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208 Cards in this Set

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How should all essays start for wills topics?
Under the EPTL (Estate Powers & Trust Law)
What is dying intestate
dying without a will
what is decedent
a dead person
what is dying testate
dying with a will
what is a testator
a dead person, with a will.
what is an "administration proceeding"
a proceeding to administer the property of a person who dies with a will
what does it mean to "probate assets"?
assets held in the decedent's name alone that do not pass by oepration of law and that which the executor administars in accordance with the decedent's will
what is "operation of law"?
property that passes automatically b/c of the way the property is held, i.e. is not affected by the existence of will or intestacy - think joint tenancy
who are is Issue
all people who have descended from a common ancestory.

Issue and descendents are synonymous and include those in direct line of inheritance with decedent, e.g. kids, grandkids
who are distributees?
those individual swho inherit property undeter interstate succession
who are beneficiaries
everybody who receives a bequest - sometimes called a legacy or devise (those who inherit property) under will
what is a residuary estate
balance of the testator's estate after all claims, taxes and "particular" bequests have been distributed. I.e. the "rest" of the estate.
When do the rules of descent and distribution in intestacy apply?
1) decedent left no will, or did not sign it or left a will that was not properly executed

2) will does not make a complete disposition of the estate (partial intestacy) typically due to fact tha tthere was poor drafting by the attorney.

3) will is successfully challenged by an intestate distributee and will is denied probate.
what happens if decedent failed to leave a will?
an administratie proceeding is started by an intestate distributee
What is the order of priority for apointing an administrator?
1) surviving souse

2) children

3) grandchildren

4) mother or father

5) sisters or brothers

6) other distributees
What happens if an intestate decedent is survived by her spouse, but not by any children, or issue of children?
the surviving spouse takes the entire estate.

nothing goes to other family members - siblings, parents, nothing.
what if an intestate decedent is survived by spouse and children (or their issue)?
1) surviving spouse takes $50k + 1/2 of residuary (balance of estate)

2) issue take over lest of residuary

3) if estate is less than $50k, whole estate goes to surviving spouse
what if an intestate decedent is survived by children only?
estate pases to children in equal shares
What happens if intestate is survived by children, and issue of predeceased children?
Estate passes to alive children, and the issue of the dead children, "by representation" -- or what also is called "per capita" at each generation.
How do you determine a per capita/by representation division?
1) Make the initial division of shares (one share for each line of issue) of the first generational level at which there are survivors (if at least one child is still alive, this will be children of predeceased)

E.g. lets say there are two dead children (A,B) and one living child C - then you would divide into 3 shares.

2) all living persons at that first generational level take one share each

E.g. C takes 1/3

3) Next shares of deceased people at the first generational level (here A,B)are combined and then divided equally among the takers at the next generational level in the same way (that is, among the dead people's kids; C's kids don't get anything b/c C is alive, and C took!).

E.g. if A had two kids (A1, A2), and B had 1 kid (B1), and C had three kids (C1, C2, C3)-- the 2/3rds share that A and B would be entitled to is divided EQUALLY among A1, B1, and B2.

So, A1, B1 and B2 would all get (1/3) of (2/3) - or 2/9ths!
Can the dead child try to leave his portion of his mom's estate to his wife, rather than to his kids?
NO! in-laws son't get anything through intestate distribution. It goes to kids, even if dead child tries to leave mom's estate to his wife.
what if the dead child had no kids?
than her portion is divided among the other living children.
what if all the children are dead?
then you use number of grandkids as number to divide share by
What does this method "per capita" result in?
people in same generation will always have EQUAL shares!
What is per stirpes distribution?
It is the distribution system that most states, and formerly NY used to use to determine how issue of deceased children take the share of their parents.
how does per stirpes distribution work?
Issue of a deceased child take the share that her parent would have inherited if living.

So, in above situation -
1) C would have taken 1/3
2) A1 would have taken 1/3
3)B1, and B2 would have each taken 1/6th
Is the per stirpes or per capita/representation method used in NY?
Per Capita/Representation!
Can an individual override the per capita division through a will?
YEP. a will can be used to override and change distribution to per stirpes
If a decedent has a will, does per capita at each generation still apply?
yes! unless decedent states otherwise.
when do per stirpes and per capita distributions have different results?
when more than one person at first generational level died, and all of dead children have issue

If only one person died, or only one person had kids - it would have the same results under both distributions.
what if someone dies intestate and is not survived by spouse or issue
everything goes to the parents; or surviving parent
what if someone dies intestate, not surivived by spouse, issue or parent
issue of parents take per capita at each generation (that is brothers, sisters or issue of brothers/sisters)
How are half-siblings treated in this process?
as if they were relatives of whole blood
when can a spouse be disqualified from taking their intestate share?
DISMAL
1) divorce - must be a final decree of divorce or annulment valid under NY law

2) invalid divorce -- if surviving spouse procured, outside of NY, a divorce or annulment not recognized as valid under NY Law (this is one way street - doesn't bar surviving souse, if deceased spouse procured invalid divorce/annulment)

3)Separation decree - rendered against surviving spouse (doesn't bar spouse if final decree of separation was rendered against deceased spouse). Only applies to separation decrees, not separation agreements, unless there is specific language in the agreement waiving one's rights under EPTL

4) marriage is void - incest, bigamy

5)Abandonement or Lack of Support - surviving spouse abandoned and refused to support deceased spouse
what if a spouse is disqualified from taking their intestate share through one of 5 methods?
you assume surviving spouse has predeceased the dead spouse, and drop their share to the kids, or whoever else is in line.
what are the rights of an adopted child and their issue?
adopted kids have full inheritance rights from adopting family (up, and down if adopted child dies first)
What about a child adopted by a new family - does he have inheritance rights from natural parents or other members of the natural family?
Nope. no rights against natural family once adopted, generally.
what are the exceptions to the rule that adopted children don't have rights against natural parents? what if the adopted parent is the spouse of a natural parent?
1) when child is adopted by spouse of natural parent (mom remarries, new husband adopts) - then child and its issue can inherit from the adopting parent AND either (both) natural parents -- and the family of tehse people too (grandparents of natrual mom, adopted dad, and natural dad -- but, if kid dies first, grandparents of natural dad don't have rights).
what are the exceptions to the rule that adopted children don't have rights against natural parents? what if the child is adopted by a relative (aunt/uncle) of the natural parent?
If adopted child is related to the decedent by both a natural relationship and the adopted relationship, the child inherits under the natural family only UNLESS the decedent was the adopting parent, then child inherits under the adoptive parent relationship only.
So, if grandparent X has kids, A, B, and C; and A has child A1 and A dies and B adopts A1, and then grandparent X dies, how does inheritance go?
estate is divided by 3 - and goes to A1, B, and C.
if grandparent X has kids, A, B, and C; and A has child A1 and A dies and B adopts A1, and then B dies, how does inheritance go?
then A1 shares B's estate with B's kids!
what is a class gift?
a gift to a group -- i.e. "to my children" "to my brothers and sisters"
What about "adopted out" children? If children are adopted out of a family, does adopted out child take as a beneficiary of a class gift made in the will of a member of the childn's natural family?
NO! adopted out kids have no inheritence rights from natural family, even if they give it as part of a class, e.g. remainder to issue.
What are the rights of a non-marital child, i.e. a child born out of wedlock?
1) full inheritance rights from mother and mothers family

