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247 Cards in this Set
- Front
- Back
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What is intestate?
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Without a will
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Who is a decedent?
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A dead person
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What is testate?
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With a will
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Who is a testator?
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Dead person with a will
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What is an administration proceeding?
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Proceeding to appoint a personal representative (administrator), to administer the estate of a person who dies intestate
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What is a probate proceeding?
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Proceeding to administer property of a person who dies with a will
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What are probate assets?
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Assets held in the decedent's name alone that do not pass by operation of law and that which the executor administers in accordance with the decedent's will
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What is "operation of law"?
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Property that passes automatically because of the way the title is held (it is not affected by will/intestacy)
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Who are issue?
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All who have descended from a common ancestor (descendants). Those in direct line of inheritance with the decedent
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Who are distributees?
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Inherit under intestate succession
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Who are beneficiaries?
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Receive a bequest (legacy or devise - Real Property) under a will
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What is a residuary estate?
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The balance of testator's estate after all claims, taxes, and bequests are distributed
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When do we apply Article 4 of EPTL rules of descent and distribution (RP and PP)? Three occasions
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1. decedent left no will or did not get to sign it or left will not properly executed
2. Will does not make complete disposition of the estate due to poor drafting OR 3. An intestate distributee challenges the will and will is denied probate |
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What kind of proceeding is started by an intestate distributee if there is no will left?
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An administration proceeding
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What is the purpose of an administration proceeding?
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To appoint an administrator of the estate
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What is the order of priority for appointment as an administrator?
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1.Surviving spouse
2.Children 3.Grandchildren 4.father and mother 5.brothers and sisters 6.any other distributee |
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Who takes if intestate decedent is survived by spouse and NO children or issue of children?
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Surviving spouse takes entire estate
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Who takes if intestate decedent is survived by spouse and children?
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Surviving spouse takes 50k + 1/2 of the remaining estate; issue take the balance
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Who takes if intestate decedent is survived by children only
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Passes to children in equal shares
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Who takes if intestate decedent is survived by children and issue of predeceased children?
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Passes to alive children or issue of dead children "by representation"
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What is "by representation"?
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Per capita at each generation
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What is per capita at each generation?
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One share for each line of issue at first generation level where there is a survivor; all living persons at first generational level take one share each; shares of deceased persons at first generational level are combined and divided equally among takers of the next generational level
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What is the point of "by representation"?
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Persons in the same generation will always have equal shares
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What do MOST states do when an intestate decedent is survived by children and issue of predeceased children?
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Distribute the estate per stirpes
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What is per stirpes?
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The issue of a deceased child take the share their parent would have inherited if living
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Can you convey your interest in someone's property if you predecease them?
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No. The share drops down
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Does distributing an estate by representation ever create a different result from a distribution of the same estate per stirpes?
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Yes. When more than one person at the first generational level dies and they both have issue
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Who takes if intestate decedent is not survived by a spouse or issue?
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All goes to parents or surviving parent. If not, to issue of parents (brothers, sisters, their issue) who take per capita at each generation, if not to grandparents
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If grandparents take intestate property, how is it distributed?
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1/2 to maternal grandparents or surviving grandparent OR (if neither is living) to their children and grandchildren who take per capita at each generation AND 1/2 to paternal in same manner
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What if there are no maternal grandparents or their children or grandchildren? Who takes?
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All goes to the paternal grandparents or their issue (and VICE VERSA)
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How can a spouse be disqualified from taking their intestate share?
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DISMAL
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What does DISMAL stand for?
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1.Divorce (final decree or annulment valid under NY law)
2.Invalid divorce (surviving spouse procured outside of NY, divorce not recognized as valid under NY law) 3.Separation decree against surviving spouse (doesn't bar spouse if final decree of separation was rendered against deceased spouse) 4.Marriage is void (incestuous or bigamous) 5.Abandonment 6.Lack of support by surviving spouse |
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What happens if any of DISMAL occur?
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We assume that the surviving spouse predeceased the dead spouse and we drop her share to the kids or next in line as distributees
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Do adopted children have inheritance rights from their adopting family?
