her' via Will

Front 195

Basically, anything that was property shared b/t the spouses, property left to the spouse via Will, or property that the spouse gets via intestate succession:

Back 195

you add that all up, then subtract out anything that can be deemed as the dead spouse "bequeathing" the property to the spouse, so that the spouse doesnt get double 'recovery'

Front 196

What happens if after all the calculations the elective share is satisfied (meaning negative number left, or zero)?

Back 196

then the spouse has no right of election

Front 197

How do you calculate the pro rata shares of bequests that each beneficiary has to contribute to satisfy the surviving spouse's elective share?

Back 197

it's the amount you need to come up with divided by the amount of remaining assets after you subtract that amount out, to get a percentage; then you take that percentage of each beneficiary's bequest.

Front 198

Homer left $300k probate estate after paying debts etc; bequeaths stock worth $50k to Wife, $50k in cash to Son, $50k to his Brother, and $150k of residuary estate to Friend. No t-subs involved, W files for elective share, and the elective share amount is 1/3 of $300k, so $100k. Then W takes the stock worth $50k as a bequest, so you SUBTRACT the outright gifts from the elective share amount to get $50k, and then this must be satisfied by other beneficiaries. To figure out how much each person pays,

Back 198

you do $50k/$250k (amount need to come up with / the remaining assets after take out spouse's bequest)=1/5 (20%, so this must be paid from the remaining assets); If son bequeathed $50k, then he pays 1/5 of $50k=$10k; If brother bequeathed $50k, pays 1/5 of $50k=10k; If bequeathed Friend $150k, she pays 1/5 of $150k=$30k....then this all adds up to $50k, which is what the surviving spouse is entitled to!

Front 199

What happens to elective share trusts regarding the surviving spouse's right of election?

Back 199

for estates of decedents DYING on or after Sept 1, 1994, a life estate or other terminable interest will NOT satisfy the spouse's elective share entitlement (measure from date of decedent's death)

Front 200

How do you treat a trust if the surviving spouse files for an elective share?

Back 200

read the trust as though the surviving spouse predeceased the T, as though no life estate in surviving spouse, then accelerate to the remainderman (basically means 'kill the trust') this is to allow the spouse to get 1/3 of the elective share outright, so you accelerate to remainderman so that he can contribute to the net estate

Front 201

What if the amount given to the surviving spouse is equal to or greater than 1/3 the elective share estate?

Back 201

then don't kill the trust

Front 202

Can a spouse choose to waive the right of election?

Back 202

yes, with or without consideration, in a writing, signed and acknowledged before a notary public: either a) before or after a marriage, AND b) as to a particular Will or t-sub, or as to all Wills and t-subs in general (this waiver doesnt waive right to specific gifts under the T's Will; there must be a separate explicit waiver of specific bequests)

Front 203

Who has the right to election in the state of NY?

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only a spouse of a decedent who was domiciled in NY at the time of death has right to election, EXCEPT: the surviving spouse can claim elective share regarding T's REAL PROPERTY in NY if the T expressly states in his Will that the disposition of the prop is governed by NY law; then the entire estate is admitted to probate in whatever domicile of the T, but "ancillary administrative proceedings" will be required in NY to clear title of the NY property, under the SITUS RULE

Front 204

What if the T was a domiciliary of NY but owned real estate in Fla; does T's net probate estate include the value of the Fla real estate for W's filing of election purposes?

Back 204

yes, even though NY courts can't adjudicate ownership of the Fla property, NY rules govern the Will (and there will be an ancillary proceeding in Fla)

Front 205

What is 'exempt personal property'?

Back 205

this is items that the surviving spouse, or kids under 21 if no surviving spouse, get first (off the top) b4 doing any other estate work like wills, intestate, elective share stuff

Front 206

What kind of exempt personal property can the surviving spouse set aside?

