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74 Cards in this Set

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administration proceeding
proceeding to appoint a personal representative (administrator) to administer the estate of dead due w/o will
wills statutory book
EPTL
intestacy order of priority
surviving spouse; children; grandchildren; parents; issue of parents (siblings)
intestate distribution to spouse and children
spouse: 50k + 1/2 of residuary; issue take the rest
intestate distribution to issue of predeceased children
passes "per capita at each generation" - so if dead A has 2 children, and dead B has 1, then A's children each get 1/3
effect of disqualification of spouse
if DISMAL, then as if surviving spouse has predeceased decedent
intestacy & bastards
"non-marital children" adopt from natural father only if paternity is established or legitimated by marriage or AFTER death, by C&C evidence and open & notoriously acknowledge the child as his own
advancements
not advancement unless proved by a contemporaneous writing, made at the time of the gift and SIGNED by the donor; if so, back out the advancement
satisfaction of legacies
this is the same as an advancement but for gifts in a will
effect of disclaimer
person disclaiming is considered to have predeceased, so his kids still take; but disclaimer cannot reduce another beneficiary's share, so it might look per stirpes
how to validly disclaim
in writing, signed & acknowledged; accompanied with affidavit that states no payment for disclaiming; irrevocable; and must be filed with Surrogate's Court w/in 9 months
reqs of valid will
18y.o.; signed at the END thereof; signed or acknowledge his earlier signature in the presence of at least 2 witnesses, w/in 30 days of each other; who know it's a will; T must "publish" the will - declare it to be his last will & testament;
BoP for will
BoP is on the will proponent, usually the executor; if not self-proved, both W's must testify to show due execution
attestation clause
recites all of the elements of due execution; prima facie evidence of the facts; but you still have to call the Ws to testify or prove their signature
codicil
later amendment or supplement to a will executed w/the same formalities
bequest to witness
bequest is VOID unless there were at least 2 other disinterested witnesses; OR the interested witness would be an intestate distributee, then you have "whichever is least rule" - he takes the lesser
foreign wills act
will is admissible to probate in NY if validly executed in state where executed; or under NY law; or law of state where T was domiciled, when will executed or at death
holographic and noncupative wills
holographic - entirely in T's handwriting and not witnessed; noncupative - oral; both are VOID; BUT SEE Foreign wills act - so it might be copacetic
lawyer malpractice
intended beneficiaries do NOT have a CoA against the lawyer for negligence b/c no privity of K. Duty only to the client. SWEET.
valid revocation of wills
by subsequent will, with all of the appropriate formalities and language of revocation; OR by physical act (VOID across page or bruning or crossing signature out w/X); partial revocation by physical act is not recognized (you can't scratch off some lines)
revocation by implication
if new will doesn't have revocation language, read the 2 instruments together, treating the 2nd as a codicil, but if 2nd is wholly inconsistent, then revoke the 1st
revocation by act of another person
need 4: T's request; T's presence; 2 more people to W; and a destroyer
presumptions re: revocation
if will was last seen in T's possesion and not found after death OR last seen w/T but found mutilated, presumption that he revoked by physical act
how to make changes
write a new will, revoking the 1st; or make a codicil, changing parts; both need all the formalities; partial revocation by physical act is not recognized (you can't scratch off some lines)
revival of revoked wills
Not by just destroying the new one; instead, it must be re-executed, resigned, rewitnessed; OR "republication by codicil" - execute a codicil on the 1st one
lost wills
must prove (a) due execution; (b) that the will was not revoked; and (c) each provision
NY anti-lapse
gift does not lapse b/c beneficiary is dead, IF predeceased was T's issue or sibling; AND the predeceased beneficiary leaves issue
excluded from anti-lapse
T's sibling's kids (nephews/nieces) (they don't get or they don't qualify???)
lapsed testamentary gifts
if gift fails or lapses, then the other beneficiaries take the estate (it doesn't go to the issue of his BFF)
effect of divorce on will
revokes all gifts to (former) spouse, but not her children; a separation decree does NOT affect the will, even tho it affects intestacy; also it does NOT affect his life ins.
mistake children (children born after will is executed)
if new kid is covered by T's life ins, that's that; but if no provision, then five situations
incorpooration by reference
not recognized in NY; everything must be formally executed
acts of independent significance
you can leave "the car I own" or "all the stuff in my apt" but not title docs (deeds, stocks, bank passbooks)
non-probate assets
property w/right of survivorship; 2) prop passing by K (life ins); 3) prop held in trust, including a revocable trust; 4) prop over which decedent had PoAppointment
life insurance probating
passes by K, not by probate; so if it says "I give the proceeds of my life ins to Claudia" but ins beneficiary is Adams, it still goes to Adams
types of gifts in will
specific gift ("I devise blueacre"); demonstrative legacy -specific source ("I give $5 from sale of IBM stock"); 3) general legacy (I give $5 to Claudia); 4) residuary; 5) partial intestacy
abatement order
1) partial intestacy; 2) residuary; 3) general legacy; 4) demonstrative legacy; 5) specific gift
gift of encumbered property
C/L & MBE: beneficiary is entitled to have lien exonerated; NY: liens on specifically devised property are not exonerated UNLESS the will VERY specifically directs otherwise
ademption
failure of gift: if specific gift doesn't exist, beneficiary loses; if demonstrative giftdoesn't exist, it turns into a general legacy
ademption of lost or destroyed property
if insurance proceeds are paid AFTER death, beneficiary takes that; but if ins is paid BEFORE death, beneficiary loses. Big time.
