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91 Cards in this Set
- Front
- Back
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When is the spouse disqualified from inheriting intestate?
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DISMAL
Divorce (final divorce decree or annulment) Invalid Divorce (surviving spouse tried to divorce the fucker in another state, but NY said no thanks) Separation Decree (the dead dude got a separation decree against the bitch who outlived him) Marriage is void Abandonment (the living bitch abandoned him) Lack of Support (the bitch refused to support him) |
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Do adopted children have full inheritance rights?
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Yes
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Do adopted children get to inherit from their natural family?
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No
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Carol's father dies, mother remarries, and second husband adopts Carol. Carol and her issue have inheritance rights from the:
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Natural mother, adoptive father and the family of dead, natural father.
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What if child is adopted by a relative (e.g. an aunt or uncle) can she inherit under the natural relationship or via the adoptive relationship?
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Under the natural relationship only.
Unless the decedent was the adoptive parent, then the child inherits under adoptive relationship only |
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How do I disclaim "renunciation" if I am an intestate distributee or beneficiary?
WSN; NC; IR; 9 |
It will be like i predeceased the testator. For my claim to be valid, it must be in writing, signed and acknowledged befora a notary.
Must be accompanied by a separate affidavit that states no consideration was received and no one paid you to disclaim. It also must be irrevocable The disclaimer or renunciation must be filed with the Surrogate's Court within 9 monhts after the date of death. |
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If I disclaim can my kids still get paid?
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Yes. But we won't go to per capita if it fucks over other people.
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What is the 6 point test for a validly executed will?
S E W P 2:30 |
1. Must be signed by the testator (or proxy)
2. Testators signature must be "at the end therof." 3. Signs in the presence of each witness 4. Must publish, which means "declare the document to be their last will and testament 5. Must be at least 2 attesting witnesses 6. This whole thing must be done in 30 days and that 30 days starts when the first witness signs |
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What is a codicil?
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A later amendment or supplement to a will which is executed with the same formalities (the 6 point test)
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What is the key to the NY rule?
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That the Testator sign in the presence of the witnesses.
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What does an attestation clause do?
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It gets it so the will is self-proved.
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What is a self-proving affidavit
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ITs attached the back of the will, witness signs it, its a substitute for the live testimony of the witnesses.
Its admissible to probate on the strength of the sworn recitals in the Affidavit unless an interested party objects, in whihc case the formal rules of proof of due execution aply. |
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What is the interested witness statute?
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It makes a bequest to a witness void unless
1. You get at least 3 witnesses, 2 of which are not interested 2. the interested witness would be an intestate distributee, in which case the whichever is least rule applies |
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When will a foreign will be admissible under the foreign wills act?
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END
If it was validly EXECUTED under the law of the state where it was executed, under NEW YORK law or the law of the state where testator was DOMICILED |
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Are Holographic and oral (nuncuptive) wills valid?
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NO
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What are the 2 ways a Will can be validly revoked?
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1. By subsequent, testimentary instrument, executed with appropriate formalities (6 part test)
2. A physical act |
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Does crossing out the signature with a big X constitue a physical act?
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Yes
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Describe how an will can be revoked by implicaction
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Typical revocation language is "I hereby revoke all wills heretofore made by me"
But if not, if the first will says i leave my property to a, and second says to b, you've got revocation by implication |
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How can you have revocation by physicla act by another person?
(How many people do you need in the room?) |
1. Act at testator's request
2. In testator's presence 3. Witnessed by at least 2 witnesses of the act So there have to be 4 people in the room. |
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What is the presumption if will was last seen in T's possesion or control and its not found after death?
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That T revoked the will by a physical act
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What are the only 2 ways a testator can make changes in her will?
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1. Create a new will which revokes the first will
2. Make a codicil Both need to be properly executed under the 6 point formalities |
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Can you revive a revoked will by destroying the latter will?
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No. It doesn't work like that. You always need a validly executed document to make a change, either a "republication by codicil" or have it reexecuted.
There is no automatice revivial of will #1 by revocation of will #2 |
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What is the Dependent Relative Revocation?
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The revocation of a will might be disregarded if it was premised upon a mistake of law (i thought by destroying the latter will i would automatically revive the first). What happens is you ignore the mistaken revocation and permit that will into probate
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When should DRR not be applied?