Back 206

entitled to set aside property UP TO $92,500, including: a) car up to $25k, b) furniture, appliances etc (up to $20k), c) cash allowances (up to $25k, only time creditors cant touch this, except for claims for funeral expenses), d) animals, farm equipment etc (up to $20k), e) books, dvds, etc (up to $2,500)

Hint 206

remember: if this property is worth MORE than $92,500, then the excess must go back into the estate!

Front 207

What can disqualify a spouse from taking an elective share?

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DISMAL again (divorce, invalid divorce/annulment, separation decree, marriage is void, abandonment, lack of support

Front 208

For Powers of Appointment, who is the donor?

Back 208

the creator of the power

Front 209

For Powers of Appointment, who is the donee?

Back 209

person who is given the power to use

Front 210

What is Power of Appointment?

Back 210

an authority created in (or reserved by) a donee, enabling the donee to designate, within limits given by donor, the people who will take the donor's property and how they will take it

Front 211

Can a donor reserve power in herself?

Back 211

yes, she is both the donor and the donee of the power

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What happens if the donee fails to correctly exercise her power?

Back 212

"TAKERS IN DEFAULT" take the property

Front 213

What is the purpose of Power of Appointment?

Back 213

allows someone to look at facts in existence at a later date for distribution of property (did the grandkids grow up good?)

Front 214

What are the diff Classifications of POAs?

Back 214

these can all be combined into diff combinations: 1) General Power of Appointment, 2) Special Power of Appointment (aka "limited POA"), 3) Presently Exercisable Power of Appointment, 4) Testamentary Power of Appointment

Front 215

What is General POA?

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a general POA can be wholly exercised by donee in favor of the donee (appoint to herself), her creditors, creditors of her estate, or her estate (as if she owned the property herself)

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What is a Special POA?

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donee CANNOT appoint to herself, only a limited class of people she can appoint to (like "the issue of my brother")

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What is Presently Exercisable POA?

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donee can exercise power NOW, in her LIFETIME (might be in an intervivos trust) OR by her Will

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What is Testamentary POA?

Back 218

a donee can appoint ONLY by WILL

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In any POA question, what is the first thing you should do?

Back 219

classify the power

Front 220

If a Will creates a trust that says "Income to my daughter for her life, and on her death the principal shall be distributed to such persons as she appoints by Will, including her estate. If daughter does not exercise this power, the principal shall be distributed to her children" what does this create?

Back 220

the donor is the T, the donee is daughter, and she is the donee of a General Testamentary POA; daughter's children are "takers in default" of appointment. it's general b/c she can appoint the POA to anyone, herself creditors or her estate; testamentary b/c it says "on her death" and "as she appoints by Will"

Front 221

What happens if the donee of a general testamentary POA creates a Will that devises her residuary estate to her children, but doesnt mention her POA? Is she still considered to have "exercised her power" via the POA if she didnt mention the POA in the Will?

Back 221

Yes, even in a general residuary clause, this exercises all POAs held by donee UNLESS the donor called for its specific reference in the donee's Will

Front 222

What does it mean to specifically reference your POA in your Will (if it's required)?

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you must specifically refer to the POA, and mention where the powers came from ("these powers came from T...") not enough to just say "i devise my residuary and all property over which i possess a POA to my children..." must have more info about POA

Front 223

What if a Will says "the trustee shall pay income to my daughter for life, however, during her lifetime, dana can appoint the trust property to anyone, including herself, by a written instrument delivered to the trustee" what kind of POA is this?

Back 223

General presently exercisable POA; if she doesnt exercise it, on her death, trustee will either distribute principal of trust property to either her Will via residuary clause, or if no Will, via intestacy (has to go somewhere!)

Front 224

What if a donor gives the donee a general presently exercisable POA, with no requirement for specific reference of the POA in the Will, but the donee doesnt exercise the power until her Will?

