Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
65 Cards in this Set
- Front
- Back
|
Order of appointment: administrator of intestate estate
|
Surviving spouse, children, grandchildren, parent
|
|
|
Intestate distribution when T dies with children and issue of predeceased children
|
Estate goes to alive children and issue of dead children by representation - per capita at each generation
|
|
|
Per stirpes
|
Issue of predeceased children take what predeceased child would have taken if alive
|
|
|
Do adopted children have inheritance rights against birth parents?
|
Only if they're adopted by spouse of birth parent, or by relative of birth parent (child takes under birth relationship unless decedent was adopting parent, in which case he takes under adoptive relationship)
|
|
|
Who can non-marital child inherit from?
|
Mother, mother's family, and father and father's family if paternity is established
|
|
|
How to establish paternity
|
During father's life;
Legitimation by marriage, order of filiation in paternity suit, father files witnessed/acknowledged affidavit with Putative Father Registry Before or after father's death: Clear and convincing evidence of paternity (DNA, open and notorious acknowledgment) |
|
|
When is spouse disqualified from taking intestate share?
|
DISMAL
Divorce (final decree or annulment) Invalid divorce procured by surviving spouse Separation decree (NOT agreement) Marraige was void Abandonment / lack of support |
|
|
What do you do if spouse is disqualified from inheriting intestate share?
|
Treat her as if she predeceased decedent
|
|
|
What do you need to prove advancement in NY?
|
Contemporaneous writing made at time of gift and signed by donor
|
|
|
What do you need for valid disclaimer?
|
In writing, signed and acknowledge
Affidavit stating that no consdieration was received Filed with Surrogate Court w/in 9 months of death It's irrevocable Treat disclaimer as if he predeceased decedent, or died one day after to avoid inequitable result |
|
|
Validity of wills / codicils
|
18 years old, in writing, signed by T, at the end, in presence of each witness (or acknowledged in presence), published, 2 attesting witnesses (don't need to be in T's presence or in each other's presence), completed within 30 days of first witness's signature
|
|
|
Who bears burden of proof to show validity of will?
|
Proponent - testimony of one witness sufficient
|
|
|
What is attestation clause?
|
prima facie evidence of facts presented, but NOT substitute for live testimony
|
|
|
What is self-proving affidavit?
|
Substitute for live testimony, though if interested party objects, formal rules of proof of due execution apply
|
|
|
Interested Witness Statute
|
Validity of will not affected, but gift to witness presumptively invalid unless (i) supernumerary rule applies or (ii) interested witness is also intestate distributee, in which case he takes "whichever is least"
|
|
|
What wills are valid in NY?
|
Any will if it's valid where executed, under NY law, or where T was domiciled at date of death OR execution
(Foreign wills act) |
|
|
Do intended beneficiaries have malpractice claim against attorney for executing will improperly?
|
No, but executor does b/c he's in privity
|
|
|
How do you revoke a will?
|
By physical act + intent to revoke, or by executing later will/codicil with appropriate formalities
|
|
|
What if will was last seen in T's possession, but cannot be found after death?
|
Presumption of destruction + intent to revoke
|
|
|
Is there partial revocation by physical act in NY?
|
No - original will probated in its entirety
|
|
|
What is DRR?
|
Dependent Relative Revocation, probably not possible in NY
Permits revocation of later will to be disregarded (so later will probated) if T's revocation was based on mistake of law and disposition of later will comes close to what T intended |
|
|
Lost Wills Statute
|
Proponent must show lost will was duly executed, not revoked, and that the Will's provisions are "clearly and distinctly proven by each of at least two credible witnesses, or by a copy or draft of will proved to be true and complete"
|
|
|
What happens if beneficiary dies during T's lifetime?
|
Gift fails unless anti-lapse applies
|
|
|
NY Anti-Lapse Statute
|
Gift to person who predeceased testator does no fail if predeceased beneficiary was ISSUE or SIBLING AND that predeceased beneficiary leaves issue who survive T
|
|
|
Does a condition ("if he survives me") or anti-lapse trump?
|
Condition
|
|
|
What happens if some members of a class predecease T?
|
Surviving members take in equal shares, unless anti-lapse applies
|
|
|
What happens if class members are individually named and one predeceases T?
|
That person's share goes into residuary estate unless anti-lapse applies
|
|
|
Simultaneous deaths rule
|
RUSDA: If there's no clear and convincing evidence that one person outlived another by more than 5 days, the property of each person is distributed as though he outlived the other
RUSDA severs right of survivorship - proeprty passes as though tenancy in common were held |
|
|
What if T marries after execution of will?
|
No affect on validity of will
|
|
|
What if T unmarries after execution of will?
|
If final, all gifts and appointments to spouse are revoked by operation of law
|
|
|
Pretermitted child rules
|
T has 1+ children when will executed, and
No provision made for any children: pretermitted gets nothing Class gift made to children: pretermitted shares in class gift Specific limited provision to children: pretermitted gets intestate share If T had no chilren when will was executed: pretermitted takes intestate share |
|
|
Negative bequests rule in NY
|
Words of disinheritance are given full effect in partial intestacy - treat disinhereted party as if he predeceased T
|
|
|
Can extrinsic documents be incorporated into a will in NY?
|
No, everything must pass 7 point test
|
|
|
What is demonstrative legacy?
|
Specific source designated from which amount should be paid ($5MM from sale of GM stock)
|
|
|
What is general legacy?
|
Money gift
|
|
|
Order of abatement
|
Intestate and residuary property
General gifts (pro rata) Demonstrative gifts (pro rata) Sepecific gifts Items that qualify for estate tax marital deduction |
|
|
What gifts ademe?
|
Only specific gifts; demonstrative legacies will turn into general legacies if source of gift is insufficient
|
|
|
What is exoneration and does it exist in NY?
|
Beneficiaries right to have mortgages on specific gifts paid off from residuary estate.