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Yes, and vice versa if the adopted kids die first
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Do adopted children have inheritance rights from their natural parents or other members of their natural family?
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No rights
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What rights does an adopted kid have if adopted by the spouse of a natural parent?
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The adopted child and issue can inherit from adopting parent and EITHER natural parent
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What if an adopted child is related to the decedent by natural relation and adopted relation?
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The child inherits under the natural relationship ONLY. Unless the decedent was the adopting parent. Then, the child inherits under the adoptive relationship ONLY
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Can an adopted child inherit from a class gift?
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If the child is adopted OUT, they do NOT take from a class gift made to members of the child's natural family
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Is there any way for the adopted child to take from a class gift?
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If the child was adopted by another family member
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What inheritance rights does a nonmarital child have from their mother?
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Full inheritance rights from mother and mother's family
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When can a nonmarital child inherit from the natural father?
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Only if paternity is established
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How can we establish paternity?
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1.legitimated by marriage (after child's birth)
2.order of filiation in paternity suit during father's lifetime 3.father files witnessed, acknowledged before notary, affidavit of paternity 4.after death, paternity established in probate proceeding by CCE and openly and notoriously acknowledged child as his own 5.genetic marker test plus CCE and open and notorious |
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How does a father openly and notoriously acknowledge their child?
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Participation in school activities, visitations, gifts. Support ALONE is NOT enough
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Under CL, how is a lifetime gift treated under intestacy?
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As a presumptive advancement of an intestate share
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Under NY law, how is a lifetime gift treated under intestacy?
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The gift is NOT an advancement unless there was (a) a contemporaneous writing made at time of gift AND (b) signed by donor or donee
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How do we calculate the intestate share of the recipient of an advancement?
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Add the value of the estate to the date-of-death value of the advancement property, and divide by the distributees, and treat one as having already received the advancement amount
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How did the CL treat a lifetime gift to a beneficiary?
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As satisfaction of a legacy (in a will made before the gift was made)
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Does NY recognize the satisfaction of a legacy by a liftime gift to a beneficiary?
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No. It is not a satisfaction unless proven by (a) contemporaneous writing made at the time of the gift AND (b) signed by donor or donee
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What is a disclaimer (or renunciation)?
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An intestate distribute (or beneficiary) can disclaim or renounce in whole or in part their interest
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How do we treat a person who disclaims their interest in an estate?
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As if they predeceased the testator
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How do we validly disclaim on interest in an estate?
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1.writing signed and acknowledged (notary) AND
2.separate affidavit stating no consideration received and no one paid you to disclaim AND 3.must be irrevocable (can't change your mind) AND 4.filed with Surrogate's Court w/in 9 months after death |
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Can a disclaimer reduce another beneficiary's share?
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No
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Why do we disclaim an interest in an estate?
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To avoid taxes or creditors' claims
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Can we disclaim in order to remain eligible for Medicaid?
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No. It is against public policy
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What happens at a probate proceeding?
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The Surrogate's Court determines that decedent (a) died with a validly executed will and determines their intestate distributees (to put them on notice of the will) AND (b) appoints a personal representative named in the will (Executor) to administer the estate
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What are the requirements for a validly executed will?
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1.18 or over (capacity)
2.signed by T or in presence of T (by someone at T's direction and in her presence) 3.T's signature at the end 4.T must sign will or acknowledge his earlier signature in presence of each W 5.T must publish the will 6.Must have 2 attesting W's 7.The execution ceremony must be completed within 30 days |
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Can T's name be signed by another person?
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Yes (proxy). They must sign their name, can't be counted as one of the two attesting W's, and shall affix their address
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Is the exact order of signature important?
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No, as long as the ceremony is contemporaneous
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What would NOT be contemporaneous?
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If T forgot to sign when the W signed and added his signature in W's presence a week later. The W must attest to T's signature WHEN T signs the will
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What if the will is not signed at the end?
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It is admissible, but the words fillowing the signature are not given effect
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What if there are words following T's signature that are material?