2) inheritance from natural father ONLY IF PATERNITY IS ESTABLISHED BY A TEST
what are the tests for establishing paternity
1) legitimized by marriage - father later marries child's mother after birth

2) order of filiation in a paternity suit is entered during dad's lifetime, adjudicating dad to be child's father

3) father files a witnessed, acknowledged (before notary public) affidavit of paternity with a putative father registry

4) after death - paternity is established in a probate proceeding by
a) clear and convicincing evidence (participation in school activities, gifts, visitation) AND
b) openly and notoriously acknowledging child as his own

5) DNA test, plus clear and convicing evidence IF DNA is rebutted

NOTE - evidence of man's support of a child, is NOT enough.
What is the CL rule of Advancements - lifetime gifts to intestate distributees?
at cl, a lifetime gift to a child was presumptively an advancement (i.e. an advance payment) of his intestate share to be taken into account when distributing the estate at death.

this was based on misguided presumption that ech parent would always want to treat her children equally
What is ny's appraoch to advancements?
ny has rejected advancement presumption by statute. no advancement unless proved by

1) contemporaneous writing at the time of the gift (strict, 2 weeks later is too late)

2) signed by the donor or donee
what do you do if an advancement is found?
if there is an advancement, you take value of X's estate at death AND you add the "date of death value" of advancement property (that was given pre-death).

You then divide this total by the number of children, and then subtract portion from child who already received gift

(if child received gift worth more than fair share, that is fine, she is not required to pay overage back to the estate or anything)
What about a lifetime gift by Testator to a beneficiary -- "satisfaction of legacies" -- where a will exists?
at cl, a lifetime gift to a beneficiary named in a donor's will (executed before the gift was made) was presumptively in partial or total satisfaction under the legacy, to be applied against the amount to which the beneficiary wsa entitled under the will.
what is ny's approach to the satisfaction of legacies?
ny has rejected the satisfaction of legacies presumption by statute. In ny, such a gift is NOT treated as satisfaction of a legacy, UNLESS

1) contemporaneous writing at time of gift (strict, two weeks later is not contemporaneous) AND

2) signed by donor or donee
Can an Intestate distributee or a beneficiary disclaim/renounce an interest?
YES. no one can be compelled to be a beneficiary under a will or take property by operation of law.

a beneficiary under a will or an intestate distributee can disclaim or renounce (in whole or in part) their interest in the decedent's estate.
What is the effect of disclaiming/renouncing?
person who disclaims is considered to have pre-deceased the testator
what is needed for a valid disclaimer
1) it must be in writing, signed and acknowledged (before a notary public) AND

2) it must be accompanied by a separate affidavit that states no consideration was received and that no one paid you to disclaim (unless court authorizes receipt of consideration for disclaimer)AND

3) it must be irrevocable (after disclaimer is filed, you can't change your mind)

4) disclaimer or renunciation must be filed with surrogate's court within 9 months after date of death.
So, what is the effect of a renunciation? X and Y are kids of A and X disclaims? What happens to X's share
If X has issue, share will drop down to issue.

If X does not have issue, then it goes to Y.
What if A has two kids - X and Y -- X disclaims, and Y is already dead?
SPECIAL RULE APPLIES -

In theory, what should happen is that estate should be divided equally among X and Y's kids (since no issue of children available) BUT this isn't fair because y's kids *should* be entitled to 1/2 share.

So, we pretend that X "died" right after A. Divide A's share by 2 - and give 1/2 to Y's kids and 1/2 to X's kids (basically get per stirpes, b/c per capita might be inequitable).

POINT - disclaiming can't make someone's share less or more - can't screw over someone else's legitimate kids
why would anyone want to disclaim an inheritance or testamentary gift?
1) to avoid taxes, AND to avoid creditor's claims
2) BUT you can't dislciam to remain eligible under medicaid - this is against public policy.
what is a probate?
1) surrogate court's proceeding in which it is judicially determined that the decedent died with a validly executed will and the intestate distributees are determined (to put them on notice of the existence of a will) AND

2) a personal representative named in the will (the executor) is appointed by the court to administer the decedent's estate.
how old do you have to be to have a will
18
what are the requirements for a validly executed will? 6 point test!
1) Must be signed by testator (or by someone in testator's direction and in her presence). When T's name is signed by another person (proxy signature) such a person
a) must sign their name
b) cannot be counted as one of the two needed attesting witnesses
c) shall affix her address (but failure to affix address does not invalidate will)

2) testator's signature must be "at the end thereof"
a) so if a person signs will in the middle of the page, it will still be valid EXCEPT words following signature are not given effect at probate,
b) entire will is invalid only if matter following signature is so material that to give effect to that above the signature and not what is below would defeat the testator's intentions

3) testator must sign will or acknowledge his earlier signature in the presence of each witness

4) testator must publish will - publish means declaring the documetn to be last will and testament - requires communicating to witnesses that they are witnessing a will, and not some other legal document

5) there must be at least two attesting witnesses, AND

6) execution ceremony must be completed within 30 days. 30 days begins to run when first WITNESS signs (not testator)
what are NY's requirements on the signing of the will?
ny does not require that
1) witnesses sign in each others presence, or
2) that witnesses sign in testator spresence

KEY to NY - testator must sign or acknowledge her signature in th epresence of witnesses. that is it.
does the order of signing (testator, witnesses) matter?
no, so long as contemporaneous, and testator signs in witnesses presence
what if testator forgets to sign when witness signed, but adds signature in witness's presence a week later?
will is denied probate b/c it is NOT a contemporaneous transaction.

