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90 Cards in this Set
- Front
- Back
Definition of intestate
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When a person dies without a will
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Definition of decedent
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A person who dies without a will
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Definition of Distributee/ heir/ next of kin
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Person who inherits property under intestate succession
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Definition of Issue/ descendant
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All persons who have descended from a common ancestor, including those in direct line of inheritance with the decedent
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Definition of administrator
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A person (usually a distributee) appointed as a personal representative to administer the estate of the decedent
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Definition of Administration Proceeding
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a proceeding initiated by a didstributee to appoint an administrator and administer the property of the decedent
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Definition of Intestate Property
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assets held in the decedent's name alone that do not pass by operation of or by will and which the administrator administers in accordance with the EPTL
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Definition of Operation of Law
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Property that passes automatically because of the way the property's title is held, regardless of the existence of a will or intestacy
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Definition of Residuary
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the balance of the decedent's estate after all claims, taxes, and particular bequests have been distributed. the rest of the estate
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The EPTL contains the rules of
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descent and distribution of property (both real and personal) in testacy, which typically apply when:
1- Decedent left no will or did not properly execute it 2- The will does not make a complete distribution of the estate (typically because there was poor drafting by the attorney and results in partial intestacy or 3- a distributee successfully challenges the Will and the Will is denied probate |
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Order of priority for appointment as administrator
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1- Surviving Spouse
2- Children 3- Grandchildren 4- Parent 5- Siblings 6- Any other distributees |
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Decedent survived by spouse and no children Rule
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If the decedent is survived by her spouse but not by any children or issue of children, the surviving spouse takes the whole estate
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Decedent Survived by spouse and children Rule
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If the decedent is survived by his spouse and issue, whether of his current marriage or an earlier marriage, the surviving spouse takes 50K plus 1/2 residuary. the issue take the leftover residuary Unless the estate happens to be less than 50K, then the whole estate goes to the surviving spouse
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Decedent survived by children only rule
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If the decedent is survived by children (and no child has predeceased the decedent) the estate passes to children in equal shares.
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Decedent survived by children and issue of predeceased children rule
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if the decedent is survived by children and the issue of predeceased children the estate passes to the "alive children" and the issue of the pre-deceased children by representation or per capita at each generation
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Representation or per capita at each generation applied
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1- the property is divided into as many shares as there are issue at the first generational level at which there are survivors
2- all living issue at the first generational level take one share each 3- the shares of the deceased issue at the first generational level are combined and then divided equally among the takers at the next generational level in the same way Rule of Thumb: issue in the same generation will always have equal shares |
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Decedent not survived by spouse or issue, order of distribution
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1- All parents or surviving parents
2- if not survived by parents: all issue of parents (siblings and issue of deceased siblings) who take per capita at each generation |
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Per stirpes distribution
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The issue of a predeceased child takes the share that the predeceased child would have taken if alive.
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In NY, the default distribution is
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per capita at each generation in both intestacy and in will
Exception: A will can override and change the default distribution to "per stirpes" |
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Adopted children and their issue general rule
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Full inheritance rights from the adopting family and vice versa if kid dies first
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Child adopted by a new family rule
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no inheritance rights from the birth parents or any member of the birth family
Exception: Child adopted by the spouse of a birth parent: child and issue can inherit from teh adopting parent and either birth parents |
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Child adopted by a relative rule
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If the adopted child is related to the decedent by botha birth relationship and an adopted relationship, the child inherits under the birth relationship Unless the decedent was the adopting parent then the child inherits under the adoptive relationship
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Non marital children general rule
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a nonmarital child has full inheritance rights from the mother and the mom's family
However, a nonmarital child inherits from the birth father only if paternity is established by one of the following 4 tests: 1- the father marries the mother after the child's birth 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 or 4- Paternity is established by clear and convincing evidence wheich may include, but is not limited to evidence established by a- DNA/genetic matter test b- openly and notoriously acknowledging the child as his own, support by itself is not enough (school events, visitation) |
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Variations to intestate Distributions
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1- Disqyalified spouse from taking intestate share
2- Lifetime Gifts to intestate distributee- Advancements 3- Disclaimer by intestate distributee |
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Circumstances disqualifying spouse from taking intestate share
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DISMAL
Divorce: a final decree of divorce or annulment recognized as valid Invalid divorce: the surviving spouse procured a divorce or annulment not recognized as valid under NY law (the surviving spouse is not disqualified if the deceased spouse procured the invalid divorce or annulment) Separation Decree: a final decree of separation was rendered against the surviving spouse. A separation agreement does not result in disqualification unless there is specific language in the agreement waiving the surviving spouse's rights under teh EPTL (the surviving spouse is not disqualified if the final decress of separation was rendered against the deceased spouse) Marriage is void: as incestuous or bigamous AL: abandonment or lack of support: the surviving spouse abandoned or refused to support the deceased spouse (the SS is not disqualified if the deceased spouse abandoned or refused to support him or her) |