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If the will you are revoking gave it all to one person, and he's trying to revoke that, you shouldn't give effect to that will. He doesn't want that dude to get stuff.
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What is the "Proof of Lost Wills Statute?"
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A lost or destroyed will may be admitted to probate only if:
1. Still must prove that it was duly executed 2. Must establish that will was not revoked 3. Need to prove all of the provisions of the will by at least 2 credible witness or by a copy or draft of the will proved to be true and complete |
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What is the Anti-Lapse Statute?
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Normally, if a will beneficiary dies during the Testator's lifetime, the gift lapses. But sometimes it doesn't if this statute is in place. The gift will not lapse, but vest in the deceased beneficiary if....
1. The predeceased beneficiary was T's issue/brother or sister 2. The predeceased issue leaves issue who survives testator |
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What if you leave a will that says "To my brother Bob if he survives me? Does Anti-Lapse still apply?
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No. The words "if he survives me" trump anti-lapse.
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What is a lapse in residuary gift? AKA the surviving residuary beneficiaries rule?
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IF a testator's residuary estate is
1) devised to two or more people AND 2) the gift to one of them fails or lapses for any reasons AND 3) the anti-lapse statute does not apply the other residuary beneficiaries take the entire residuary estate, in proportion to their interests in the residue, absent contrary provision in the Will. |
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How does the class gift rule?
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If you are in the class and alive at T's death, you take. Otherwise, you don't.
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What happens when people in a class are named individually and one of them predeceases T?
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Things don't pass to the other class members. The share of the predeased goes to the residuary, not the other class members.
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What is the Uniform SImultaneous Death Act
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If 2 persons dies under circumstnaces such that there is insufficient evidence that they have died otherwise than simultaneous, the property of each is distributed as though he or she survived.
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What happens if testator is divorced after will is executed?
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All gifts and fiduciary appointments in favor of the former spouse are revoked by operation of law. You read the will asa though the spouse predeceased the testator.
If they reconcile or remarry, everything is back on. It only matters if they are divorced at time of testator's death. Fiduciary appointments are revoked by divorce, but guardianship of a child is not revoked upon divorce. |
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What happens if children are born after a will was executed?
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If no provision is made for any children, an afterborn child gets nothing.
If other children get something, the afterborn child gets an equal share. If it appeaars that the intention of the testator was to make a limited provision only to the testator's children living at the time the will was executed, then the afterborn takes his intestate share. If testator had no children when will was executed, then afterborn takes his intestate share. |
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What if you have an afterborn and the other kids are given specific amounts?
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Add up what the other kids got and divide by the number of children, including the afterborn. The afterborn gets that amount and it comes equally from the other children.
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What if the afterborn got paid from the life insurance policy? Does he still take from
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No. One of the requirements is that he not be cared for.
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Under NY law, what do we do with extrinsic documents?
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They are worthless unless they are executed.
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What are nontestamentary acts?
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T executes a will that says rich gets whatever car i have at my death. If T buys a mercedes, Rich gets that Mercedes. The only exception is with title documents (deeds, stock certificates and bank passbooks)
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What are nonprobate assets?
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These are all the things that aren't affected by the will. Things like your life insurance go to the beneficiary, not the person who you say in the will should be the beneficiary.
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"I devise Blueacre to my son John" is what sort of classification of gift?
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A specific Gift
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"I bequeth $5K to be paid from the proceeds of sale of IBM stock, to Donna" is what sort of classification of gift?
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Demonstrative Legacy
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"I give the sum of $5K to George" is what sort of classificiation of gift?
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General Legacy
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"I give all the rest, residue and remainder of my estate to my brother Jim" is what sort of classification of gift?
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Residuary Disposition
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What happens when there are so many claims against the estate that there aren't enough assets to cover all the gifts made by the will?
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The gifts under a will "Abate". They are not given effect so that the creditors claims can be paid.
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What is the order of "abatement" of testator's property to pay debts and claims?
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Start at the bottom and go up.
First we pay debts and expenses from intestate and residuary property Then, the general legacies abate pro rata Then the demonstrative legacies Finally the specific gifts |
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What is the NY rule on Exoneration of Liens?