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If the words are so material that to give effect to words above but not below signature would defeat T's intention, ENTIRE will is invalid
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Does the signature have to be the T's name?
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No. Any mark intended as signature is OK (even an "X")
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Can someone hold and guide T's hand when they sign their will?
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Yes, as long as it's still a voluntary act
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How does the T publish the will?
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Declare the document is their will and testament. Communicate to the W's that they are witnessing a will
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When does the time period for completion of the execution ceremony start to run?
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From when the first W signs (not when the T signs)
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What is a codicil?
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A later amendment or supplement to a will that is executed with the same formalities
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How does NY change the requirements for a validly executed will?
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NO requirement that W's sign in each other's presence.
No requirement that W's sign in T's presence BUT T MUST sign or acknowledge her signature in the presence of the W's |
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Who has the burden of proof in a will contest?
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The will proponent
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Must both attesting W's testify?
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Yes, if the will is not self-proved
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When can the use of only one W suffice?
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When one W is dead, absent from the state, incompetent, or cannot with due diligence be found
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What if none of the W's are able to testify?
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The will proponents must prove 2 signatures (T and 1W)
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What is an attestation clause?
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It recites all elements of due execution. Appears below T's signature and above W's signature
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Why is an attestation clause important?
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It is prima facie evidence of the facts that it presents. It is useful when W has bad memory or is hostile
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What is a self-proving affidavit?
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The W's sign a sworn statement in the presence of an attorney that recites all of the statements that they would make if called to testify in court
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When can a self-proving affidavit be signed?
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At any time after the will is executed
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Where does a self-proving affidavit appear?
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On the back of the will
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What evidentiary significance does a self-proving affidavit have?
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It is treated as the same as a deposition. Will is admissible to probate on the strength of the sworn recitals in the affidavit
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Is a self-proving affidavit ever insufficient to admit a will?
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Yes. If an interested party objects. Then you must call the two attesting W's to testify
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Who is an interested party?
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An intestate distributee adversely affected by admission of a will to probate
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Do we allow bequests to an attesting W?
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The bequest is void unless (a) at least 3 W's and 2 are disinterested OR (b) the interested W would be an intestate distributee if T died without a will
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What does an interested W take if they would be an intestate distributee if the T died without a will?
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The lessor of (a) the bequest under the will OR (b) the intestate share
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What does NOT trigger the interested W statute?
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Anything other than beneficial gifts (executor, for example, earns their compensation)
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Is a foreign will admissible in NY
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Yes, if validly executed under (a) law of the state where it was exeucted OR (b) NY law OR (c) law of the state where T was domiciled when will executed or at death
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Which state's law governs the construction of a foreign will's provisions admissible in NY?
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NY law
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What is a holographic will?
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Entirely in T's handwriting, signed but not W'd
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Is a holographic will allowed in NY?
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No
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What is a noncupative will?
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An oral will
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Is a noncupative will allowed in NY?
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No
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Is there an exception for allowing holographic or noncupative wills in NY?
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Members of armed forces during declared or undeclared war (expires 1 yr after discharge) AND mariners at sea (expires after 3 yrs)
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What if the lawyer messes up the will? Can we sue him?
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No COA against the lawyer for negligence. No privity of contract between beneficiary and lawyer. Duty runs only to client
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Can the beneficiary recover anything from a lawyer who committed malpractice in drafting the will?
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Action for cost of drafting the will
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How can we revoke a will?
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Two ways: subsequent testamentary instrument executed with appropriate formalities OR physical act
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How do we revoke by physical act?
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burning, tearing, cutting, canceling, obliterating, etc.
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Can we revoke by saying "this will is void"
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No. Not a cancellation. No physical act. Not properly witnessed.
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Can we revoke by writing VOID across the entire page?
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Yes. Would be a cancellation
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Can we revoke by writing "I cancel this will" on the will?
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No. Need more of a physical act.
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Can we revoke by crossing out the signature with an "x"?
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Yes. Anything to the signature shows intent to invalidate the will
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What if there are two wills and no language of revocation?