Back 224

this is OK, allowed to do this, UNLESS: donor's Will expressly excluded the donee from exercising the POA via her own Will (donor can make these limitations)

Front 225

Can POAs possibly be T-subs? Once you figure out if it can, then what do you do?

Back 225

yes! ONLY ONE of them can--the General Presently exercisable POA, b/c the donee can appoint the power to anyone and get to the trust principal during her lifetime (can touch it); THEN: look to see who and when the property is appointed to, and follow the regular t-sub rules (like consideration furnished, marital 1/2 rule, etc)

Front 226

What POAs CANNOT be t-subs?

Back 226

general testamentary POA and special POA; can't get to these during their lifetime, and for special can't get to it ever b/c only goes to a specific class of ppl

Front 227

What types of property of the donor via POAs can creditors of the donee get to?

Back 227

general presently exercisable POA, b/c same issue as elective share, if she can get to the assets as if she owned them herself, then creditors can too; the statutory spendthrift rule in NY protects trust income interests, via statute, so any income beneficiary cannot transfer her trust interest, and beneficiary's creditors can't touch it, BUT if presently exercisable general POA can appoint to herself at any time, then property covered by this power is subject to the payments of the claims of the donee's creditors or her estate, so spendthrift protection NOT afforded here

Front 228

What types of property of the donor via POAs can creditors of donee NOT get to?

Back 228

special presently exercisable POA and used power via Will: she can't get to the assets herself, limited to special class of ppl so can't appoint the power to herself, therefore creditors can't get to it; general testamentary POA: creditors CANT get to this either, EXCEPT IF: 1) the donee was also the donor (rare) and gave the POA to herself, so if she can get to it then creditors can OR 2) donee puts it in estate, exercises in favor of her estate, then creditors can get to this

Front 229

With POAs and RAP, what are the various doctrines you have to keep in mind?

Back 229

RAP (dealing with vesting); NY Suspension Rule (possible suspension of ability to transfer a fee simple, look for identified persons who could together convey fee simple w/in LIB plus 21 years); Statutory Spendthrift Rule (income beneficiaries cannot assign or convey their income interest); NY Perpetuities Reform Statute (saves gifts from RAP and Suspension Rule violations by AUTOMATICALLY reducing age contingencies down to 21 years); refer to other reform statutes in NY distinctions supplement

Front 230

What are the steps to analyze POA and RAP?

Back 230

Step 1: identify the type of power in POA; Step 2: is the power itself valid? (will never be the problem); Step 3: most important! are the interests created by the power valid?

Front 231

Describe step 2, how do you determine if a special or general TESTAMENTARY POA is valid? (in context of remainder interests)

Back 231

must be EXERCISED within a LIB plus 21 years: rule of thumb is that if the power is given to a LIB at the time the power is created, the power is valid

Front 232

Describe step 3, how do you determine if the INTERESTS created by a special or general TESTAMENTARY POA are valid? (in context of remainder interests)

Back 232

interests created by the exercise of a special POA or general testamentary POA are measured from the DATE of the INSTRUMENT CREATING the power, NOT the date of the power's exercise

Front 233

What is the donee's role in relation to the donor under NY law? (in context of remainder interests)

Back 233

treat donee as the donor's agent, who merely 'fills in the blanks' in the donor's Will or trust; so if a T gave the donee a life estate and then either a general testamentary POA or special POA, and then on donee's death she left a Will distributing the property "outright to her kids as live to attain 30", then you fill in the blanks for the donor and make it as though he said "to daughter for life, then to such of her children as live to attain the age of 30"

Front 234

What happens if after filling in the blanks, the remainder interest violates RAP? (in context of remainder interests)

Back 234

aided by the "second look doctrine"/wait and see for GENERAL TESTAMENTARY POA or SPECIAL POA; you just wait to see at what time the POA is EXERCISED and what facts are in place at that time (for ex, in previous example see if: any of the kids reach 30 at the time the POA is exercised, in this case when the donee dies b/c it's via will)

Front 235

So in the previous example, if the kids of donee are 9 at the time of donee's death, what happens if you wait and see? (in context of remainder interests)

Back 235

that means that within 21 years of the date of exercising of the POA (exercised on date of her death via Will), the kids will reach the age of 30 and their interests will vest!

