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133 Cards in this Set
- Front
- Back
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what's Probate?
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1. Refers to Surrogate’s Court proceeding in which
a. It is judicially determined that the decedent left a validly executed will distributees are determined b. A personal representative is appointed to administer the decedent’s estate |
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what 's some one named in a will to do a probate?
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executor
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what's someone appointed by the ct to do probate?
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administrator
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what's Order of priority for appointment as administrator ?
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(i) surviving spouse, (ii) children; (iii) grandchildren; (iv) mother or father; (v) any other distributee
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what's the requirement for Validly Executed Wills?
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1. Capacity to make a will
2. Signed by T 3. T’s signature must be at the end THEREOF 4. T must sign will in presence of each W 5. Will publication 6. 2 attesting W’s 7. Execution ceremony must be completed within 30 days |
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Does Signed by T (or someone at T’s direction & in his presence) need to be
legible in order for probate? |
no
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Does Guiding T’s hand for signature allowed for a valid will?
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as long as it was T’s volitional act
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Does Proxy signature allowed?
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yes.such person (i) must also sign her name; (ii) cannot be counted as one of the two needed attesting witnesses
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Does Words following the signature ignored ?
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Yes,BUT the entire will is invalid if the matter below T’s signature is so material that it is necessary to complete the dispositive plan
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Does exact order of signing between testator & witness critical?
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no, when will execution ceremony is contemporaneous transaction
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Does W need sign in presence of W?
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no
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Does T must sign will in presence of each W?
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yes
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what's the result if T signs before or in presence of only one W?
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T must acknowledge signature before the other witness
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If one W signs first, and T signs a week later, is this ok?
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this is no good because the two signatures are not contemporaneous
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what's Will publication ?
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T must communicate to W’s that they’re witnessing a will
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what's the requirement of 2 attesting W?
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NO need to sign in each other’s presence; need only sign within 30 days of each other
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When does Execution ceremony must be completed?
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within 30 days – starts to run when 1st W signs
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what's Codicil?
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a later amendment or supplement to a will
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what's the requirement of codicil?
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must be executed with same formalities as a will
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what's Burden of Proof in probate?
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as to due execution is on will proponent
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who is Will Proponent?
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the one offering the will for probate, usu. The executor
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what If will not self-proved in proof of will?
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both attesting witnesses must testify as to facts necessary to show due execution
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what if one witness is dead?
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testimony of other witness suffices
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what if none of the witnesses is able to testify?
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– proof of signature of testator & one witness
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what's Attestation clause?
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a. Appears below T’s signature line & above W’s signature line
recites all the elements of due execution |
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Does Attestation clause legally required? what's it's importance?
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b. NOT legally required but valuable because it’s prima facie evidence of facts recited
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when 's Attestation clause helpful?
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Helpful when – (i) W has a bad memory, or (ii) to rebut hostile W
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what's Self-proving affidavit?
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a. W’s sign sworn affidavit that recites all statements they would make if called to testify in court
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when does Self-proving affidavit required? what's the function of self- proving affidavit?
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(i) Usually signed at the same time as the will
(ii) A substitute for W’s live testimony |
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what's the function of affidavit?
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b. Affidavit serves the same function as a deposition or interrogatory
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what's interested witness statute?
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a. Fact that a will beneficiary is an attesting W never affects the validity of the will
b. BUT, bequest to the Beneficiary-W is void unless exception. |
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what's Supernumerary rule
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there were 3 witnesses, & the other 2 were disinterested
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what's this?Witness would be a distributee if T had died without a will
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the exception to the rule
bequest to the Beneficiary-W is void |
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Witness would be a distributee if T had died without a will. what does the witness get?
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W-beneficiary takes the lesser of – (i) the amount given by will, & (ii) the intestate share
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Does W is qualified to serve (& be compensated) as executor if named so?
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Yes, because only beneficial gifts trigger the interested witness rule, NOT earned compensation
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what's Foreign Wills Act
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a. Will is admissible to probate if validly executed under – (i) NY law, (ii) law of the state where it was executed, regardless of T’s domicile at that time, OR (iii) law of the state where T was domiciled
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what's the domicile law of state can be used to determined the foreign will act?
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either when the will was executed or at death
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Once will is admitted to probate,what law governs construction and application of its provision?
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NY law governs
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If lawyer prepares a will for T & supervises its execution, BUT does not have T declare document is a will, what's the result?