NOT AVAILABLE in NY unless Will specifically directs |
|
|
What kind of gift is stock?
|
Public stock: general - does NOT ademe unless T uses language "My stock," in which case it will ademe
Close corp. stock: specific, will ademe Stock split: regardless of "my" language, beneficiary gets all shares after split |
|
|
Probate assets
|
Those assets that T held in his nam alone
|
|
|
What is elective share?
|
Greater of $50k or 1/3 of augmented estate (probate assets + T-subs)
|
|
|
T-subs
|
Testamentary Substitutes need LEG UP
Totten trusts Survivorship estates Lifetime transfers with strings attatched Employee pension, profit sharing and deferred compensation plans Gifts made within one year of death (if greater than $13k or causa mortis of any value) US Gov't Bonds Powers of Appointment (Generally, presently exercisable) NOT LIFE INSURANCE |
|
|
Is life insurnance a t-sub?
|
NO
|
|
|
How must do you include as a t-sub for survivorship or joint property held between T and third party?
|
Consideration furnished test: surviving spouse must prove amount that dead spouse contributed
|
|
|
How must do you include as a t-sub for survivorship or joint property held between T and spouse?
|
1/2
|
|
|
How do you calculate net elective share (amount spouse actually gets)?
|
1/3 of augmented estate ("Elective Share")
less amount that passes to spouse by will less 1/2 of joint / survivorship accounts |
|
|
How do you satisfy elective share?
|
All beneficiaries contribute pro rata
(net elective share / amount remaining in estate = percentage that each must contribute of his/her gift) |
|
|
What if T's will contains elective share trust?
|
Kill the trust, give principal/property to remaindermen and calculate elective share normally
Spouse needs 1/3 OUTRIGHT |
|
|
Can right to receive elective share be waived?
|
Yes, either before or after marriage, with or without consideration
|
|
|
What is exempt property?
|
Items that surviving spouse gets "off the top" before any distributions
Totals $92.5k |
|
|
Disqualifications for taking elective share
|
DISMAL
|
|
|
Can you callenge a will for mistake?
|
No, it's conclusively presumed that T read his will and intended its consequences - plain meaning can't be overturned by extrinsic evidence
|
|
|
When can you challenge a will?
|
Latant ambiguity (not evident on face of will): with extrinsic evidence to clarify T's meaning
Patent abiguity (obvious on face): extrinsic evidnce admissible EXCEPT for T's declarations of intent to third parties |
|
|
What do you do if a will is conditional?
|
Argue both sides: will is conditional, OR alleged condition merely reflects T's motive for making the will
|
|
|
When can you make a contrct to make a will?
|
When contract not to revoke is established by espress statement of intent that Wills provisions constitute K between parties
|
|
|
What if party breaches contract to make a will?
|
Probate later (unlawful) will, which may dispose of assets that aren't provided for in previous will, adn then impose constructive trust in favor of original intended beneficiaries
|
|
|
What is capacity to make a will?
|
Understand nature of act, nature and approximate value of property, know the natural object of your bounty, and understand dispositions you're making
Will capacity is less than legal capacity |
|
|
What can you attack a will for vis-a-vis capacity?
|
Insane delision (T believes in facts that are against all evidence, probably and control, and cause or affect T's testamentary act)
Undue influence (contestant has burden of showing existence and exertion of influence, that affect of such influence was to overpower mind and will of T, and that challenged gift would not have been made but for influence) |
|
|
Evidence that's insufficient (alone) to show undue influence
|
Opportunity to exert influence
Susceptibility to influence b/c of age or illness Unequal dispositions |
|
|
When is there an inference of undue influence?
|
Will makes a gift to one in a conditential relationship who was involved in preparing will
|
|
|
What must attorney/drafter who's beneficiary show to get gift?
|
that gift was freely made with no undue influence
|
|
|
What must drafting attorney whos named executor do?
|
Give T written disclosure that (i) anyone can be named executor, (ii) executor receives statutory commission, and (iii) attorney will also be entitled to legal fees for representing the estate
Must be signed in presence of 2 witnesses If attorney fails, he'll only receive 1/2 executor commission |
|
|
Is no contest clause valid in NY?
|
Yes, even if challenger has PC to challenge
|
|
|
What are exceptions to no context clause?
|
Claim of forgery if there's PC
Contest filed on behalf of infant / incompetent Contest is just a construction proceeding to construe will Contest is an objection to jurisdiction of the court |
|
|
Even if will contains no contest clause, what can you always examine in discovery?
|
Person who prepared will
Attesting witnesses Will proponent Nominated executors |