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Read the two instruments together. Treat the 2nd as a codicil. 2nd only revokes first to etent inconsistent provisions.
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What if the second will is wholly inconsistent with the first?
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The first will is revoked BY IMPLICATION
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Can another person revoke a will by physical act?
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Yes. At T's request, in T's presence, W'd by at least 2 W's
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What if a will is last seen in T's possession or control and NOT found after death?
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Presume T revoked by physical act
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What if a will is last seen in T's possession and found mutilated after death?
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Presume T revoked by physical act
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What if will last seen in possession of person adversely affected by it?
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Use neither presumption.
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How can we rebut a presumption of revocation?
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Evidence is admissible to rebut
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In NY, how can we change a will after it is executed?
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Either write a new will that revokes the first OR make a codicil which changes only parts of the will. BOTH need to be properly executed
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How do we treat words added to a will after it is signed and W'd?
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Disregard the words
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Is partial revocation by physical act recognized in NY?
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No
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Do we allow interlineations made before T signed the will?
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Yes
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Can a will revoked by a later will containing a revocation clause be revived by destroying will 2?
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No. Can only revive if will 1 is re-executed (signed again by T and 2 W's) OR T validly executes a codicil to the first will that makes changes
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Do we always need a validly executed document to make a change in NY?
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Yes. No revival rule applies to codicils.
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What is dependent relative revocation?
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It permits a revocation to be disregarded when it is premised upon a mistake of law as to the validity of another disposition
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What is the effect of DRR?
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Disregard the revocation of the second will (the one revoked based on mistake) and permit its probate
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Is DRR applied in NY?
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Maybe. Argue both ways
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Why is DRR a "second best" solution?
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The best solution would be to give effect to T's intent by reviving the EARLIER will
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When does DRR not apply?
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When there are two totally different testamentary schemes
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How do we probate a will under DRR if it has been destroyed?
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1.due execution must be proved
2.overcome presumption of revocation that arises from will's nonproduction or say that revocation should be disregarded because of DRR 3.all provisions must be clearly and distinctly proved by each of at least 2 credible W's or by a copy or draft of will proved to be true and complete |
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What is the effect of revocation by 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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What if a beneficiary dies during T's lifetime?
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The gift lapses (fails) unless the gift is saved by NY's antilapse statute
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What does NY's anti-lapse statute provide?
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Gift does not lapse but vests in deceased beneficiary's issue who survive the T IF:
1.predeceased was T's issue or brother or sister AND 2.predeceased leaves issue who survive T |
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Can we trump the anti-lapse statute in the will?
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Yes, by writing "if he survives me"
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What if members of a class gift predecease the T?
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Members who survive take (absent contrary provisions)
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Why let just the other class members take if a member predeceases T?
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We assume T was group-minded and wanted this class (and no one else) to share ownership
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Which has preference, the anti-lapse statute or the class gift rule?
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Anti-lapse
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What is the rule of convenience?
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A class is closed at the time a distribution to the class must be made. We close the class to determine the minimum share of each class member so distribution can be made without the necessity of asking for a rebate or refund later on
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When does an outright gift to a class in a will close?
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At T's death (subject to gestation principle)
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When does a gift of a life estate or income interest with remainder to a class close
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At death of the life tenant or income beneficiary
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What if two die with insufficient evidence that they have died separately?
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Property of each is distributed as though they survived the other
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How do we distribute jointly held property of two who died simultaneously?
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Passes as though each co-owner survived. USDA prevents operation of the right of survivorship in these cases. Passes as though TIC involved
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Why does the USDA prevent the right of survivorship in sim death cases?
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Because the shares would keep bouncing back and forth
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Sim Death example: H&W are JT's with right of survivorship. H has 2 children, W 1. How to distribute?
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Act as if H survived, His half drops to kids. Act as if W survived, Her half to her one kid
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What if T marries after will executed?
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No effect on the will. NY law provides for right of election (CANNOT disinherit your spouse)
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What if T divorced after will executed?