attesting witness MUST attest to testator's signature when testator signs will, or acknowledges his signature
how legible does a signature need to be?
it doesn't, an X is okay
can the testator be given aid in writing the signature
yes, so long as act was voluntary (can't be forced to sign a will)
do witnesses need to sign in one another's presence?
nope, not in ny.
how far apart, in terms of days, can witnesses sign from one another
any time, so long as 30 day rule is satisfied.
if a testator has already signed the will with a witness, what must testator do for the next witness?
testator can bring it to new wtienss, have new witness sign it, so long as testator acknowledges earlier signature when doing so, but need not sign it again in front of him.
who bares the burden of proof as to the due execution (meeting of 6 point test) of a will?
will proponent - i.e. one who is offering the wil for progate, generally the executor.
how can you show that 6 point test of due execution was met?
1) if will is not self-proved, both attesting witnesses must testify as to the facts necessary to show due execution

2) if one of witnesses is dead, absent from state, incompetent or cannot be found with due dilligence, testimony of one witness sufficies

3) if none of witnesses are able to testify, will proponents must prove at least two of the signatures - signature of testator and one witness
what is an attestion clause?
it appears below t's signature line, and above witnesses signature line - and recites all the elements of due xecution
an example of an attestation clause
On the above date, testator declared to us that the foregoing instrument was her Will and she asked us to serve as witnesses thereto. She then signed the Will in our presence, we being present at the same time. We then signed the Will as attesting witnesses in testator’s presence and in the presence of each other
what is the value of an attestation clause?
it is prima facie evidence of facts presented - but it is not legally required in any state
when is an attestation clause helpful
1) so probate of will does not turn on memory of attesting witness, and

2) hostile witness who claims it was power attorney or some other document -- attestation clause can be used to rebut that witness
what is a self-proving affidavit?
attached to the back of the will, it is a procuedre tha trecognizes that most probates are harmonious and no one is going to contest will's validity.

witnesses sign a sworn satement in presence of an attorney that recites all statements they'd make if called to testify in court -- that is that 6 point test was met!
when can the self-proving affidavit be signed
at any time after will is executed, but is usually signed at the same time as the will
how does a self proving affidavit differ from an attestation clause?
an attestation clause merely corroborates witnesses testimony - you still have to call witnesses to testify or else prove their signatures.

on the other hand, a self-proving affidavit is a substitute for live testimony of the witnesses.

Affidavit serves same function as a deposition or an interrogatory, i.e. a sworn testimony.
what function does the self-proving affidavit serve in terms of probating the will?
will can go directly to probate on strength of sworn recitals in affidavit UNLESS
an interested party objects, in which case formal rules of proof of due execution apply.

if that happens, you would again have to call two attesting witnesses to testify.
who is an interested party for the purposes of contesting a self-proving affidavit?
intestate distributee who is adversely affected by the admission of the will to probate
What if one of the attesting witnesses is also a beneficiary of the will? Interested Witness statute.
the fact that a beneficiary is attesting witness never affects the VALIDITY of the will.

only effect is that it makes the bequest to the witnes VOID UNLESS
a) supernumerary rule - there are at least 3 witnesses, and 2 are disintersted - therefore signature of interested witness-beneficiary is not needed to admit the will to probate

2) **interested witness would be an intestate distributee if testator had died without a willl
***If interested witness would have bee nan intestate distributee if testator had died without a will, how is his share determined?
Witness-beneficiary takes the LESSOR of
1) bequest under will, or
2) his intestate share.
what is the purpose of the interested witness statute
to avoid fraud
IS the interested witness statute triggered by compensation earned by an executor?
NO! only triggered by gifts given through will.
when can foreign wills be admissible for probate in NY? Foreign wills act
a will is admissible to probate in ny if it was validly executed under
1) law of sate where it was executed (even if such acts would not have been valid if executed in NY), regardless of testator's domicile at that time, OR
2) ny law, OR
3) law of state where executor was domiciled, either when will was executed or at death.

END - Executed, NY Law or Domicile
once will is admitted for probate in ny, what law governs construction and application of provisions?
NY!
what is a holographic will
a will entirely in T's handwriting, signed, but NOT WITNESSED.
can holographic wills be used in ny?
no. they are void in NY

EXCEPT if 1) member of the armed forces during declared and undeclared war (expires one year afer discharge) and for 2) mariners at sea


NOTE - if handwritte, but signed/witnessed/6-point test is met, it is VALID
what is an nuncupative will?
an oral will
are nuncupative wills valid in ny?
NO! oral wills are void in NY.

EXCEPT if 1) member of the armed forces during declared and undeclared war (expires one year afer discharge) and for 2) mariners at sea
what happens if a lawyer is responsible for messing up the signing of the will, and b/c of lawyers fault will is denied probate?
1) intended will beneficiaries do NOT have a cause of action against the lawyer b/c no privity of K b/w intended beneficiaries and lawyer.

2) only duty runs b/w contracted/dead person and lawyer - so at best, state can bring cost of drafting will suit against lawyer.
how can a will be revoked?
1) by a subsequent testamentary instrument - executed with appropriate formalities of 6 point test, OR

2) by physical act with intent to revoke (burning, tearing, cutting,c ancelling, obliteration, or other act of mutilation
what if you write "void" "i cancel this will" at bottom of will? and this is not properly witnessed by two people (so not busequent testamentary instrument)
this is still a valid will b/c writing void at bottom of will does not constitute a physical act.

BUT if you wrote VOID across the will, all over the document - that would be physical act.
What if you do something physical to the signature? cross it out? cut it out with scissors, etc?
That shows an intent to revoke teh entire will and will count as a physical act.
What does a later will need to do to revoke an earlier will?
1) can explicitly revoke earlier will - "i hereby revoke all wills heretofore made by me", OR

2) to the extent possible if you read two wills together, second will is treated as a codicil so that it revokes the first will only to the extent that there are inconsistencies; or

3) BUT if a second will is wholly inconsistent with the first will (will 1 leaves property to A, will 2 leaves it to B) - then first will is revoked "by implication"
can revocation be done by the physical act of another person?
yes, this is called revocation by proxy
what is required for a valid revocation by proxy.
it must be
1) at the testator's request
2) in the testator's presence, and
3) witnessed by at least 2 witnesses of the act.