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the will is denied probate, & T’s estate passes by intestacy
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Can Intended beneficiaries CANNOT sue lawyer for negligence?
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no, , because of lack of privity of K
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what's Lawyer’s duty
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only with the party who contracted for his services
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What Constitutes a Valid Revocation?
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a. Subsequent testamentary instrument ,expressly revoking the first will.
b. Physical act( burning, tearing, cutting, canceling, obliteration, or other act of mutilation) AGAINST the WORDS |
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Does revoke the relevant provisions affected by the codicil are revived by revocation of the codicil?
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no.
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who has the burden of proof the will was revoked?
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on the party contending that the will was revoked
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what's Revocation by Implication
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− T executes 2 wills,inconsistent provisions
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what to do when T executes 2 wills?
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to the extent possible, read the 2 instruments together
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how to read when T executes 2 wills?
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a. 2nd will treated as a codicil – 1st will revoked only to the extent of inconsistent provisions
b. BUT, if 2nd will wholly inconsistent – 1st will is revoked by implication |
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what's the Act by Testator to revoke a will?
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b. Writing of revocation & intent to revoke
a. Physical acts – such as burning, tearing, cutting, or other act of mutilation AGAINST WORDS |
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how to prove Intent to revoke?
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(a) By testimony of witness that saw the writing; or
(b) Anything done to T’s signature (e.g., cross it out with big X) |
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what's revocation by proxy's requirement?
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a. T must have requested it,
b. Physical act must take place in T’s presence, & c. There must be 2 witnesses to the act |
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How many people does revocation by proxy requires?
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– T, 2 Ws, person conducting physical act
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(i) Will was last seen in T’s possession or control & is not found after T’s death
(ii) Will was last seen in T’s possession or control & is found mutilated after T’s death what's the effect? |
Presumption that T revoked the will by physical act
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how can presumptions of revocation can be rebutted?
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(i) Will was not in testator’s possession (e.g., the will was left with attorney for safekeeping); or
(ii) Will was destroyed by accident |
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if will was last seen in possession of someone adversely affected by its contents, what's the result?
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Neither presumption arises
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Does Words added to a will after it is signed & witnessed effective?
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no
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what's the result for Words added to a will after it is signed & witnessed ?
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(ii) Disregarded as unattested words & will read as originally written
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if changes made immediately before T signed the will and attested, what's the result?
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changes valid because they would be part of duly executed will
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what's the method that T can make changes in his will
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(i) making a new will, or (ii) codicil
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(i) Once a 2nd will contains language revoking earlier wills, what's the result of the early will?
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the earlier will is legally dead & cannot be revived simply by destroying the later will
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how can early will be revive?
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(ii) Earlier will can only be revived in 1 of 2 ways
(a) 1st will is re-executed – signed again by T & 2 W’s; or (b) Doctrine of “republication by codicil” – execution of a codicil that incorporates by reference the prior will or one or more of its provisions |
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permits a revocation to be disregarded when premised, conditioned, dependent upon, a mistake of law as to the validity of another disposition. what's this?
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b. Dependent Relative Revocation
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what's the requirement of proof of lost will statute?
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(i) Due execution must be proved
(ii) Must be established that the will was not revoked (iii) All provisions of the will must be clearly & distinctly proved by each (a) 2 credible W’s (b) By a copy or draft of the will proved to be true & complete |
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how to prove a will was not revoked?
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the “lost will” proponent must (i) overcome the presumption of revocation that arises from the will’s non-production, or (ii) prove that the revocation should be disregarded because of DRR)
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what's the result of Testator Marries After Will Is Executed?
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− Marriage following execution of will has NO effect on the validity of the will, but it may affect the gifts and dispositions under the will by operation of the elective share statute
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if Testator Is Divorced After Will Is Executed, what the result for former spouse and spouse's relative?
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a. All gifts & fiduciary appointments in favor of the former spouse are revoked by operation of law – effect as though former spouse predeceased T
b. BUT, gifts to former spouse’s relatives are NOT revoked by the divorce |
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does decrees of separation trigger the revoking statute?
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ONLY divorce or annulment (need final decree) –
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what's the decrees of seperation's result FOR INTESTATE DISTRIBUTION AND ELECTIVE SHARE?
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they are barred
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if couple reconcile and remarry,
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all provisions are restored
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what's the guardianships of children by divorced spouses when the will 's revoked?
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does NOT affect.
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does revocation of wills affect nonprobate transfers?(such as life insurance)
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no
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what's the requirement for being "pretermitted"?