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All gifts, fiduciary appointments to former spouse revoked (as if predeceased T)
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What happens to bequests to son/daughter of former spouse?
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Not revoked by divorce
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What happens to appointment of former spouse as guardian?
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Not revoked by divorce
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What happens if couple reconciles and remarries (how sweet)
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All provisions in favor of former spouse restored
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Does anti-lapse statute apply to spouses?
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No
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Does anti-lapse statute apply to life insurance?
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No
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What happens to child born or adopted after will executed and T had 1+ children before?
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If no provision for any children, inherits nothing. If made gifts to T's other children, shares in the amount as if class gift made. If intention was to make limited provision to children at the time, takes intestate share
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What happens to child born or adopted after will executed and T had no children when will executed?
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Takes intestate share
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Where does afterborn child's share come from?
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Comes from the gifts to the other children
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What if T gave different amounts to the children in the will?
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Add together, divide by # of children including afterborn
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What if a life insurance policy named the afterborn?
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Afterborn does NOT take a share as a pretermitted child (was provided by a settlement)
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What is incorporation by reference?
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Terms of an extrinsic document not present at the time the will was signed can be incorporated by reference if (a) document was in existence when the will was drafted, (b) the will shows a clear intent to incorporate the document, and (c) the extrinsic document is clearly identified by the language of the will
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Does NY recognize incorporation by reference?
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No. Everything must be formally executed
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What are acts of independent significance?
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Lifetime acts that have their own purpose or motive beyond testamentary purpose
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Is there an exception to acts of independent significance?
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Title documents like deeds, stock certificates - these can only be transferred as mandated by law
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What are nonprobate assets?
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Interests in property that are not subject to the disposition under the will and not part of the probate estate
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What are some examples of nonprobate assets?
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Property passing by right of survivorship, by contract, held in trust including irrevocable trust, property over which decedent held a power of appointment
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What is a specific gift?
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"I devise B to my son John"
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What is a demonstrative legacy?
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General amount from a specific source (5000 to be paid from the proceeds of sale of IBM stock to Donna)
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What is a general legacy?
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"I give the sum of 5000 to George"
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What is a residuary disposition?
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"I give all the rest, residue, and remainder of my estate to my brother Jim"
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What if there are ot enough assets to cover all gifts made by a will?
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The gifts abate
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What is the order of abatement of gifts in a will?
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Debts and expenses first paid out of intestate and residuary property. Then general legacies pro rata. Then demonstrative pro rata. Then specific pro rata. Then items that qualify for estate tax marital deduction.
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What do we do with a specific gift of encumbered property at CL?
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Beneficiary was entitled to have the lien exonerated (paid from residuary estate)
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What do we do with a specific gift of encumbered property in NY?
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Not exonerated unless the will directs exoneration
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What if the will has a general provision for the payment of debts?
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Such provision is not an indication that liens are to be exonerated
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What if a specific gift of property cannot be found or is not owned by T at death?
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The gift adeems without regard to T's intent
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To what kinds of gifts does ademption NOT apply?
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General and demonstrative
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What if there is no cash available for a demonstrative legacy from where the amount is designated to be taken?
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Turns into a general legacy. Assets will have to be sold to satisfy demonstrative legacy if no cash in estate or designated account doesn't exist
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What happens to casualty insurance proceeds for lost/damaged property?
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Beneficiary takes proceeds if paid AFTER death
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What happens to an executory contract that hasn't been performed yet?
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Beneficiary gets the contract payments that are paid AFTER death
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What happens to specifically bequeathed property that was sold by a guardian?
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Beneficiary is entitled to receive $ or property into which the proceeds from the sale can be TRACED and weren't spent. If can't trace the proceeds, ademption
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What happens to gifts of shares in publicly traded corp?
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General legacies; don't adeem
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What happens if give "MY stock"?
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Specific bequest; adeems
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What happens to gifts of shares in closely held company?
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Specific bequest; adeems
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Does ademption apply to a change in stock's form?
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No. Say a shareholder gets one share IBM for every 2 of ATT. ATT stock is directly traceable to the IBM stock
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What if there is a stock split?