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The CL rule was if you were specifically bequest a propert and it had a lien on it that testator was liable, you could have that lien paid from the residuary estate.
In NY, it doesn't work like that. Liens on specifically devised property are not exonerated unless the will directs exoneration. Even GENERAL PROVISIONS for payments of debts do not work to exonerate liens. |
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What is Ademption?
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Its the failure of a gift. If a Will makes a specific gift of property , and the property cannot be found or is not owned by the testator at her death, the gift fails under the doctrine of ademption, without regard to the testator's probable intent.
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What happens to a demonstrative legacy (a gift from a specific source) if there is no cash available from the specific source designated?
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It turns into a general legacy
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What are the 3 statutory exceptions to the Ademption Doctrine?
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1. Casualty insurance proceeds for lost, damaged or destroyed property (the beneficiary takes the insurance proceeds to the extent they are paid after death
2. Executory contract The beneficiary gets the sale proceeds which are paid after death 3. Sale by guardian or conservator of specifically bequethed property (beneficiary is entitled to recover money of the property into which proceeds of the sale can be traced and haven't been spent) |
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Do shares of stock in publicly traded corporations adeem if they no longer exist?
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No. They are general legacies. Unless it uses the magic word "my"
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Do shares of stock in a closely held corporation adeem if they don't exist?
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Yes. They are specific legacies.
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How are stock splits treated?
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They are treated as a specific request.
So if you leave me 100 shares in your will, and that stock splits, I get 200 shares. |
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In regards to mistakes and ambiguity, what will happen if there was a typo?
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Plain meaning of the Will will not be overturned by outside circumstances
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When is extrinsic evidence admissible?
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Its admissible where there's an ambiguity
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What if extrinsic evidence doesn't cure the ambiguity?
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The gift fails b/c there's no ascertainable beneficiary
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In cases of a patent ambiguty, Does admissible evidence include testator's declarations of intent to a third person?
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No.
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How do you handle a case of a conditional will where T says "if i die on this trip, i leave my property to X, Y, and Z"? then he doesn't die on the trip, but dies 3 years later, with no will and XYZ want to get paid.
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Argue that they don't take b/c The condition did not occur
Argue that they do because the part about the condition and the trip is sort of irrelevent. Basically he's saying if I die, do this. |
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What are K's relating to making a will and how are they treated?
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Its when you have a joint will and then one of the spouses dies and the other remarries and leaves his stuff to his "new family" and nothing to his "old family"
Step 1, probate the new will Step 2. impose a constructive trust in favor of the original intended beneficiary |
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What is the "negative bequest" rule?
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Words of disinheritance are given full effect, even in partial intestacy.
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What is the "Elective Share Statute?"
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It protects surviving spouse against disinheritance by giving spouse entitlement ot minimum share of decedent's estate
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What does the spouse get if her spouse tries to screw her in death?
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Her elective share. which is the greater of $50K or 1/3 of the estate
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Distinguish between elective share and intestate share
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Intestate is only if decedent didn't have a will. Normally intestate share is larger than an elective share.
Intestate share is 50K plus 1/2 balance of the estate |
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What are testamentary substitutes?
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It makes it so you REALLY can't screw your spouse by passing everything through non-probabte transfers.
To prevent this, the elective share applies to property owned at death and the testamentary substitutes. Ultimately, it gives us a more realistic view of the size of the estate. |
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How do I remember the list of T-Subs?
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TS LEG UP
T- Totten Trust ("A, Trustee for B)bank accounts S- Survivorship Estates like joint tenancies L- Transfers with a retained power to revoke E G- Gifts made within 1 year of death (in excess of 12K, or if made in fear of impending death, any size) U P- Powers of appointment- property over which decedent held a presently exercisable general power of appointment |
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What are not T-Subs?
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LOGPIT
L- Life Insurance O- G P- Premarriage irrevocable transfers I T. |
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What amount of any survivorship estate with a deceased spouse and a third is a T-SUB?
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Surviving spouse has the burden to show how much money was dead spouses.
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What amount of a survivorship estate with a surviving spouse is a T-SUB?
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1/2. every time.
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What is the rule about arrangements with 3rd parties made before marriage?
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Well, for those, only 1/2 are considered T-SUBS
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Can the intestacy share be more than the elective share?
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Sure, it can happen.