So- 4 people must be in the room.
What is the presumption regarding revocation of wills?
1) if will was last seen in testator's possession or control and is not found after his death, presumption is that T revoked the will by physical act - and thus cancelled it.

2) where a will was last seen in T's possession or countrol and is found mutilated after T's death (e.g. torn in two)- presumptin is that T was the one who revoked the will by physical act.
When do these presumptions about revocation NOT arise?
when the will was last seen in the psosession of someone adversely affected by its contents - then we assume foul play.
Can these presumptions about revocation be rebutted?
YES - evidence is admissible to rebut the presumption of revocation where will cannot be found or is found in a damaged condition - e.g. T told witnesses destruction of will was accidental, T left will with attorney and attorney can't find it.
how can a testator make changes to her will?
1) by making a new will, revoking the prior will

2) by codicil - that is an amendment that only changes part of the will.

BOTH new will and codicil need to be properly executed under all formalities (6 point test) under the law.
can testator remove staples, make written changes on face of will after it is signed, rip off a page?
NO!
1) words added to a will after it is signed and witnessed are disregarded

2) partial revocation by physical act is not recognized - still an entirely valid will!
Can you revive a revoked will?
A will that has been revoked by a later will containing a revocation clause "I revoke all prior wills" CANNOT be revived simply by destroying the later will.

Rather it can only be revived in one of two ways
1) if it is duly re-executed (signed again by testator and 2 witnesses, meeting 6 point test)OR

2) the doctrine of "republication by codicil" applies (e.g. testator validly executes a codicil in the first Will that makes various changes

NOTE - in NY - no revival rule also applies to codicils
so, what do you need to make a change to a will?
a validly executed document.
what is the dependent relative revocation (DRR) doctrine?
CL doctrine that permits a revocation to be disregarded when premised upon, conditioned upon, or dependent upon, a mistake of law as to the validity of another disposition (e.g. that by revoking will #2, will #1 was revived.

Sometimes called the "second best solution doctrine" b/c the best solution - i.e. giving effect to will #1 - is not legally possible under NY law.
does the dependent relative revoction doctrine apply in ny?
it has been applied in one appellate division case, but never in the CofA.

If you are given a dependent relative revocation question, argue both ways.
when should DRR be used
only if the disposition that results from disregarding the 2nd revocation comes closer to doing what the testator tried (and failed) to do (that is reviving the first) - then the revocation.
what is the proof of lost wills statute?
requires that
1) due execution through 6 point test must be proven as in any case

2) must be established that will was NOT revoked
a) must overcome presumption of revocation that arises from will's non-production, OR
b) prove that the revocation should be disregarded b/c of dependent relative revocation

3) all provisions of will must be clearly and distinctly proved by each of at least two credible witnesses or by a copy of a draft of the Will proved to be true and complete.
does tearing up a codicil revive the gift of the original will?
no. only way to revive original will is through duly executing original clauses. otherwise gift will fall into residuary.
does revoking a codicil revoke the entire will?
no. revoking a codicil does not revoke the entire will. provisions in teh will that were not changed by the codicil, remain in full effect.
What is the CL regarding what happens if a will beneficiary dies during the testator's lifetime?
If will beneficiary dies during the testator's lifetime, the gift fails or lapses since you can't make a gift to a dead person, unless the gift is affected by a state's anti-lapse statute.

REALIZE this can show up on MBE in a real property question
What is the NY Anti-Lapse (does not fail) statute?
Ny's statute provides that the gift does not lapse/fail, but rather vests in the deceased beneficiaries issue who survives the testator, so long as two conditions are met.
1) pre-deceased beneficiary was T's issue, or brother or sister AND
2) pre-deceased beneficiary leaves issue surviving the testator

BOTH CONDITIONS MUST BE SATISFIED

Random note - T's son was adopted by non-relative. T still named him beneficary in his will. Son, who had children who were alive, predeceased T.

Court ruled that even though son was adopted out, because T named the son specifically, the adopted-out son's issue would take under anti lapse!
So, do anti-lapse statutes pass estate to the dead person to whom gift was given?
NO!!!!! In-laws lose! this will not go to spouse, etc. Only will pass estate along to issue!
How does the anti-lapse statute effect conditional gifts like, e.g. "To my brother bob, if he survives me"
gifts do not pass through anti-lapse if they are conditional upon survival by bequeathed person.

KEY - "if he survives me, trumps anti-lapse"
what is the surviving residuary beneficiaries rule? that is a lapse in a residuary's gift?
rule - if testator's residuary estate is
1) devised to two or more people AND
2) gift to one of them fails or lapses for any reason AND
3)anti-lapse statute does not apply,

THEN
Other residuary beneficiaries take the entire estate, in proportion to their interests in teh residue, absent contrary provisions in the will.
So, if T leaves everything to brother A, sister B and friend C; but C predeceases T leaving a son, what happens?
Well, b/c C is not issue of T, anti-lapse does not apply.

so, his 1/3 of the estate is shared equally b/w A and B.

But, if it was sister B who died with a child, then anti-lapse would aplly and A, C, and B1 would each get 1/3 share.

KEY - anti-lapse trumps surviving beneficiaries rule.
What is the rule for class gifts? (rule of construction based on presumed intent)
if a will makes a gift to a group of persons, generally described as a defined class ("children" brothers and sisters") and some class members predecease the testator, the class members who survive the testator take (absent contrary provision of the gift)

Rationale - testator was "group minded" in making the gift and wanted this class of persons, and no one else, to share in gift.

KEY - look to who is alive at testator's death to determine who is taker in class gift.
But, if Beneficiaries are named INDIVIDUALLY - e.g. "to Andy, Betty and Carl, the children of my brother Howard, in equal shares" But Andy predeceases?
Gift fails and it falls into residuary estate. It does not go to the others (Betty and Carl). But rather falls back into the residuary estate of decedent.

KEY - anti-lapse trumps class gift rule.
what is the rule of convenience?
it is the rule fo construction used to determine the takers in a class gift.

Called rule of convenience b/c any other solutoin woudl be inconvenient and disruptive of property ownership.
how does the rule of convenience work?
a class is closed (and later-born members excluded) at the time the distribution to the class must be made.

