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49 Cards in this Set
- Front
- Back
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Intesatcy Distribution
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Any property not passing by will or operation of law will be governed by the intestacy statutes in the NY EPTL 1) spouse gets $50,000 &1/2 estate 2) no spouse, kids inherit entire estate 3) Parents and brothers sisters 4) 1/2 maternal grandparents & issue -paternal 5) PER CAPITA DISTRIBUTION - think each generational level will take the same. Can change it to Per stirpes in will which is by representation |
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Will execution requirements
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In order to probate a will under NY law, proponent of will must establish; 1. T has Testamentary capacity (18) 2. Signed at bottom of will or had a person sign for him (such person not a W 3. Published to Ws they are witnessing will 4. 2 attesting signed (not in front each other or in front of T 5. W signed within 30 days each other 6. each W signed in his or her capacity as a W 7. T signed in presence of 2 attesting or acknowledged signature in their presence. |
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Modification of will
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IN NY a will may only be amended by a document (codicil ) that complies with all of the formailities required in will execution
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Interested Witness Statute
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Under NY EPTL, A bequest in a will to one of the attesting witnesses does not invalidate the will but that bequest will fail UNLESS a. There are two other disinterested witnesses (supernumerary rule) OR if the interested witness is also an intestate distributee He takes the lesser of the two |
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Executor as beneficiary or Witness
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Under EPTL , beneficiary can be a benef or witness. It has no effect on will or bequests.
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Revival of revoked wills
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under the NY EPTL , revocation of a later will DOES not revive a prior will. Even if the T thought that the will would be revived the doctrine of Dependent relative recovation is uncertain in NY. It has been denied in several cases but applied by appellate in one department and recognized in some dicta. The DRR is where the intention to revoke is conditional and where the condition is not fulfilled the revocation is not affected.
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Inheritance Rights of Adopted children
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under NY EPTL, An adopted child inherits the same as a natural child. Applies to adopting parent and adopting parents hamily
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Incorporation by reference
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In NY all will provisions must satisdy the will execution formailities. Any writing not part of the will cannot be incorporated by reference by merely referring to it in a will because the writing does not independently satisy the will execution formatilites. THE EXCEPTION IS A VALID POUR OVER DEVISE TO A TRUST. A t CAN INCORPORATE A TRUSTS PROVISIONS INTO A WILL IF THE TRUST WAS CREATED CONTEMPORANEOUSLY WITH OR PRIOR A WILL.
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Residuary clause
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A residuary clause is a clause that gives the remainder of the estate to one or more beneficiaries. comes after all other specific bequests and devises. Any specific that fails will pass into residuary unless provision to the contrary. If not residuary clause ir it fails in whole or part, will be distributed by laws of intestacy.
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Non Probate Assets
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These are assets that pass by operation of law or through contract. Non probate are not part of a Ts probate and pass outside of the will. Generally if a T attempts to bequest a non probate asset, the bequest is ineffective. in addition a beneficiary of a non probate asset can only ve changed by methods consistent with the speciified asset
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Totten Trust
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TT is created when a person opens a bank account for himself as trustee for anohter. If a beneficiary to a TT survives the depositor m trust terminates and title to the funds vest in the benef free and clear of the trust. Totten trusts are revocable by will and during lifetime of the creator. to revoke 1. Withdraw all funds OR 2. Deliver signed, written acknowledged revocation to the bank naming financial institution and the new beneficiary. TT can be revoked , terminated , modified by a provision in the depositors will only by an express direction concerning such trust account, which must name beneficiary and financial institution. |
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Joint bank account - convenient accounts
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Under NY law a contestant may overcome the right of Surivivorship in a validly exexcuted joint bank account by showing that the account was set up merely for convenience of parties.
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Per Capita Distribution
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Default way is by representation (per capita) Property is divided in as many equal shares as there are surviving issue in the generation nearest to the deceased ancestor which contains one or more surviving issue and deceased issue in same generaltional level who left surviving issue. Each surviving member gets their share . the reamining are combined and divided among surviving issue of deceased issue. |
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Per Stripes Distribution
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under NY EPTL , per stirpes means that the gift should first be divided at the first generation of living taker , the undistributed shares are not combined but rather they are dropped to issue of predeceased takers in 1st gen.
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Inheritance rights of children
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Under NY EPTL, a child has no rights to his or her parents estate if the parent chooses to leave him or her out of the will. the only time a child will have rights when omitted from the will is if it was a pretermitted child.
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Inheritance rights of non marital children
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same as biological. Child is always biological of mother filliation proceeedings. - clear and convincing evidence including openly and notoriously treats child as own |
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Specific Disinheritance
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When a T disinherits a person in his will, NY courts will give that clause full effect and we act as though that person predeceased.