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a. Child is born or adopted after will is executed, AND
b. Child is “unprovided for by any settlement,” c. Child is not provided for or mentioned in the will |
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what's Pretermitted Child Statute?
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Child Born or Adopted After Will Is Executed
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is there protection to children alive when will was executed under the pretermitted child statute?
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no
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what does pretermitted children act allow child born or adopted after will executed get?
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a. Takes nothing – if the existing children were not provided (equal footing)
b. Takes same share as siblings as though a class gift is made – if substantial gifts were provided c. Takes intestate share – if only a limited provision (give $1) was provided to existing children |
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If the other mentioned children are given unequal amounts in the will as a class gift, how is the adopted child's gift calculated?
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add the amounts together and give the afterborn child a share by means of proportional take-out of each mentioned child’s share.
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when Testator had NO other children when will executed under the pretermitted child statute, what does the child born or adopted after the will take?
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− Takes intestate share
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the terms of an extrinsic document, not present when the will is signed, can be incorporated by reference under what circumstance?
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a. The document was in existence when the will was signed,
b. The will shows an intent to incorporate the document’s terms, & c. The extrinsic document is clearly identified by language in the will |
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does ny recognize “incorporation by reference”
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no.a. All wills must be signed by T & witnessed by 2 W’s
except armed forces & mariners) |
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what's ny's exception for “incorporation by reference” ?
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“pourover” gifts by will to a lifetime trust
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T’s will that bequeaths “the automobile that I own at death” to A; shortly before death, T trades his Chevy for a Mercedes , what does a take?
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A takes the Mercedes
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what's the exception for acts of independent significance?
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title documents, (2) deeds, (3) stock certificates, & (4) bank passbooks
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what's the range of acts of independent significance?
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(ii) For contents – ONLY tangible property & cash
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what are Nonprobate Assets?
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interests in property that are NOT subject to disposition by will, & are NOT part of the probate estate for purposes of administration
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what are major type of nonprobate asset?
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a. Property passing by right of survivorship (e.g., joint bank account, etc.)
b. Property passing by K – here K governs, not the will c. Property held in trust, including revocable trusts d. Property over which decedent held a power of appointment |
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When a will beneficiary predeceases T, what's the result?
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the gift lapses
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can you make a gift to a dead person?
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no, UNLESS the gift is saved by the state’s anti-lapse statute
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when does anti-lapse statute apply?
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2. Anti-lapse statute applies ONLY when
a. Deceased beneficiary b. Leaves issue who survive T |
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who is Deceased beneficiary?
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(i) issue; (ii) brother, or (iii) sister
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does the deceased beneficiary’s will relevant to anti-lapse statute?
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the deceased beneficiary’s will is irrelevant because the statute names the substitute taker
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what would precludes application of the Anti-Lapse Statute?
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gift conditioned on survival
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if T’s lapsed issue was adopted out, can the issue of such lapsed person still be saved by the anti-lapse statute ?
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yes, if that T specifically named the lapsed person in his will.
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what's the Surviving Residuary Beneficiaries Rule?
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if T’s residuary estate is (i) devised to 2 or more persons, (ii) the gift to 1 of them fails or lapses for any reason, and (iii) the anti-lapse statue does not apply, the other residuary devisees take the entire residuary estate, in proportion to their interests in the residue
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what's the effect for anti-lapse statute and surviving residuary beneficiaries rule?
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the Anti-Lapse Statute trumps the Surviving Residuary Beneficiaries Rule
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what's Class Gift Rule
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if a will makes a gift to a group of persons generically described as a class (e.g., “children,” “brother & sisters,” etc.), & some class member predeceases T, the class members who survive T take (absent contrary provision)
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when to Determining the takers of a class gift?
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read the will as of T’s death
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I devise Blackacre to A, B, & C, the children of my brother” what's the result?
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the will makes gifts of 1/3 shares to 3 individuals; if A predeceases T, his 1/3 share lapses, falling into the residuary estate
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what's the result with anti-lapse and class gift?
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the Anti-Lapse Statute trumps the Class Gift Rule
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what's Rule of construction?
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used to determine the takers of a class gift
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if there is a gift of a life estate or an income interest with a remainder to a “class of beneficiaries”, when does the gift closed.
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the class closes at death of life tenant or the income beneficiary
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does the “adopted out” child take as beneficiary of a class gift made in the will of a member of the child’s natural family?