Front 236

What happens in the previous example at the donee's death, that some of the kids are 9, but one child is younger than 9? (in context of remainder interests)

Back 236

the whole thing is void b/c zach won't reach the age of 30 within 21 years of the exercise of the POA (which is now b/c donee died); BUT the NY Reform Statute comes in to reduce age contingency down to 21, so OK!

Front 237

Describe step 2, how do you determine if a general presently exercisable POA is valid? (in context of income interests)

Back 237

to be valid, a general presently exercisable POA must be certain to be ACQUIRED (not exercised) within LIB plus 21 years (usually ok b/c a live person will acquire it in her lifetime, wont give it to a person not in being at the time!)

Front 238

Describe step 3, how do you determine if the INTERESTS created by a general presently exercisable POA are valid? (in context of income interests)

Back 238

to be valid, measure from the date of the instrument EXERCISING the power, NOT from creation of the instrument; here with general and presently exercisable POAs we DO NOT FILL IN THE BLANKS or apply second look b/c it's presently exercisable (although if the donee still chooses to exercise it via Will, then just look at that; remember that the donee can exercise it however she wants if it's a general presently exercisable POA)!!

Front 239

What is the rule of thumb when there are two income interests, generally?

Back 239

depends: a) an income interest built upon a prior income interest, the second income interest is usually valid; b) an income interest built on a prior income interest CONDITIONED upon reaching a certain age, the second interest is usually void, but saved by NY reform statute which forces vesting within LIB plus 21 years

Front 240

What is the rule of thumb when there are two income interests, regarding the suspension rule?

Back 240

if you have an income interest built on a prior income interest, the second income interest is usually invalid re the suspension rule

Front 241

What is one example of when an income interest (or multiple income interests) violates the suspension rule?

Back 241

if there are unborn beneficiaries

Front 242

Under the Ny statutory spendthrift rule, where an income beneficiary cannot assign his income interest how does this apply when the income beneficiary is an unborn child?

Back 242

an unborn child could not join with others in a theoretical conveyance of his interest within LIB plus 21 years

Front 243

Regarding Mistake: absent suspicious circumstances, what will be a CONCLUSIVE PRESUMPTION about a Will?

Back 243

that the T read the Will and intended its contents. the plain meaning of the Will wont be overturned by extrinsic evidence (ex. T wanted to give a friend 30 bottles of champagne, but the person drafting the Will for T accidentally put in 20 bottles, and T didnt notice when she signed the Will--the beneficiary will only get the 20 bottles b/c only look at plain meaning of the Will and wont be overturned by extrinsic evidence) policy is to avoid fights

Front 244

What is a latent ambiguity in a Will?

Back 244

a latent ambiguity is a misdescription, error that isnt evident by looking at the Will (like putting in a slightly wrong name and you can't tell who the real beneficiary is)

Front 245

Is extrinsic evidence admissible in a latent ambiguity? If so, what types?

Back 245

yes, to clarify or find meaning of T's words: 1) "facts and circumstances" evidence IS admissible (like about T's family, his habits, etc), 2) evidence of T's declarations of intent to third parties IS admissible, 3) evidence of the T's statements to the attorney prepared the Will IS admissible

Front 246

What happens if extrinsic evidence does NOT cure the ambiguity?

Back 246

gift fails b/c no ascertainable beneficiary

Front 247

What is a patent ambiguity in a Will?

Back 247

obvious error on the face of the Will ("I give twenty-five dollars ($25k) to my son")

Front 248

Is extrinsic evidence admissible in a patent ambiguity? If so, what types?