executory contracts on sale of property
if T agrees to sell his house before death but closing is after death, then the beneficiary gets the dough since b/c of the ademption of the gift of pinkacre
sale by guardian of specific gift
if T is incapacitated and guardian sells the house, any remaining funds will go to beneficiary, IF they can be traced
gifts of stocks / securities
they are GENERAL legacies; except if it says "I give *MY* ibm stock" - that's a specific legacy; or gifts of closely held corps are SPECIFIC also;
mistake in will
plain meaning will NOT be overturned by extrinsic evidence ($100k not $10k); it is presumed that T read his will and intended its consequences
latent ambiguity in will
if not sure which kid he meant, then extrinsic evidence; if that doesn't work, gift will fail
patent ambiguity
"I give $25 (twenty five thousand) to X" - extrinsic evidence comes in, including statements to attorneys; but NOT statements to THIRD parties
conditional wills
if truly conditional, probate is denied; but if it expresses motive, that's ok
"negative bequest" rule
(opposite from C/L) in NY, words of disinheritance are given FULL effect, even in partial intestacy; but if hated child has children, they take via anti-lapse as if hated one had predeceased
contracts relating to the will
a contract to make a will or not to revoke can be established by an express statement IN THE WILL that its provisions constitute a K b/w the parties (???)
effect of contract in the will
if survivor breaches by writing a new will w/inconsistent provisions, then 1) probate new will even tho; 2) impose a constructive trust in favor of original intended beneficiaries (???)
the elective share
the greater of $50k or 1/3 of estate; all other beneficiaries contribute pro-ratably
T-Subs, generally
testamentary substitutes - protects him from transferring out the good stuff b/f his death; these make up the "augmented estate" - 7 for TS->LEG UP; but 6 don't - LOGPIT
NOT t-subs
LOGPIT - Life ins; O: 1/2 of qualified pension plans; G - gifts under $11k ; P - pre-marriage irrevocable transfers; I - irrevocable transfers > 1y b/f death; T: transfers w/retained life estate b/f 9/1/92
survivorship estates & elective shares
if decedent had survivorship estate with TP and created post-nuptial, then "consideration furnished" test applies; surviving spouse has BoP as to amount of decedent's contribution
domiciles & elective shares
only a spouse of a decedent domiciled in NY @ time of death has a right to elective share
exempt personal property set aside from elective shares
car, furniture, $15k cash up to total of $56k come "off the top" - so???
testamentary capacity
T must understand the nature of the act; know the nature and approx value of property; know the natural object of his bounty (his family members & loved ones); and understand the disposition he was making [but this is less capacity then any other legal instrument]
elusive interval
it might be found that an otherwise incompetent T made his will during an "elusive interval"
undue influence in will making
BoP on contestant to prove: existance & exercise of influence; 2) effect of such influence was overpowering the mind & will of T; and 3) the product is a will which wouldn't have happened BUT FOR the influence
testamentary gift to lawyer
if lawyer prepared the will, inference of undue influence which satisfies contestant's BoP and even if not contest, automatic scrutiny by ct
no contest clause in will
given full effect, even if there was probable cause to challenge the will; UNLESS challenge by PC of forgery or revocation by later will (not revocation by phys act); or if just construciton of will's terms; or if objects to jurisdx
Powers of Appointment
PoA is authority created by a person (donor) for another (donee) to designate, w/in limits, who shall take property
takers in default
if the donee of a PoA fails to correctly exercise his power, they take
general PoA
you can do anything
special PoA
the donor limits who you can appoint and does not permit you to appoint to yourself
presently exercisable PoA
can exercise right now, during my lifetime
testamentary PoA
can only appoint by will
wills & PoA
a will exercises all PoA's held by T; so if D doesn't exercise her PoA, residuary takes it, NOT the takers in default
elective shares & PoA
general presently exercisable PoA's only are T-Subs, b/c he can get to it in his lifetime
disqualification of spouse from intestate share
DISMAL: Divorce; Invalid divorce (she tried to get a divorce, but messed up); Separation decree, if rendered against surviving spouse (???) (not sep. agreements); Marriage is void (incestuous/bigamous); Abandonment or Lack of support (if surviving spouse abandoned)
intestacy & adoption
1) adopted kid loses rights from natural parents; 2) unless if child was adopted by spouse of natural parent, child inherits naturally + from adoptive parent; 3) BUT if child is adopted by relative, child adopts under natural relationship ONLY; 4) unless decedent is adopting parent, then child inherits from adoptive reelationship ONLY
self-proving affidavit
Ws sign a sworn statement in the presence of an atty that recites all of the statements they would make if called to testify; can be signed anytime; so don't have to call Ws; the will is admissible on this alone UNLESS an interested party objects; then they have to come to testify
mistake child, if he gets, here's what….
1) if no provision for A/B, then C gets zip; 2) if gifts to A/B, C shares as a class gift; 3) if A/B got different amounts (10k/5k), then C gets 1/3 deducted proportionately (tough math); 4) if T's intent was to make a limited provision to A/B, C gets intestate share; 5) if T didn't have an A/B, "C" gets intestate share
T-Subs, name them
Totten trusts; Survivorship estates (half); Lifetime transfers w/strings (revocable trusts); Employee pension, etc.; Gifts made w/in 1 year of death > $11k, or gifts made in fear of impending death, any amount; U - US govmt bonds or other pay-on-death arrangements; Powers of appointemnt - property over which decedent held presently exercisable power