We close the class in order to determine the minimum share of each class member so a distribution can be made w/o the necessity of asking for a rebate or a refund later on.
How does the rule of convenience work for an outright gift by will to a class?
class closes at tesator's death, subject to gestation period (280 days from conception to birth)
How does the rule of convenience work for a life estate by will to a class?
if there is a gift of a life estate, or an income interest, with a remainder to class beneficiaries, the class closes at the DEATH OF A LIFE TENANT, or he deat of the income beneficiary
what happens if deaths are simultaneous?
under the Uniform Simultaneous Deaths Act (USDA) if two persons die under circumstances such that there is insufficient evidence that they have died otherwise than simultaneously, the proeprty of each is distributed as though he or she survived.

So, if two people die together, and there is no proof of who died first, presume that each one outlived the other when figuring out how to distribute property.
So, if Mom is insured for $25k life insurance policy naming son S as beneficiary, if he survives her; and otherwise to daughter Donna. Mom also executes a will leaving her estate 1/2 to S, 1/2 to D. Mary and Sam are killed instantly in plain crush. Sam has son Sam Jr. Who takes life insurance proceeds? Who takes residuary esate?
1) insurance proceeds - we assume mom died second, and all proceeds go to Donna.

2) residuary estate - donna takes 1/2. act as if sam predeceased mary here, but anti-lapse comes into play here b/c sam is issue and leaves issue surviving, so share drops down to Sam Jr. -- 1/2 to Donna, 1/2 to Sam Jr.
How does the USDA apply to jointly held property
Property passes as though each co-owners survived. USDA prevents the operation of the right of survivorship in the cases of jointly held property
(tenancy, or of the entirety) -- rather property passes as though a tenancy in common was involved, not a survivorship property.

KEY - USDA obliterates right of survorship in joint tenancy situations, otherwise it would just bounce back and forth b/w co-owners.
So, what if H and W die simultaneously and are joint tenants. h has two kids, A/B from prior marriage, and a son C with W. W has no other children. What distribution?
For H - act as if H survived - H's half drops to A, B, C

for W - act as if W survived - W's half drops to C only.
What happens if testator marries after the will is executed?
In ny, marriage following execution of the will has no effect on the validity of the will, but it may effect the gifts an dispositions under the will.

Because, NY law provides for a right of electoin which provides that one cannot disinherit his spouse.
what if testator is divorced after will is executed?
if testator is divorces or marriage is annulled after the execution of the will, all gifts and fiduciary appointments in favor of the former spouse are revoked by operation of law.

EFFECT - read through will as though spouse pre-deceased testator.

BUT - a vequest to son or daughter of former spouse is not revoked by a divorce
what exceptison exist to the rule that divorce revokes gifts and appointments in favor of former spouse?
1) appointment of former spouse as guardian of couple's children is not affected

2) if couple reconciled and remarry all provisions in favor of former spouse are restored

3) statute only applies if couple is divorced or marriage is annulled AT THE TIME OF TESTATOR'S DEATH (must be done-deal). Must be final divorce or decree of annulment (CONTRAST TO DISMAL!!!!!!!! separation doesn't matter!!!!)

NOTE - statute does not apply to insurance policies, only to assets passing via will to spouse.
What about children who are born or adopted AFTER the will is executed?
Afterborn and afteradopted children who are
1) not provided for by any settlement
*note - if an insurance policy is taken out on behalf of child, that is enough, and this rule doesn't apply) - AND
2)are neither provided for nor mentioned in the will.
----
inherit somewhat equally with siblings, b/c of policy assumption that parents just forgot to change wills.

NOTE - must be in gestation when T dies to be pretermitted (no frozen embryos)
what about kids who are alive when will is executed but are not included in the will, are they protected?
no! just for kids born or adopted after execution of the will.

parents are under no obligation to leave kids anything - if they want to leave one kid out, they can.
So, how does the statute pertaining to after-born or after-adopted children work?
1) testator had one or more children when the will was executed

a) if no provision is made for any children, afterborn inherits nothing (put on equal footing with other kids who existed)

b) if will made gifts to testator's other children, afterborn children share in amount of other children as if a class gift was made.
*if children were given different amounts, you add all those amounts up together, divide by number of children and give that portion of share to the afterborn.

c) if it appears that the intention of the testator wsa to make a limited and nominal provision only to testator's children living at time Will was executed, then aferborn child takes his intestate share (comes from beneficiaries proportionately).

2) If testator had no children when will was executed, then after born takes his intestate share.
What is "incorporation by reference" of an intrinsic document?
CL - terms of extrinsic document, not present at time will is signed (and thus not part of will itself) can be incorporated by reference if
i) documetn was in existence when will was drafted, and
ii) Will shows an intent to incorporate the document, and
iii) the extrinsic document is clearly identified by the language in the Will
does NY recognize "incorporation by reference"
NO! NY does not recognize incorporation by reference! everything must formally be executed (6-point test) to be a part of the will.
What are "Acts of independent significance" - non-testamentary acts doctrine?
Sometimes people do lifetime acts tha thave their own purpose or motive, independent of any testamentary purpose. These are acts taht occur after the will is executed and should be given their full effect when distributions are made.

E.g. if dad gives son his "car" and then upgrades to a much nicer car, son gets much nicer car (applies to all tangible property)

EXCEPTIONS - for title documents (deeds, stock certificates, bank passbooks) can only be transferred as mandated by law.
What are probate assets?
property that decedent owned solely in his name at the time of his death. It is disposed of pursuant to terms of the will an dis referred to as the probate estate.
What are nonprobate assets
those that are not subject to the disposition under the Will and therefore not a part of the probate estate
What assets are non-probate assets?
1) property passing by right of survivorship (bank account, joint stock account, etc
2) property passing by contract, e.g. life insurance policy, employment benefits payable to beneficiary other than decedent or decedent's estate (if paid to insured's executor or insured's estate, it becomes a probate asset)

3. property held in trust including a revocable trust (trust terms govern disposition of the assets)

4. property over which decedent held something called the "power of appointment"
POINT - will is ineffective to non-probate assets
What are testamentary gifts -that is the classifications of gifts that can be made by will?
1) specific gifts

2) demonstrative legacy

3) general legacy

4) residuary dispositon

5) intestate proeprty
What is a specific gift in a will?
only asset can satisfy the gift - "I devise my dell computer to my son John"
what is a demonstrative legacy?
a general amount form a specific source.

I bequeath $5k to be paid from the proceeds of sale of IBM stock to Donna (designates where money should come from)

NOTE - to the extent that they can be satisfied from a designated source, demonstrative legacies are treated as specific legacies for abatement purposes.