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The bequest of stock is treated as a specific bequest whether or not a possessive pronoun is used and whether the corp is public traded or closely held
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Can we overturn the plain meaning of a will?
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No. Can't overturn the plain meaning with extrinsic evidence
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What is a latent ambiguity in a will?
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A misdescription; the mistake does not appear on the face of the will
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Can we clarify or find the meaning of T's words if there is a latent ambiguity?
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Yes. Extrinsic evidence is admissible (includign facts, circ's, T's declaration of intent to third parties, statements to attorney)
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What if extrinsic evidence does not cure the ambiguity?
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The gift fails
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What is a patent ambiguity in a will?
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A mistake that appears on the face of the will
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Can we clarify or find the meaning of T's words if there is a patent ambiguity?
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Yes. Extrinsic evidence is admissible, includes facts and circ's, T's statements to attorney, NOT T's declarations of intent to third person
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How do we interpret a conditional will?
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Deny probate if the condition did not occur OR admit to probate because reference to a condition merely reflected a motive or inducement for making the will
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How do we make a contract to make a will?
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Express statement in the will that its provisions are intended to constitute a contract
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What if a will is contractual and the survivor breaches the k by writing a will with inconsistent provisions?
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Probate the new will even though will 1 is written as a contract. Impose a constructive trust in favor of original intended beneficiaries
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Can parties revoke a contractual joint will?
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Yes, by agreement while both alive
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At CL, if a will had words of disinheritance, were they effective if the will did not make a complete distribution?
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No. The property passing by intestacy is governed by intestacy statutes, not the will
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How does NY treat words of disinheritance?
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Gives them full effect EVEN IN a partial intestacy
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What is the purpose of an elective share?
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To protect the surviving spouse from disinheritance (giving them a minimum share of decedent's estate)
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What is the elective share for a spouse?
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The greater of 50k or 1/3 of the estate (plus 6% interest beginning 7 months after issuance of letters testamentary)
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To which part of the estate do we apply the elective share?
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To the net estate (after payment of debts - but before estate taxes)
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What is the purpose of a testamentary substitute (TSUB)?
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If an elective share applied only to a probate estate, a Person could disinherit their spouse by making nonprobate transfers to others
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To what property does the elective share apply?
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Property owned at death and any TSUB
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What is an augmented estate?
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Because the probate estate is augmented by TSUBS, the augmented estate is the amount subject to the elective share
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Which non-probate transfers are TSUBS?
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Almost all of them
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Which non-probate transfers are NOT TSUBS?
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Life insurance, irrevocable dispositions before marriage, irrevocable dispositions more than 1 yr before death
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What are the 7 key categories of TSUBS?
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1.Totten trusts
2.Survivorship estates 3.Lifetime transfers w/strings attached 4.Employee pension, profit sharing, deferred comp 5.Gifts within 1yr of death in excess of 11k gift tax annual exclusion 6.US government bonds and other pay on death arrangements 7.Powers of appointment (property over which decedent held a presently exercisable general power of appointment) |
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What is a totten trust?
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A, trustee for B
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What is a survivorship estate?
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JT, TBE, joint and survivor bank accounts - ONLY count if created on/after Sept 1 66
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What is a lifetime transfer with strings attached?
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A transfer with retained power to revoke, name new beneficiaries AND irrevocable transfers with retained life estate made after Sept 1 92
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Are gifts causa mortis TSUBS?
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Yes, even if within the 11k exclusion
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What is the general rule for TSUBS?
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If the decedent could get to it while they were alive, we're going to let the surviving spouse get to it
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What are NOT TSUBS (6 categories)
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1.Life insurance
2.one-half of qualified pension benefits 3.gifts within 1 yr of death within 11k annual exclusion 4.pre-marriage irrevocable transfers 5.irrevocable transfers made more than 1 yr before death (no retained power) 6.transfers with retained life estate before Sept 1 92 |
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What is the consideration furnish test?