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Pretermitted Child Statute
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A child born after the execition of a will AND who is not provided for in the will, may be entitled to a portion of the deceased parents estate. if the T had children when the will was executed the afterborn will 1.take nothing if siblings were not provided for in will 2. Share pro rata if significant dispositions were given in will to siblings 3. Receive intestate share of deceased parents estate if only nominal gifts given HOWEVER if an after born is provided for by lifetime settlement then not entitled regardless of bequests to siblings |
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divorce revokes testamentary provisions to former spouse |
under NY EPTL, final decree of divorce, TERMINATES all bequests, fiduciary appointments in favor of ex spouse under a will. DOES NOT AFFECT GUARDIANSHIP APPOINTMENTS. |
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Revocation by physical act |
A will can be revoked by execution of new will OR physical act (mutilation, destruction or alternation to Ts signature) Minor alterations don't count. If original was last seen in Ts possession it raises a rebuttable presumption that will was revoked by physical act. If it was in the possession of another it is presumed not to be revoked. If lost can't still be admitted to probate if 1. Proof of due execution 2. proof it was not revoked AND 3. proof of wills contents |
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Partial Revocation by physical act |
A T can revoke by physical act HOWEVER NY does not recognize partial revocation by physical act. Cross out with new words added not valid as NY doesn't recognise holographic wills (signed but not witnessed except for mariners at sea) In NY a will can only be amended by codicil (complies with formalities). Therefore crossing out would have no effect. |
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Inconsistency of Subsequent will or codicil |
when a later will is silent as to the revocation of an earlier will, the court will attempt to read the two wills together treating later as codicil to the earlier but if the two wills cannot be read consistently is deemed to have been revoked by implication by is by the execution of the later will. |
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Anti lapse statute |
Under the NY EPTL, when a beef dies, the bequest fails unless provision in the will to the contrary. When a gift to a class is involved, whether the interest of the predeceased member will go into the residuary estate or be divided amongst other class members depends on whether names group or specific people. If named, gift will lapse and fall into residuary. However if a gift to deceased beneficiary will not lapse if statute applies. |
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Anti Lapse cont |
Anti lapse provides that, where a beneficiary, under a will, predeceases the testator, the gift will vest in the issue of that predeceased benef if; 1) The predeceased is issue or sibling of T AND 2) The Predeceased leave issue that survive T where names a group will be shared among them. |
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Anti lapse for adopted out children in will |
UNDER NY EPTL the general rule is that adopted children take under the adoptive family not the natural family. Exception to the rule when natural birth parents specifically name the adopted out child. Considered issue for anti lapse purposes.
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Ademption |
Under NY EPTL specific bequests which no longer exists ADEEM which means the beef cannot receive the value of these gifts from the estate. EXCEPTIONS: 1. When property sold under contract & proceeds are paid at Ts death 2. when property is destroyed and insurance proceeds paid after death ONLY APPLIES TO SPECIFIC BEQUESTS With DEMONSTRATIVE bequests - gift to be satisfied from designated source and then made up from rest of the estate if necessary. Gifts share of stock (Publicly traded) are general Gifts share of stock where stock split (specific) |
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Abatement |
more claims than assets to cover. Abatement is not giving effect to bequests so creditors claims against estate can be satisfied. CREDITORS ALWAYS HAVE PRIORITY OVER ASSETS Absent will provision gifts abate as follows 1. Intestate and Residuary 2. General 3. Demonstrative 4. specific 5. gifts that qualify for estate tax marital deduction |
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Definitions |
Specific - Certain piece of property e.g. lamp Demonstrative- Money from specific source General - dollar amount, no particular source * gen gifts will be apportioned if not enough to satisfy them all |
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Class gifts |
Close at Ts death. and rules of anti lapse come up if specifically named etc. |
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Disclaimers |
Under NY EPTL a beneficiary who validly renounces is to have predeceased. To disclaim we have to do the following. 1. Disclaim in writing signed 2. notary 3. affidavit claiming no consideration received 4. file with surrogate court within 6 months death |
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RUSDA |
if there is no proof by clear and convincing evidence that one person survived the other by 120 hours (5 days) then property is distributed as though that person pre-deceased the other. Presume each person outlived the other when distributing their estate. IF RUSDDA happens to JTs with right of survivorship then presume tenants in common and divide. |
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Extrinsic Evidence to cure ambiguity |