To the extent the fund is insufficient, demonstrative legacies are treated as general legacies for abatement purposes
what is a general legacy?
a gift of a general dollar amount.

i give the sum of $5k to george
what is a residuary disposition
i give all the rest, residue and remainder of my estate to my brother Jim.
what is intestate property
if partial intestacy results b/c will was poorly drafted (e.g. will has no residuary clause)

I give 50k to frank. frank is dead.
what happens if there are so many claims against the estate that there aren't enough assets to cover all the gifts made by the will?
gifts will "Abate" - i.e. they are not given their effect so that claims of creditors can be paid.
Absent a provision in will to the contrary, what is the order of abatement of a testator's property to pay debts and claims?
1) residuary benefits abate first; then residuary disposition; then general legacy; then demonstrative legacy; and finally specific gifts
*within each class, no distinction is made b/w real and personal property
2) items that qualify for teh estate tax marital deducation are ALWAYS the last to abate.
What if a specific gift is encumbered by a mortgage or other lien? E.g. if testator maked a specific gift of property, but it is mortgaged?
CL - beneficiary was entitled to have the lien exonerated, i.e. paid from the residuary estate

NY - liens on specifically devised property are NOT exonerated, unless the will directs exoneration.

General provisions for payments of debts do not exonerate liens (e.g. I direct that my executor pay off all my debts out of my residuary estate as soon after my death as is practicable -- this does not work -- for exoneration it must be VERY SPECIFIC.
What is ademption?
failure to make a gift.

if a will makes a specific gift of property, and that 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 intent.

**So, if specific gift doesn't exist, person getting that gift, loses!***
Does ademption apply to all gifts?
NO! ademption does not apply to general and demonstrative legacies!

1) Demonstrative legacy (gift from a specific source) will turn into a gneeral legacy if there is no cash available from the specific source, and
2) assets will have to be sold to satisfy demonstrative or general legacies, if there is no cash in the estate or if the designated account no longer exists.

BUT - a specific gift does adeem. Notes/mortgages associated with it become part of the residuary estate, and do not go to person who specific gift was granted to.
What is the statutory exception to the ademption doctrine?
1) casualty insurance proceeds for lost, damaged or destroyed property --
Beneficiary takes the insurance proceeds to the extent they are paid AFTER DEATH. (if insurance proceeds had been paid during T's life, ademption applies and gift fails)

2) executory contract - beneficiary gets sale proceeds which are paid AFTER DEATH.
*so, if T leaves W blackacre, but then enteres into executory contract to sell Blackacre, and it closes pre-T's death (even by a day), W gets nothing

3) sale by guardian or conservator of specifically bequeathed property -- beneficiary is entitled to receive the money or property in to which the proceeds of the sale if transfer can be traced and they haven't been spent. (BUT if you can't trace, it adeems).
*So, if T becomes incapacitated, and T's conservator sold Greenacre to raise funds for T's care (greenacre having been devised to Fred) - Fred is still entitled to profits from sale so long as they are still available, and can be traced.
does ademptoin apply to property taken by eminent domain while T is alive?
yes. reason why asset is not in the estate is irrelevant. W will get nothing.
Do gifts of shares of stock in publicly traded companies adeem?
no, they are general legacies so don't adeem.

UNLESS - it says "I give MY stock" which evidences an intention to make a specific bequeast.
Do gifts of shares of stock in a closely held company adeem?
yes, they are specific gifts, and so will adeem if they don't exist
What if T is left $5000 from sale of Acme stock, but then G sells Acme stock and buys a Cadillac?
T gets $5000 from esate, b/c this is a demonstrative gift and so doesn't adeem.

But, if T still owned stock at death, executory would be under a duty to sell it to raise the $5k.
"I give my 100 shares of IBM common stock to my sister L." Then IBM stock is sold and AT&T is bought
this is a specific gift. ademption applies and L gets nothing.
"I give 100 shares of kodak common stock to my brother." Kodak then is sold for IBM
No "my" so not a specific gift, but a general gift. Ademption doesn't apply. Brother gets value of 100 shares, even though stock was sold.
"I leave 100 shares of Family Co to my brother carl" then 100 shares are sold.
shares of closely held corp are specific gifts and so adem. Carl gets nothing!
What if there is a stock split? Calr is left 100 shares of kodak, but kodak has since split.
If it is public company or not, if possessive pronoun (my) is used or not, -- person still gets 200 shares of kodak.
Does person getting specific gifts of stock get dividends?
yes, any paid after death goes to person getting specific gifts.
What if Tess leaves "my 100 shares of Tracor stock to my daughter nora" then tracor is bought in friendly purchase by IBM, each person owning tracor now gets 5:1 shares, so 500 shares of IBM. This is clearly a specific gift. Does it adeem?
NO! In friendly takeover, even though specific gift, ademption doesn't occur. So long as New stock is directly traceable to old stock - there is just a change in form, not in substance.
What if There is a MISTAKE in the draft of a will? Tom meant to leave 200 shares, but only wrote 100, and did not notice this when he signed the will?
RULE - plain meaning of rule will not be overturned by extrinsic evidence.

if he made a mistake, the mistake is what counts.

Absent suspicious circumstances, it is conclusively presumed that Tom will read will and intend its consequences.
What if there is a latent AMBIGUITY (misdiscription, where error is not evident by looking at will)? E.g. T leaves money to nephew John Paul Jones, but has one nephew John Paul, and one nephew Paul Jones?
Then, extrinsic evidnece IS ADMISSIBLE to clarify meaning of T's words.
what extrinsic evidence is admissible to clarify an ambiguity?
1) facts and circumstances evidence about testator, his family, the claimants under the will and their relationships to testator 's habits and thoughts

2) testator's declaration of intent to third parties

3) testator's statements to 3P wh oprepared the will.

NOTE - if extrinsic evidence still can't cure the ambiguity, the gift fails b/c there is no ascertainable beneficiary.
What if there is a PATENT AMBIGUITY (mistake on the face of the will) -says "I leave twenty five dollars ($25,000)"? Is extrinsic evidence admissible?
YES.
what sort of evidence is admissible to clarify a patent ambiguity?
1) evidence about facts and circumstances
2) statemetns to his attorney
BUT NOT
3) evidence of testator's declarations of intent to third person (that is, evidence that contradicts what the will says won't be allowed).
what sort of language must be used to leave a gift
definitive.

no - i hope to leave, i'd like to leave.
what do you do with conditional wills? E.g. i'm going mountain climbing, if anything should happen to me, give everythign to Y. i live through mountainclimbing, later die without another will.
1) probate is denied b/c condition didn't occur
OR
2) reference to trip merely reflects inducement to write the will, but will itself should still be applied.