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In a survivorship estate with deceased spouse and third party (JT, joint and survivor account), the surviving spouse has burden of proof as to amount of decedent's contributions to the asset's acquisition or deposits into account
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How do we treat a survivorship estate with the surviving spouse?
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Half is a TSUB, no matter which spouse furnished consideration
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How do we calculate elective share? Example
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Net probate estate + 1/2 joint bank account with spouse + total worth of a JT property if prove that all funds used to buy were from spouse = elective share estate. Divide by 3 (1/3 of augmented estate). Subtract amount passing to spouse under the will. Subtract amount passing to spouse as testamentary substitute. Result = net elective share to which spouse is entitled
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How do we treat survivorship estates between a deceased spouse and 3rd party created BEFORE marriage?
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An irrevocable disposition before marriage is not a TSUB. Ex.: if W furnished entire consideration for a JT created before marriage, only 1/2 of the value is a TSUB. When W acquired the JT, she made an irrevocable gift of a 1/2 interest to the other member of the JT
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How do we treat TSUB's when we're in intestacy? Ex. H survived by W and child, leaves 100 in account in trust for child, joint account with "friend" for 140. H contributed all funds in this account.
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Via elective share: Totten trust 100k first, joint account with friend 2nd. 240k in TSUBS. W is entitled to 1/3 of these
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What if H also left RP held with W as TBE 120k?
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Elective share estate: 100k, 140k, 60k = 300k divided by 3, and minus half of the value of the property with W = 40k (the amount W is entitled to from other beneficiaries)
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What if H left RP he held with W as TBE for 120k AND intestate property of 90k, and no child?
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Elective share estate: 100k, 140k, 60 (1/2 value of property with W), 90 intestate property = 390k divided by 3 = 130k minus 60k (1/2 value of property with W) minus 90k intestate = -20k, so NO elective share rights. Takes under intestacy
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What if W leaves 300k, no TSUBS, 50k stock to H, 50k to daughter, 50k to sister, residuary to friend.
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Elective share estate: 1/3 of 300k = 100k. H takes stock and net elective share of 50k. All other bene's contribute pro-ratably. Pro rata determined by dividing 50k we need by 250 in remaining assets = 20% for each bene
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How can we eliminate the right to an elective share?
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Through an elective share trust
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What is an elective share trust?
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Gives spouse a life estate (income interest for life). As long as the sum of outright dispositions is at least 50k or 1/3 of the principle of the trust, no right of election
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When can an elective share trust substitute for an elective share?
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If the person died before Sept 1 94. Life estates NO LONGER satisfy the elective share entitlement
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How is an elective share distributed?
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By the filing of a notice of election.
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What is the net elective share calculation?
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net probate estate plus TSUBs = augmented estate, divided by 3, minus value of outright dispositions to spouse = elective share for W
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What happens to trust income in an elective share situation?
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Read as though surviving spouse predeceased the T. The remainder interest is accelerated, knocking out W's income interest. Remainder is distributed and all beneficiaries contribute pro rata to net elective share
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Are there any jurisdictional problems with elective shares?
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Only the spouse of a decedent domiciled in NY at time of death has a right of election. Exception: will states that disposition of RP in NY is to be governed by NY law
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What is exempt personal property?
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Property that is set aside over and above property passing to the spouse by will, intestate share, or elective share - it is not subject to creditors' claims, with the exception of funeral expenses
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What is included in exempt personal property?
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Car (up to 15k), furniture, appliances, computers (up to 10k), 15k cash allowance, animals, farm machinery, tractor (up to 15k), books, pictures, videos (up to 1k)
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What is the maximum total exempt personal property?
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56k
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How can a spouse be disqualified from their elective share?
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DISMAL
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What is required for testamentary capacity?
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1.understand the nature of the act (writing a will)
2.know the nature and approximate value of their property 3.know the natural objects of their bounty and understand the disposition they are making |
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Can there be testamentary capacity if someone is insane?
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Yes, if T executed will during a lucid interval
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What is an insane delusion?
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Believing that the New York Bar Exam is easy
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What is an insane delusion?