where no ambiguity exists in provisions in will, extrinsic is inadmissible to vary terms. HOWEVER under EPTL, parol evidence is admissible to determine the intention of a testator who creates a will that is ambiguous on its face e.g. leaving gift to someone that doesn't exist! evidence from drafting attorney or 3rd parties. When will complete on face- court may interpret in order to arrive at result most likely , court may impose constructive trust. Plain meaning w/o ambiguities |
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Advancement |
Lifetime gift to be deemed an advancement must be ; 1) contemporaneous writing signed made at time of gift. |
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Conditional gifts |
Valid - if violates public policy e.g. promotes divorce void. requiring marriage or marriage in partake ulnar faith are ok |
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Will Contests- Testamentary Capacity
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Under NY EPTL, the proponent of a will has the burden of proving that the testator had testamentary capacity. It is a question of fact for the surrogate court to decide. TC requires T to 1. Know the nature of his act (creating will) 2. nature and extent property 3. natural objects of his bounty(leaving too) 4. understand how each component relates. * lower standard than contractual - Intoxication or insane delusion doesn't prevent if moment of coherence. |
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Lay Witness ability to testify as to Ts mental capacity |
lay witness is ALLOWED to testify as to the Ts actions and statements during the will execution, but he cannot give conclusions or opinions as to Ts legal mental competency. |
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Undue Influence |
Undue influence is a dominating force on the Ts mind that destroys the Ts free will and forces him to embody the intentions of someone else in his will. TO PROVE UNDUE INFLUENCE, THE WILL CONTESTANT HAS THE BURDEN OF PROVING 1. Existence of undue influence in fact 2. effect was to destroy the Ts free will AND 3. but for the undue influence the will would not have been executed as it was. PRESUMPTION UI IF PERSON IN CONFIDENTIAL RELATIONSHIP WITH T AND THAT PERSON IS INSTRUMENTAL IN PROCURING THE WILL |
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Putnam Scrutiny for Attorney Draftsperson |
Under NY EPTL, party challenging a will based on undue influence must normally show - see above A PRESUMPTION OF UNDUE INFLUENCE APPLIES WHEN THE ATTORNEY DRAFTSPERSON IS ALSO A BENEF IN THE WILL. Court must engage PUTNAM scrutiny even sua sponte. Presumption can be negated showing independent basis for the disposition such as long term family friend or relative. |
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Fraud |
A will may be contested on fraud grounds 1) indv knowingly makes misrep of fact 2) with intent to induce reliance AND 3) misery actually induces reliance to Ts detriment |
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No Contest Clause |
NY GIVES NO CONTEST CLAUSE FULL EFFECT Ny allows Ts to make dispositions without them being questioned once they die. Anyone who contests validity or provisions will forfeit rights EXCEPTIONS 1) fraud or will revoked by another & good basis for claim 2) contest on behalf of minor/incompetent 3) contestant alleging no jurisdiction of court 4) merely asking court to interpret construe terms |
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AG rep of charitable gifts |
attorney general is rep of charitable gifts |
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Contractual wills |
contracts to execute mutual wills are enforceable agreement MUST EXPRESSLY STATE parties intend their wills to be a binding contract between them. Recent case law has established general releases in separation agreements must be extremely precise in revoking irrevocable joint will contracts and concurrently the joint wills themselves. Law states must be a specific ref. to contract upon which the joint wills are based and must be specific express intent that parties desire contract and wills to no longer be enforceable. If party breaches valid agreement to execute mutual wills, court will probate new will and impose constructive trust on original intended beneficiaries. |
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Spousal Right of Election |
Under EPTL surviving spouse entitled to an elective share upon the death of other spouse. greater of $50,000 or 1/3 of probate assets and Tsubs. It comes out pro rate from other beefs Calculate exempt personal property, expenses not taxes, |
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Remedies against executor |
beneficiaries can demand accounting from executor. if fails to ditribute properly, he must reimburse estate and beneficiaries for any improper distributions |
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Liability of Administrator for running a business without court permission |
MAY NOT run business that she otherwise had no interest in before she was appointed as admin UNLESS has permission from court to do so. if doesn't have permission then liable for losses |
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Order of admin |
Spouse, kids, grandkids. |
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Power of attorney |
a POA is a grant by a principal to an age of the right to make legally biding decisions on their behalf including disposition of property. effective immediately unless provision states otherwise. POA revoked on death or incapacity by operation of law. IF POA durable will survive incapacity. in NY durable by default unless agreement differs |
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Attorney drafter as executor |
disclosure requirements 1. informed client anyone can be E 2. if he acts he will receive commission and legal fees. failure to comply means attorney will get half statutory executors commissions |
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RAP & NY statutory modifications |
for an interest to be valid under CL, it must vest within a life in being at the time of the grant plus 21 years. NY reduces any age contingencies to 21 years. |