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What's the deal with people who die before 1994?
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Basically you could do life estates.
If the sum of (i) outright dispositions of at least $50k plus (ii) the principle of the trust, equalled or exceeded the one-third elective share amount, then surviving spouse had no right of election |
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Can a prenup include a general waiver of spouse's right to elective share or intestate share?
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Yes. But cannot waive rights to specific gifts made by the spouse's will. There must be an explicit waiver of such requests.
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Can an out of state deceased spouse claim an elective share to property in NY?
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No. Right of election only if deceased spouse was NY Domiciliary
The only exception is if the will includes an express statement that the will is to be governed by NY law. |
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What should I say about exempt property?
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in any question involving a surviving spouse, mention the exempt personal property set-aside. things like car, furniture, cash allowance, books, etc come "off the top" over and above property passing to the spouse by will, wintestate share or elective share.
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When is the spouse disqualified from taking an elective share?
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DISMAL
Divorce, Inavlid divorce/anulment procured by surviving spouse, Separation decree (not agreement) rendered against surviving spouse, Marriage is void, Abandonment and Lack of Support |
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What is the test whether Testator had sufficient capacity to make a will?
NVFD |
1. understand the nature of the act
2. Know the nature and approximate value of his property 3. know your family members and loved ones 4. Understand the dispositions of the gifts he was making |
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What should I keep in mind about testator capacity?
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It needs less capacity than required for any other legal instrument...Even if old and senile, surrogate could find that he executed during a lucid interval.
Courts really want to find wills valid |
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What is insane delusion?
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T is sane, but has a persistent belief in supposed facts which have no real existence except in T's perverted imagination.
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What is undue influence?
E O B4 |
Existence of testamentary capacity subjected to and controlled by a dominant influence of power.
Contestant must prove: 1. Existence and exertion of an influence 2. Affect of such influence was to overpower the mind and the will of the testator 3. The product is a will or gift in whcih would not have happened BUT FOR the influence |
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What situations, by themselves, are not enough to to prove undue influence?
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1. The opportunity to exert influence
2. Susceptibilitiy due to age or illness 3. Unequal dispositions |
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Why can't I draft my relatives wills?
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Because if a will makes a gift to one in a confidential relationship and that person was active in preparation ofthe will , then there's an inference of undue influence.
If the will makes a bequest to the drafting attorney, the Surrogate Court makes a Putnam Scrutiny even if no objection is filed to determine whether the gift was voluntarily made. |
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In order to name your drafting attorney as the executor, what do you have to do?
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L must give written disclosure:
1. that anyone can be name an executor 2. Has to state that executor receives a statutory commission 3. The attorney handling the estate will also be entitled to legal fees. |
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What is a no contest (in terrorem) clause and is it valud?
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A clause in a will that says if anyone objects to my will, they will get nothing.
In NY they are given full effect, even if you object with probable cause |
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What are the exception to the NY rule that no-contest clauses are fully enforceable?
F I C O |
1) forgery or that the will was revoked by a later will (no such exception for revocation by physical act)
2) Filed on behalf of an infant or minor 3) construction proceeding to construe will's terms (i'm not challenging the will, i just want to know what interests are created by it 4)Objection to the jurisdiction of the court |
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What are powers of appointment?
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An authority created that enables a personto designate who gets what property and how
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Define Donor, donee, and "takers in default"
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Donor is the creator, donee is the person whois given the power to use and takers in default are the persons who take the property subject to the power if the donee fails to correctly exercise the power
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What is a General Power of APpointment?
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A donnee can appoint to herself, to her creidtors, or to her estate. Its as if she owned the property herself.
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What is a special power of appointment>
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The donee cannot appoint himself- must give it according to the wishes of the Testator, ie, to a specificed class of persons that does not include the donee
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what is a presently exercisable power of appointment?
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Donee can exercise it right now
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What is a testamentary power of appointment?
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Donee can only appoint by will
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What is the NY rule on Wills where testator failed to exercise their testamentary power of appointment?
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A general will provision exercises all POA held by the donee trustee unless the instruments creating the POA called for its exercise by a specific reference in the donees will.
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Is a presently exercisable power of appointment a TSUB?
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Yes
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Is a testamentary power of appointment a TSUB?
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No.
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