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Rule for disqualified spouse
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Assume SS pre-deceased and dropped their share to the kids or whoever is next in line
NO slayer statutes per se in NY |
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Lifetime gifts to intestate distributee- Advancements CL rule
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A lifetime gift to a child was presumptively an advancement of his intestate share, to be taken into account when distributing the estate at death (This was based on the presumption that a parent would always want to treat his children equally)
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NY Rule on Lifetime gifts to intestate distributee
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NY has rejected teh "advancement" presumption by statute. Thus, there is no advancement unless proven by:
1- a contemporaneous writing made at teh time of the gift AND 2- issued by the donor or donee |
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Disclaimer "renunciation by intestate distributee, context, rule, and conditions
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Context: no one can be compelled to be a distributee or to take property by operation of law. A distributee can therefore disclaim (or renounce) her interest in hte decedent's estate in whole or in part
Rule: Person who has disclaimed is considered to have pre-deceased decedent A valid disclaimer must be 1- in writing, signed and acknowledged (before a notary public) and 2- accompanied by a separate affidavit stating that no consideration was received for disclaiming (unless the surrogate's court authorizes receipt of consideration for the disclaimer); And 3- Irrevocable And 4- Filed with the Surrogate's court within 9 months after the date of death |
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Requirements of a duly executed will
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"7 Point Test"
1- Must be 18 years old 2- Signed by the testator (when the testator's name is signed by another person, the proxy: 1- must also sign her name; 2- cannot be counted as an attesting witness; AND 3- must affix her address, but failure to affix doe not invalidate the Will). 3- Testator's signature must be at the end thereof 4- Testator must sign will or acknowledge his earlier signature in the presence of each witness 5- T must publish the will. Publication requires the testator to communicate to teh witnesses that they are witnessing a Will (and not some other legal document), by declaring the document to be her "last will and testament" 6- Must be at least 2 attesting witnesses (unlike most states NY does not require that the witnesses sign in each other's presence or in the testator's presence. Attesting witnesses must attest to the testator's signature when the testator signed the will or acknowledged his signature. If the testator forgot to sign when the witness signed and added his signature in the witnesses' presence later, teh Will is denied probate because it is not a contemporaneous transaction) 7- Execution Cereony must be completed in 30 days which starts to run when the first witness signs |
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Codicil is a
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later amendment or supplement to a will executed with the same formalities
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Due Execution checklist
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1- Testator is 18 or over
2- testator signs 3- signature is at the end thereof 4- Testator signs or acknowledges her earlier signature in the presence of each witness 5- publication 6- 2 attesting witnesses sign and 7- ceremony completed in 30 days |
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Words following the signature
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would not be given effect but the will can still be admitted to probate.
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Will proponent is
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The person who offers the will for probate (usually the executor)
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Who has the burden of proving due execution
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The will proponent
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The attestation clause appears
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below the testator's signature line and above the witnesses' signature lines, and recites all the elements of due execution,
The clause is prima facie of evidence of the facts presented but is not a substitute for live testimony. |
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Reasons for having an attestation clause
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1- if the witness has a bad memory
2- if the witness is hostile |
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Self proving affidavit is located
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attached to the back of the will and is a mechanism set forth by the legislature which recognizes that the validity of most Wills is not contested
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A self-proving affidavit is
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a substitute for live testimony witnesses sign a sworn statement in the rpesence of an attorney that recites all the statements they would make if they were to testify in court
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Procedure for a valid self-proving affidavit
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The affidavit can be signed at any time after the Will is executed, but is usually signed at the same time as the Will
The will is admissible to probate on the strength of the sworn recitals in teh affidavit unless an interested party objects in which case the formal rules of proof of due execution apply |
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Interested witness statute rule
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the validity of the will is not affected if a will beneficiary is also an attesting witness but the bequest to the witness is void unless:
1- supernumary rule: at least 3 witnesses and 2 were disinterested 2- the will beneficiary/ interested witness would be an intestate distributee if they died without a will, in which case a "whichever is least" rule applies: The witness-beneficiary takes the lesser of: 1- the bequest under the will or 2- his intestate share |
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Purpose of the "interested witness statute"
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to avoid fraud
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Foreign Wills Act rule
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A will is admissible to probate in NY if it was validly executed under (END)
1- the law of the state where the will was Executed, regardless of the testators domicile at that time OR 2- New York law OR 3- The law of the state where teh testator was Domiciled, either when the will was executed or at death These rules apply only to determine whether the will is admissible to probate in NY. Once the will is admitted to probate, NY law governs construction and application of its provisions |
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A holographic will is
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entirely in T's handwriting, signed but not witnessed
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A nuncupative will is
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an oral will
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IN NY, bot the holographic will and nuncupative wills are
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void
Exception: both are valid for members of teh armed forces during decared or undeclared war (but void one year after discharge) and mariners at sea (but void three years after discharged) |
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Application of foreign wills act to holographic will
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If executed in a state that recognizes them, the person dies in NY it is ok
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Do intended will beneficiaries have a cause of action against the estate lawyer for negligence?