ARgue both sides
Can joint wills be made such that a survivor is not allowed to revoke the joint will after the death of the other person?
YES - but only by an EXPRESS STATEMENT that Will's provisions are intended to be a contract between the parties.

This rule supersedes a CL rule that sometimes found that a contract promising not to revoke from the use of "we, our, us" language -- now need an express statement to create irrevocable joint will, not just joint language.
what happens if you have a joint will, someone dies, and survivor breaches contract by writing a new will inconsistent with the old will?
1) probate new will even though first will was a conract (wills law controls to this extent)

2) compose a constructive trust in favor of the original intended beneficiaries

NOTE - a contractual joint will can be revoked by agreement of the parties while they are both alive.
what is the CL rule for dealing with a Will that does not make complete distribution of the estate (resulting in partial intesacy), and includes words of disinheritance?
CL - words of disinheritance in will are not effective.

Property passing by laws of intestacy are governed by intestacy laws, not will.
What is ny's appraoch to this issue - NY's negative bequest statute?
words of disinheritance are given their full effect, even in partial intestacy.

so, even if residuary estate exists, disinherited child gets nothing!


but, if disinherited kid has her own children, they would take 1/2 as issue of child b/c of anti-lapse statute, since only daughter was disinherited.
what is the elective share statute? This is when person leaves a will, doesn't die intestate.
it protects the surviving spouse against disinheritance, by giving spouse entitlement to minimum share of decedent's estate
So, if a person dies with a will, but doesn't leave much to their spouse, what is spouse entitled to?
Under elective share, whatever is MORE
1) $50k, OR
2) 1/3 of the total estate (this is net estate after payment of debts, but before payment of estate taxes)
So, how does elective share statute contrast with surviving spouse's intestate share?
1) Intestate Spouse
a) if no kids, entire estate
b) if kids, $50k, PLUS 1/2 of balance of estate

Elective share - whichever is more
1)$50k
2)1/3 of estate.
what property does the elective shares statute apply to?
1) property owned at death, AND

2) testamentary substitutes - LEG UP

a) **totten Trusts - bank accounts ("A, trustee for B)
b) **survivorship estates - joint property which passes to survivor by law - joint tenancies, tenancies by the entirety, joint and surivovr bank accounts, but only if created on or after 9-1-66
c)**Lifetime transfers, with strings attached (revocable trusts) - transfers with a retained power to revoke, invade, consume or dispose of principal or name new beneficiaries AND irrevocable transferes (made during marriage) with retained life esstate made on or after 9-1-92
d)Employment pension, profitsharing, deferred compensation plans IF (ignore this one)
e)**Gifts made within one year of death
f)United States Govt. Bonds (savings bonds and other POD, pay on death, arrangements
g)*8Powers of appointment - property over which decedent held a presently exercisable power of appointment, but not property over which he held a general testamentary power.

Key - if if testator still had an interest, probably a testamentary substitute
why do we include these testamentary substitues in elective shares calculation?
b/c otherwise spouse could screw over spouse by converting everything into t-subs and defeat policy of elective share statute!
what are not testamentary substitutes and do not effect elective shares statute?
LOGPIT
1) **Life insurance whether payabel to surviving spouse or third party
2) one half of qualified pension and profit sharing benefits
3)gifts made within one year of death, within $12k annual exclusion
4) **pre-marriage irrevocable transfers - gift to a friend prior to marriage
5) irrevocable transfers made more than one year before death - transfers in which grantor did not retain power to revoke, invade, consume or dispose of principal
6)Transfers (irrevocable) with retained life estate made before 9-1-92 and during marriage
So, with a survivorship estate, what amount is a testamentary substitute?
When dealing with survivorship estates of a deceased spouse with a 3rd party (joint tenancy, joint bank account) - "consideration furnished" test applies
what is the consideration furnished test?
surviving spouse has burden of proof as to amount of decedent's contribution to the assets acquisitions (joint property) or the deposits in the bank account.

so, you're entitled to an elective share of your dead spouse's property, NOT property that belongs to someone else.
What if its a survivorship estate with surviving spouse (joint tenancy, tenancy in entirety, joint bank account)?
1/2 of value of property is a T-sub

NOTE - if spouse is entitled to money out from T-subs, and joint property of hers with spouse is part of it (joint tenancy, joint bank account) - take spouse's portion of elective share out of this joint property first.
what if spouse will do better (take more value) through laws of intestacy than through elective share?
don't exercise elective share! b/c spouse isn't getting screwed then!
if spouse is owed money through her elective share, how do you satisfy it?
all other beneficiaries contribute pro rata (proportionately)
what beneficiaries are included to contribution requirement.
all - beneficiaries under will, beneficiaries of testamentary subsitutes, intestate distributees.

Don't have to give actual asset to surviving spouse, just money equal to whatever kickback is deserved to surviging spouse
Is there a way to eliminate a right to an elective share?
yes, for estates of decedents dying before 9-1-934, right to elective share can be wholly eliminated through use of an elective share trust that gives surviving spouse a life estate (income interest for life) so long as at least $50 was given outright to spouse.

If sum of
i) outright dispositions of at least $50k, PLUS
ii) principle of trust
-- equalled or exceeded 1/3 of elective share amount, then surviving spouse had no right to election.
Can you still use this method to eliminate the elective share?
NO!Rule only applies to people dying on or before 9-1-94!!!

BUT this can still show up on bar if you have a will executed prior to 9-1-94 with on elective share trust -- BUT elective share trust does not apply b/c guy died after 1994 -- so you have to go through elective share rules!!!