Back 248

yes, 1) "facts and circumstances" IS, 2) declarations of intent to third parties IS NOT (don't want statements of dead T to other ppl contradict the Will language), 3) T's statements to attny preparing the Will IS

Front 249

What is precatory language and what does it do?

Back 249

"i wish" "i hope" does NOT make the gift mandatory and will be troublesome when trying to devise it

Front 250

What are conditional Wills?

Back 250

Will expressly provides that it will be operative only if some condition is met (ex. "If anything happens to me while on vacation next week, i leave all my property to my friend dave"); if the condition isnt met then probate will likely be denied, but could argue it merely reflects the T's motive for making the Will, not a condition upon the beneficiaries getting the property)

Front 251

What is a joint Will?

Back 251

2 people's Wills are in 1 document (dumb idea!)

Front 252

What issue usually comes up with joint Wills?

Back 252

whether a joint Will executed via a contract, that the survivor would not revoke the joint Will after death of the other spouse; the only way to make a contract that creates a Will or a contract not to revoke a Will is through express statement of intent that the Will's provision are intended to constitute a contract b/t the parties

Front 253

Can a court find that a k of non-revocation was intended merely because the Joint Will used possessive pronouns (we, us, our)?

Back 253

no!

Front 254

What happens if the joint Will is contractual and the survivor breaches by executing a later Will with inconsistent provisions?

Back 254

Step 1: probate the new Will even though Will 1 is written as a contract (the law of Wills controls, not contracts); Step 2: impose a constructive trust in favor of the original intended beneficiaries...why? b/c there may be assets in Will 2 that are not in Will 1 going to other beneficiaries, but still need to keep the contract to the first beneficiaries

Front 255

Can a contractual joint Will be revoked?

Back 255

yes, but only by agreement b/t both parties WHILE THEY ARE BOTH ALIVE; the deceased spouse's estate cannot revoke a contractual Will on behalf of the deceased spouse

Front 256

What are the requirements for a T to have capacity?

Back 256

must have sufficient capacity to: 1) understand nature of the act (know he was writing a Will), and 2) know nature and approximate value of his property, and 3) know the "natural object of his bounty" (he must know his family members etc), and 4) understand dispositions, the gifts he was making

Hint 256

HUGE TOPIC!!

Front 257

What is the threshold for finding that the T lacked capacity?

Back 257

capacity to make a Will requires less capacity than required for any other legal instrument, so a court could find that a T executed the Will during a LUCID INTERVAL and thus satisfied 4 reqs for showing capacity at that time

Front 258

What happens if a T is suffering from an insane delusion?

Back 258

T is generally of sound mind but has persistent belief in supposed facts that are against all evidence, probability, and control, which cause or effect the T's testamentary act...paranoia or thoughts of conspiracy are examples (i guess this is a defense that a will contestant can raise?)

Front 259

If a Will contestant claims that the T made the Will under Undue Influence, what does he have to prove?

Back 259

Will contestant has the burden to prove all 3: 1) the existence and exertion of an influence, and 2) the effect of such influence was to overpower the mind/will of T, and 3) the product is a Will or gift in a Will which would not have happened BUT FOR that influence (basically the free agency of the T must be destroyed to the point where it's not the Will of the T really, but the Will of the person exerting the influence)

Front 260

Even though undue influence is proven by circumstantial evidence, what is definitely NOT sufficient by themselves to constitute undue influence?

Back 260

a) the opportunity to exert influence (like a child who did so much for her mother and got the most $); b) susceptibility to undue influence due to age or illness (old, broken hip, took valium); c) unequal dispositions (some kids getting more than others not enough)

Front 261

When is there an INFERENCE of undue influence?

Back 261

the Will contestant can satisfy the burden of proof by inference of undue influence if both of these things: 1) the Will makes a gift to a person in a confidential relationship w/ T, AND 2) that person was active in preparing the Will...UNLESS: the inference is rebutted

Front 262

What happens if a Will makes a bequest to the attorney who drafted the Will?