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Of sound mind on other subjects but has persistent belief in supposed facts that have no real existence except in T's imagination. Facts are against all evidence and produce the testamentary act
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What is undue influence?
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Subjected to and controlled by dominant influence of power
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What do you have to prove to find undue influence?
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1.existence and exertion of an influence
2.effect of such was to overpower the mind and will of T 3.product is a will or provision that would not have happened BUT FOR influence |
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Is there undue influence if the free agency of the T was not destroyed?
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No. The will must express a will not of the T but of the one exerting influence
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Is an opportunity to exert influence enough?
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No. Nor is susceptibility to influence because of age/illness or natural disposition
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What is required to satisfy the burden of proof for undue influence?
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Gift to one in a confidential relationship AND that person was active in preparing the will
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What kind of scrutiny do we give a bequest to a drafting attorney?
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PUTNAM scrutiny by the Surrogate Court
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What must a drafting attorney do if the will names the attorney as executor?
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Give written disclosure to the client that
1.any person can be named executor 2.executor receives statutory commissions AND 3.the atty will also be entitled to legal fees for representing the estate The client must then sign with 2W's |
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What if the attorney fails to comply with requirements for notification if will names him as executor?
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Attorney will only receive 1/2 of the statutory commissions
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What is a no-contest clause?
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Says that if someone objects to the will, gets nothing
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What is the majority rule for no contest clauses?
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Full effect given unless the contest was brought in good faith and with probable cause
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What is the NY rule for no contest clauses?
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Full effect given even if probable cause to challenge
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Are there NY exceptions for no contest clauses?
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1.based on forgery or will revoked by later will (if PC for the contest)
2.if filed on behalf of an infant or incompetent person 3.construction proceeding to construe will's terms (patent, latent ambiguities) 4.objection to J of the court |
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What is a power of appointment?
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The authority created by a person to designate within limits prescribed by the creator of the power the persons who shall take the property and manner in which they shall take
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Who is a donor?
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The creator of a power of appointment
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Who is a donee?
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The person who is given the power of appointment to use
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What is the purpose of a power of appointment?
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To look at the facts in existence on a later date when the property was distributed
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Who are takers in default?
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Persons who take the property if the donee fails to exercise the power correctly
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What is the scope of a general power of appointment?
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Can appoint to themselves, creditors, or estate as if they owned it themselves
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What is an example of a general power of appointment clause?
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Income from trust to my daughter Dana for life, and on Dana's death, principal distributed to such persons, including Dana's estate, as she appoints by will - general testamentary power
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What is a special power of appointment?
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Limited or designated class to which you appoint ("to issue of my brother")
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What is a presently exercisable power of appointment?
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Can exercise it right now, during your lifetime
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What is a testamentary power of appointment?
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Can only appoint by will
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What is the NY rule for power of appointment?
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A will exercises all POA's held by the T (both general and special), unless the instrument creating the power called for its exercise by a specific reference. Can exercise the POA by will unless original will expressly excluded
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What is a general presently exercisable power of appointment?
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"during her lifetime Dana can appoint the trust property to such persons, including Dana's estate, as she appoints by her will" - Dana can get to it during lifetime, so surviving spouse can get to it
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What is a general testamentary power of appointment?
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"and on Dana's death the trust shall be distributed to such persons as she appoints by her will" - Dana can't get to it during lifetime, so surviving spouse can't get to it either
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What is a special power of appointment?
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"during lifetime, Dana can appoint the trust to any one or more of her descendants by written instrument delivered to trustee" - Dana can't get to it during lifetime, so surviving spouse can't get to it either
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Can creditors reach a presently exercisable general power of appointment?
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Party can reach it as if he owned it himself, so creditors can reach
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Can creditors reach a presently exercisable special power of appointment (left will that exercised the power)?
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Party can't get to it himself - can only give it to a special class, so creditors can't reach
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Can creditors reach a general testamentary power of appointment (left will that exercised the power)?
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Creditors can't reach unless the donee of the power is also the donor of the power OR he exercises it in favor of his own estate
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