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No, because there is no privity of contract between the beneficiaries and the lawyer. duty is only to client who contracted lawyers services, now dead.
However, privity exists between personal representative and lawyer |
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Valid revocation rule
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A will can be revoked in only one of two ways:
1- subsequent testamentary instrument executed with appropriate formalities or 2- by physical act but must have the intent to revoke |
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Revocation by implication (2nd will created without language of revocation of earlier will) rule
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to the extent possible, read the 2 instruments together, 2nd will is treated as a codicil and amendment and only revokes inconsistent provisions
Exception: If teh second will is wholly inconsistent with the first, the first will is revoked by implication |
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Revocation by physical act of another (revocation by proxy) rule
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the physical act must be
1- at the testator's request 2- in the testator's presence and 3- witnessed by at least 2 witnesses * 4 people must be in the room: Testator, destroyer, and 2 witnesses |
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When a will that was last seen in the testator's possession or control is Not found after death the presumption is that
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T revoked will by physical act with intent
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When a will that was las tseen in the testator's possession or control is found in a damaged condition after T's death the presumption is that
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T was the one who revoked it by physical act
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If the Will was last seen in the possession of someone adversely effected by the contents
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There is no presumption of revocation
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When the will cannot be foundor is found in a damaged condition
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Evidence is admissible to rebut the presumption of revocation
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Changes on the face of the will after it has been executed, RULE
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the only 2 ways a testator can make changes in her will are:
1- Write a new will which revokes the 1st will or 2- make a codicil to the 1st will changing only parts Both must be duly executed |
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Words added after signed and witnessed are
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disregarded
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Partial revocation by physical act is
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not recognized in NY
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Revival of revoked wills rule
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if a testator executes a will that is revoked by a later will containing a revocation clause, the first will cannot be revived by the testator merely revoking the later will
*Also applies to codicils |
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The will can only be revived in 2 ways
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1- re=execution: 7 point test of another will or
2- Doctrine of republication by codicil: T validly executes a codicil making changes, meeting the 7 point test |
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Dependent relative revocation rule
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DRR permits a revocation of a later will to be disregarded. The effect would be to permit probate of the later will.
DRR is a common law doctrine, sometimes called the second best solution doctrine." The best solution, which is giving effect to the testator's intent by reviving the earlier will is just not possible usually under NY law |
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Requirements for application of DRR
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1- The testator's revocation must be premised or dependent upon a mistake of law
2- the disposition that results from disregarding the revocation of the later will must come close to the dispositions the testator intended when he attempted to revive the earlier will |
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DRR in NY
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DRR has been applied in one Appellate Division case, but never by the court of appeals, argue both sides
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"Lost Wills" Statute issued in 2 situations
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1- DRR and
2- truly "lost" wills |
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The "Lost Will" proponent must prove that
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1- The "lost" or later will was duly executed (7 point test)
2- The "lost" or later Will was not "revoked" thus the "Lost Will" proponent must a- overcome the presumption of revocation that arises from the Will's non-production or b- Prove that the revocation should be disregarded under DRR 3- The will's provisions are "clearly and didstinctly proven by each of at least two credible witnesses or by a copy or draft of the Will proved to be true and complete |
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Effect of revoking a codicil
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does not revoke the entire Will. Provisions in the Will that were not changed by the codicil remain in effect
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Death of a beneficiary during the testator's lifetime rule fo thumb
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A testator cannot make a gift to a deceased person
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Antilapse statute general rule
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If a beneficiary dies during the testator's lifetime, the gift to the beneficiary lapses/fails UNLESS the gift is saved by the state's anti-lapse statute.