Back 262

even if no objections by anyone, the Surrogate's Court automatically investigates if drafting attorney's gift was voluntarily made: called the Putnam Scrutiny (like the Miranda of Wills!)

Hint 262

tested on a lot!

Front 263

In NY, if a drafting attorney is appointed as executor of an estate, what must the attorney do?

Back 263

must give WRITTEN disclosure to the T that: a) any person can be named an executor, not just an attorney, AND b) executor receives statutory commission (% depending on value of the estate), AND c) attorney is also entitled to legal fees for representing the estate; then the T must SIGN a written acknowledgment of the disclosure in a form set out in the statute, and this must be in the presence of 2 witnesses

Front 264

What if the drafting attorney who is appointed executor fails to comply with the statute?

Back 264

the only punishment is that the attny will only receive 1/2 of the statutory commission he's entitled to (this applies to the estates of any decedent who died after 1996, regardless of when the decedent's will was executed, and even if the will was executed in another jurisdiction; thus the statute imposes a duty on attorneys to contact clients who signed their wills before the statute's enactment, but authorizes the court to waive this requirement for good cause shown

Front 265

What are no-contest ("in terrorem") clauses?

Back 265

clause in a Will that says if "anyone objects to my Will, they will get nothing"

Front 266

What is the treatment of in terrorem clauses in most states?

Back 266

given full effect, UNLESS court finds that the contest was brought in good faith and with PC

Front 267

What is the treatment of in terrorem clauses in NY?

Back 267

clause is given full effect, regardless of PC to challenge the Will (they hate fights and the T should be able to protect his testamentary plan and reputation against post death attack)

Front 268

Are there any exceptions to the in terrorem clause rule in NY?

Back 268

yes, an in-terrorem clause will NOT be enforced if the Will contest is: a) claiming forgery or Will was revoked by a later Will and only if PC (this does NOT apply if the Will was destroyed by physical act, must be a Will 2); or b) contest was filed on behalf of an infant/incompetent (just b/c a third party takes action shouldnt forfeit); or c) construction proceeding to construe the Will (here not challenging Will, just asking court to determine interests); or d) objection to jurisdiction of the court (merely stating should be probated in diff state)

Front 269

What are "safe harbor" provisions?

Back 269

a person who is considering contesting a Will that contains an in terrorem clause may examine via depositions etc.: 1) person who prepared the Will, 2) attesting witnesses, 3) Will proponents (they want the Will probated), 4) nominated executors. This list is not exhaustive. EXCEPTION to safe harbors: the Will can expressly prohibit safe harbors in its in terrorem clause

Front 270

What is the Powers of Attorney?

Back 270

written authorization for an agent (attorney-in-fact) to act on behalf of the grantor of power; may be general or specific, many variations possible; there are 1) non durable powers of attorney: power of attorney that is REVOKED by operation of law by either grantor's death or incapacity, remains valid until NOTICE of death etc is received by attorney-in-fact; and 2) durable powers of attorney: extends beyond grantor's incapacity UNLESS it has SPECIFIC LANGUAGE that it is TERMINATED by the grantor's incapacity (this changed, used to be opposite)

Front 271

What are healthcare proxies?

Back 271

type of durable power of attorney, appoints agent to make health care decisions on behalf of grantor; not effective UNTIL grantor becomes INCAPACITATED and remains in effect despite incapacity; must 1) be in writing, 2) signed by grantor or another at his direction, and 3) WITNESSED by at least 2 adults. Must state that grantor executed the proxy free of duress

Front 272

What is a living Will?

Back 272

states desires if become ill or persistent vegatative state, regarding administering 1) life sustaining procedures, 2) artificial nutrition/hydration, and 3) treatment to alleviate pain. NY court of appeals: patient's right to decline treatment is guaranteed by common law!