BUT, you only want to kill the trust, if the surviving spouse's elective share is NOT being satisfied. If it is being satisfied, then let the trust go . . .
what happens to spouse's trust income interest if she files for an elective share?
read trust as if surviving spouse predeceased testator, as though NO life esate in W existed, and accelerate the remaind e interest.
what about a prenuptial agreement, or general waiver, to all rights in a spouse's estate?
this waives right to elective share or intestate share, BUT does not waive rights to specific gifts made by spouse's Will. There must be an explicit waiver of such bequests.
when can a spouses be disqualified from taking their elective share (and exempt personal property)
DISMAL
1) Divorce - final decree of divorce or annulment valid under NY law
2) Invalid divorce/annulment procured by surving spouse
3)Separation decree(not agreement) rendered against surviving spouse
a) in separation agreemtn, you must specifically waive right under EPTL for an agreement to knock out an elective share)
4) MArriage - void as incestuous or bigamous
5)Abandonment or Lack of Support

So note - a decree of separation disqualifies spouse from filing for an elective share, but does not disqualify spouse for taking under decedent's will.
Who can claim a right to an elective share under the EPTL?
1) only the spouse of a decedent who is DOMICILED in NY at time of death has a right of election (so if H dies in FL, will is probated in FL, but real property is in NY -- spouse does not have elective share right to NY property)

EXCEPT - if decedent expressly stated in his will that disposition of his real property in NY should be governed by NT law -- in which case all non-NY property will be taken into consideration when evaluating elective share right under NY law. NY court adjudicate ownership of out-of-state property, but NY rules will govern.
Are any items set aside for surviging spouse or minor children? that is, assets that are not deemed part of the decedent's estate and are not subject to administration - where decedent has no power of disposition over them?
In any question involving surviving spouse - it will strengthen your answer to mention - the following exempt personal property
1) car up to $15k
2) furniture, appliances, computers up to $10k in value
3) 15k cash allowance (not subject to creditors claims, except funeral expenses
4) animal, farm machinery, tractor (up to $15k)
5) books, pictures, videotapes, softwares up to $1k
6)total value of exempt personal property can be as high as $56k

UnLESS bar examiners specifically put these into play (car worth $15k) do not mention this up front.
In contesting a will - issue is whether docuemtn offered for probate is a valid will. What are grounds for denial of probate:
1) defective execution

2) valid revocation

3) lack of testamentary capacity

4) undue influence

5) fraud

6) mistake
In contesting will -- what are the issues needed to prove a lack of testamentary capacity?
burden of proving testamentary capacity is on the will proponent - at time of executing will, testator must have sufficient capacity to:

1) understand the nature of the act (that he was writing the will)

2) know the nature and approximate value of his property

3) know the natural object of his bounty - know family members and loved ones AND

4) did he understand dispositions/gifts that he was making

NOTE - capacity to make a will requires less capacity than required for any other legal instrument. Surrogate could find testator executed will during "lucid interval."

KEY - courts generally try to find wills valid
What is an insane delucion?
T is of sound mind on other issues, but has persistent belief in supposed facts which have no real existence except in T's perverted imaginatoin.

Facts are against all evidence, probability and control and produce exercise of testamentary act.

PAranoia -T, a 77 year old widow, fighting cancer and taking morphine, believes there is a conspiracy against her by clinton and bush, and leaves all her moeny to nader
what is undue influence?
existence of testamentary capacity subjected to and controlled by a dominant influence of power.
how is undue influence proven?
burden of proof is on person contesting will to prove:

1) existence and exertion of influence AND

2) effect of such influence was to overpower the mind, and the will of the testator, AND

3) the product is a will or a gift in a will which would not have happened but for that influence
a) influence is not undue unless the free agency of the testator was destroyed such tha the will produced is essentially a will, not of the testator, but of the one exerting the influence.

*pleading, begging, nagging, cajoling, or even threatening do not constitue undue influence -- free will of testatory must be DESTROYED, i.e. testator's mind must be overpowered.
how do you prove undue influence.
generally through circumstantial evidence
what is a donor
person who creates a power of appointment and gives thi mechanism.
what circumstantial evidence is NOT enough to prove undue influence
1) opportunity to exert influence (fact that one child received major part of estate, lived with mom, helped her write checks, and helped on her income taxes) is not evidence that opportunity was taken advantage of.

2) susceptibility of influence b/c of age or illness is not enough

3)unequal dispositions among kids is not enough
will undue influence be found if portion of estate is left to someone who helps prepare the will?
YES!!!

1)IF a will makes a gift to a person that is in a confidentail relationship AND
2) that person is active in preparing the will THEN
3) you have an inference of undue influence which satisfies will contestant's burden of proof, if not rebutted.

KEY - if the will makes a bequest to a drafting attorney, the surrogate court makes a 'Putnam Scrutiny' even if no objection is filed (i.e. an automatic inquiry) to determine whether gift was made voluntarily.
what is a donee
person given power of appointment
What if a will does name a drafting attorney as an executor?
drafting attonrey must give written disclosure to the client that
a) any person can be made an executor, not just an attorney aND
b) that executor receives a statutory commission AND
c) attonrey handling estate will be entiteld to legal fees for representing estate

**Client must sign acknowledgement with two witnesses. Effect of failure to comply with this statute subjects attornesy to only 1/2 of statutory commission**8
What happens if there is a clause in the will that says "if anybody objects to my will, they/the objector will get nothing" - that is a no-contest, in terrorem clause?
MAJ - no contest cluases are given full effect unless court finds that contest was brought in good faith an dwith probable cause (wasn't frivolous designed to extract settlement)

NY - clause is given full effect EVEN IF probable cuase existed to challenge will.
who is a taker in default
persons who take property, subject to power, if donee fails to correctly exercise power.
Are there any exceptions to the NY rule that no contest clauses are fully enforceable?
YES . If will contest is about
1) forgery or that will was revoked by a later will. But only if surrogate finds probable cause for contest
a) doesn't apply if contested on ground that will was revoked by a physical act, only by a later act

2) filed on behalf of an infant or incompetent (action taken by 3P shouldn't work as a forefeiture)

3) construction proceeding to contrue will's terms (not challenging will, just want to know what interests are created in it)

4) objection to jurisdiction of court (e.g. that testator was domiciled in nj, not ny - not challenging will, but where it should be probated)
what are powers of appointment
authority created in or reserved by a person enabling that person to designate, within limits prescribed by creator of pwoer, the persons who shall take property and the manner in which they take it.
what is the general power of appointment
donee can appoint property to herself, her creditors, or to her estates as if she owned property herself
what is the purpose of powers of appointment
allows people to look at facts in existence at a later date when distributing property
what is the special power of appointment
donee cannot appoint to herslef. typically there is a limited class to who donee can appoint.
what is a presently excercisable power of appointment
donee can exercise it right now, during lifetime, like a trust instrument
what is a testamentary power of appointment
donee can only appoint by will.