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no
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what's the Classification of Gifts that Can Be Made By a Will?
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1. Specific gift
2. Demonstrative legacy 3. General legacy 4. Residuary disposition 5. Intestate property |
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what's this “I devise Blackacre/my computer to my son John
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special gift
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what's the exception for specific gift?
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it’s (i) stock of a closely held corporation, or (ii) a stock split occurred
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what's this? “I bequeath 5K to be paid from the proceeds of sale of my IBM stock, to D
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Demonstrative legacy.a general amount from a specific source
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I give the sum of 5K to D
what's this? |
General legacy
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what's this?I give all the rest, residue & remainder of my estate to my brother A”
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Residuary disposition
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if a partial intestacy because will, poorly drafted, has no residuary clause. what's this?
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5. Intestate property
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what does ademption apply?
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special gift.
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what's abatement?
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the process of reducing testamentary gifts in cases where the estate assets are insufficient to pay all claims against the estate and satisfy all bequests and devises
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what's the order of abatement?
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a. Debts & expenses are paid out of intestate property, then out of residuary estate
b. If there are still debts, general legacies are sacrificed first (on a pro rata basis) c. demonstrative legacy d. specific gifts |
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what's the liens rule in ny？（Specific Gift of Encumbered Property）
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– liens on specifically devised property are NOT exonerated UNLESS the will directs exoneration
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is a general provision in the will for the payment of debts an indication that liens are to be exonerated?
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no
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what's Ademption?
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T no longer owns property
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what's doctrine of ademption?
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If a will makes a specific gift of property, & the property is not owned by T at his death, the gift fails
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where does & any proceeds from any sale of adempted gifts go to?
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the residuary estate
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where does ademption apply?
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b. Applies ONLY to specific gifts (NOT general or demonstrative gifts)
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what's the Statutory Exceptions to the Ademption Doctrine?
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a. Casualty insurance proceeds for lost, damaged, or destroyed property – beneficiary takes insurance proceeds to the extent paid after death of testator
b. Executory K (K not fully performed) – beneficiary gets sale proceeds paid after death of testator c. Sale by guardian or conservator --− Beneficiary gets the proceeds to the extent the remaining sale proceeds can be traced & haven’t been expended for T’s care |
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if insurance paid before T’s death, does ademption apply?
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ademption applies & beneficiary gets nothing
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if the K were fully performed before T died, does ademption apply?
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ademption applies & beneficiary gets nothing
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“5K to A, paid from proceeds of Beta Stock” , does ademption apply?
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ademption NOT apply because of demonstrative legacy
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“5K to A, paid from proceeds of Beta Stock” , does ademption apply?what's the result?
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ademption NOT apply because of demonstrative legacy
− A gets 5K, & other assets must be sold to raise that money |
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“My 100 shares of IBM Stock to A” does ademption apply?
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ademption applies because specific bequest (A gets nothing)
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"100 shares of Kodak Stock to A” does ademption apply?wahat's the result?
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there is no possessive pronoun
(ii) Since Kodak is a regularly traded security, it’s treated as a general legacy − A gets DOD (date of death) value of 100 shares of Kodak |
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does ademption apply to closely held corporation?if there is no my?
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treated as specific bequest & ademption applies (regardless of “my”)
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Change in Form but NOT Substance, A stock converted to B stock) does ademption apply?
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no
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when Stock splits, does beneficiary takes additional stock?
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beneficiary TAKES additional shares because treated as specific bequests regardless of whether possessive pronoun used & regardless of whether publicly traded
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what's the result as Mistake as to Contents of Will?
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apply Plain Meaning Rule
b. Conclusively presumed that testator read the will and intended all of its contents a. There being no ambiguity, extrinsic evidence is NOT admissible to overrule the plain meaning of will |
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what's Latent ambiguity?
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language which is misdescription.
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does language which is misdescription allow to cure a latent ambiguity.
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yes. all.
including (i) “facts & circumstances” evidence (ii) T’s declarations of intent to 3rd party (iii) T’s statements to attorney who prepared the will |
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what's Patent ambiguity
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mistake appears on face of the will
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what are kind of extrinsic evidence is admitted in patent ambiguity?
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Extrinsic evidence is admitted,BUT NOT evidence about T’s declarations of intent to 3rd person
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what's Conditional Wills?
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if the condition doesn’t occur, probate should be denied
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if something happens on trip, what's this?
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it is a conditional will
it will merely reflect the motive or inducement for making the will. probate deny. |