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NY's anti-lapse statute
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The gift does not lapse but vests in the deceased beneficiary's issue IF BOTH of the following conditions are satisfied
1- the predeceased beneficiary was T's issue, brother or sister AND 2- The predeceased beneficiary leaves issue who survive T Note: under intestate rules, a disclaimant is considered to have predeceased the decedent. Similarly, under testate rules, a disclaimant is considered to have predeceased the testator Note 2- A condition to a bequest (if he survives me) trumps anti-lapse |
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Death of "adopted out" child
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specifically named in the will saves bequest and anti-lapse will apply
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Lapse in residuary gift "surviving residuary beneficiaries" rule
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Absent contrary provision in the Will, if the testator's residuary estate is:
1- devised to two or more persons; AND 2- The gift to one of them fails ro lapses for any reason; AND 3- The anti-lapse statute does not apply, Then the other residuary benefits take the entire residuary estate in proportion to their interest. NOTE: anti-lapse trumps the "surviving residuary beneficiaries" rule |
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Class gifts general rule
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Absent a contrary provision in the will, ifa will makes a gift to a group of persons, described as a generic class (children, siblings, etc) and some members of the class predecease the testator, the class members who survive the testator take in equal shares.
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How to determine the members of "the class"
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Who is alive at T's death
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When testator names beneficiaries individually, not as a class
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Anti-lapse trumps class gift, issue will take
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Construction of a class gift implicating an "adopted out" child
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If a child is adopted by a new family, the adopted out child does not take as a beneficiary of a class gift made in the Will of a member of the child's birth family
However- the adopted out child is entitled to share in a class gift if she is adopted by a member of the birth family |
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Rule of convenience- later born class members
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the class closes at the time a distribution to the class must be made. later born class members are excluded from taking as memberes of the class.
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Outright gift by will, class closes
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on T's death
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A lfie estate or an income interest with remainder to a "class of beneficiaries", class closes
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on the death of Life tenant or income beneficiary
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Simultaneous deaths: Revised Uniform Simultaneous Death Act (RUSDA)
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Absent a will provision to the contrary, if a person dies under circumstances where there is insufficient clear and convincing evidence to prove that such person is to have survived the other by 120 hours (5 days), the property of that personis distributed as though he or she predeceased the other person.
(2 people die within 120 hours, if there is no proof that one survived the other more than 120 hours, than the other person, then presume each outlived the other when figuring out how to distribute the property.) Remember: Look at whose estate you are distributing. |
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RUSDA and Jointly held property rule
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Jointly-held property passes as though each co-owner survived the other
FICTION: RUSDA theoretically severs the right of survivorship in cases of jointly held property. Thus, property passes as though a tenancy in common was involved not as survivorship property NOTE: the same distribution results for tenants by the entirety and joint bank accounts |
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If a testator marries after the will is executed
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no effect on the validity of the will, but it may affect gifts and dispositions under the will.
NY provides for a "right of election) so that a testator cannot disinherit his spouse |
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If a testator "unmarries" after the will is executed
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if the court renders a final decree of divorce, annulment or separation after the execution of a will, all gifts and fiduciary appointments in favor of the former spouse are revoked by operation of law.
The effect is read the will as if the spouse pre-deceased Exclusions: 1- gifts and fiduciary appointments in favor of the issue of the former spouse are not revoked by operation of law 2- an appointment of the former spouse as guardian of the couple's children is not affected 3- If the couple reconcile and remarry, all provisions in favor of the former spouse are restored |
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Rule of thumb on testator who unmarries:
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Only a final decree of divorce, separation or annulment can disinherit a spouse under a will
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If testator's child is born or adodpted after the will is executed general rule
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The EPTL only protects pretermitted children who are
1- Not provided for by any settlement AND 2- Neither provided for nor mentioned in the will This is to make sure afterborn child inherits equally to siblings if parents forget to change wills |
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If the testator had one or more children when the will was executed adn no provision is made for any children, the pretermitted child
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gets nothing - equal footing as other children
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If the testator had one or more children when the will was executed and the will made gifts to the other children, the pretermitted child
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shares in the amount as if class gift was made
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If the testator had one or more children when the will was executed and it appears that the testator's intention was to only make a limited provision to the children living at the time the will was executed, the pretermitted child
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takes his intestate share (other beneficiaries have to kick in)
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If the testator had no children when the will was executed, afterborn child
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takes his intestate share
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Negative bequests, common law rule
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When a will does not make a comlete distribution of the estate, resulting in partial intestacy, words of disinheritance in the Will are ineffective with respect to property passing by intestacy
Rationale: Property passing by intestacy is governed by intestacy law, not by the testator's will |
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NY's negative bequest rule
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words of disinheritance are given full effect or partial intestacy
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