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47 Cards in this Set

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How will property pass by intestacy if decedent survived by children and issue of predeceased children?
1. Prior to 1992 passed "per stirpes." (issue of deceased child would take the share her parent would have inherited if living)
2. In 1992, changed to per capita.
When is a spouse disqualified from taking her intestate share?
1. Divorce
2. Invalid divorce procured by SURVIVING spouse
3. Separation Decree (not agreements)
4. Marriage is Void
5. Abandonment or Lack of Support
What are the methods by which paternity can be established such that a nonmarital child may inherit from the father?
1. If child legitimated by later marriage between father and mother
2. Order of Filiation in a Paternity Suit Entered During Father's Lifetime
3. Dad files witnessed, acknowledged affidavit of paternity with putative father registry
4. after death, paternity established in probate proceeding by: (i) clear and convincing evidence; AND (ii) open and notorious acknowledgement of child as his own
5. A Blood Genetic Marker Test: If 95%+ accurate, creates rebuttable presumption that defendant is father. If rebutted, will also require clear and convincing evidence.
Advancements (lifetime gifts to intestate distributee) and "satisfaction of legacies (lifetime gifts by testator to beneficiary) rule
1. At common law, such gifts were presumed advancements or satisfactions of legacies, and thus taken into account at distribution.
2. In NY, by statute, an advancement (satisfaction of legacy), will not be presumed unless proved by a (i) contemporaneous writing made at time of gift; (ii) signed by the donor or donee
Rules for disclaimer (renunciation if intestate distributee) of legacies
A person who disclaims is considered to have predeceased the testator. If however, this would result in the disclaimant's interests passing to collateral relatives as a result of the per capita rule, the disclaimant will be presumed to have died on the same day as the decedent, but immediately after.
What is required for a valid disclaimer?
1. in writing
2. signed and acknowledged
3. contains separate affidavit stating no consideration was received for decision to disclaim
4. must be irrevocable
5. should be filed with surrogate's court within 9 mths from date of decedent's death.
6 Point Test for Valid Execution of a Will OR Codicil
Must be 18 or older AND:
1. signed by testator
2. testator's signature at the end thereof
3. testator must sign Will or acknowledge earlier signature in presence of each witness
4. Publication - declare document is last Will and Testament to Witnesses
5. Two Witnesses
6. Execution must be completed within 30 days from first witness's signature
What is purpose of an attestation clause?
recites the facts of due execution and will serve as prima facie evidence thereof. Although witnesses must still testify, if the witness has a bad memory or turns hostile, a Will containing a completed attestation clause will be admitted despite this problem if the Court is otherwise satisfied from all the evidence that Will was properly executed.
What is a self-proving affidavit.
This is a sworn statement by Witnesses that they witnessed the elements of due execution. It is attached to the back of the Will. Because it is sworn testimony, the Will is admissible on the strength of the affidavits, unless an interested party objects, in whihc case formal rules of proof of due execution apply.
New York's Interested Witness Statute
that fact that a Will beneficiary served as an attesting witness will not affect the validity of the Will. The bequest to the Witness, however, will be VOID, UNLESS:
1. supernumerary rule applies, meaning there were 3 or more witnesses with at least 2 disinterested; OR
2. the interested witness would be an intestate distributee. If that is the case, the witness will get whichever is the least of the gift or intestate share.
The Foreign Wills Act states:
A Will is admissible to probate in NY if validly executed under any of the following:
1. the law of the state where executed
2. new york law
3. law of the state where testator was domiciled either when Will was executed or at time of death
Rule for Holographic and Nuncaptive (oral) Wills
1. A holographic Will is one that is entirely in Testator's handwriting and that is signed, but not witnessed. It will be VOID in NY as will an oral Will UNLESS:
1. Written by Testator in Armed Force in Declared or Undeclared War (expires after one year discharge)
2. Mariners at Sea (expires after 3 years)
Can a beneficiary of a Will sue a Lawyer for Malpractice in Execution?
NO. New York does not consider beneficiaries do be in privity with the lawyer. Only the client is in privity and thus only the client (or the estate) can bring action for improper drafting
What are the only two methods for full, valid revocation by the testator
1. a subsequent, duly executed, testamentary instrument (Will or Codicil)
2. A physical act (burning, tearing, crossing out signature)
What happens if a subsequent Will does not contain proper revocation language?
To extent possible read the two instruments together and the second Will is treated as a codicil in that only revoked first Will to extent of inconsistent provisions
What is the rule regarding revival of revoked Will
There is no revival of revoked Will simply by destroying the later Will. It can only be revived by:
1. Due Re-Execution
2. Testator validly executing a codicil that makes various changes to the first Will (doctrine of republication by codicil
What is Dependent Relative Revocation
This is a doctrine that might be applied to disregard a revocation on the premis that revocation was dependent upon a mistake of law as to validity of another disposition. The effect is to disregard the revocation by the second Will. It can only be applied where the disposition that results from the second revocation comes closer to what T tried, but failed to do.
Presumptions in the Case of Missing Wills
1. Where last seen in T's possession and not found after death, presumption is that T revoked by physical act.
2. where Will last seen in T's possession or control and found mutilated, presumption is that T was the person who did the mutilating.
3. Where Will last seen in the presence of a third party, no such presumptions
Proof of Lost Wills Statute
requires that due execution must still be proved. Lost Will Proponent must overcome presumption of revocation that arises from Will's nonproduction OR prove that revocation should be disregarded because of Dependent Relative Revocation
Two Conditions for NY Anti-Lapse Statute to Apply
1. Predeceased Beneficiary was T's Issue, Brother or Sister
2. The Predeceased Beneficiary Leaves Issue Who Survived T
If these requirements met, a gift will not fail despite being left to a predeceased beneficiary
Surviving Residuary Beneficiaries Rule
If T's residuary estate is devised to two or more persons and gift to one of them fails (and anti-lapse does not apply) the other residuary beneficiares take the entire residuary estate, in proportion to their interest in the residue.
Class Gifts Rule
The Class Gifts rule is a rule of construction that presumes that if a gift was made to a group of persons described as a class and some of those class members predecease the T, the surviving class members will take.
Rule of Convenience
Rule of Construction used to determine takers of a class gift. Class is closed at time of distribution. (Subject to the gestation principle).
Pretermitted Child Statute
Protects children unprovided for or mentioned by Will or any other settlement. Puts them on same footing as other children.
1. If no provision was made for any child, the afterborn will inherit nothing.
2. If Will made gifts to T's other children, pretermitted child shares in amount as if class gift on pro rata basis
3. If appears intention was to limit shares to kids, pretermitted child takes the intestate share.
Is incorporation by reference to extrinsic document recognized in NY?
NO
Non-Probate Assets
1. property passing by survivorship
2. property passing by contract
3. property held in trust, including a revocable trust
4. property in which decedent held a "power of appointment"
Order of Abatement of Legacies to satisfy creditor claims
1. intestate and residuary property
2. general legacies pro rata
3. demonstrative legacies pro rata
4. specific gifts
5. items qualifying for estate tax marital deduction
Is there exoneration of liens by the residuary state for a specific gift of encumbered property?
NO, unless Will explicitly directs such exoneration.
Ademption
A specific gift will fail if property cannot be found or is not owned by T at time of death with THREE STATUTORY EXCEPTIONS:
1. Casualty Insurance Proceeds to extent paid after death
2. An Executory Contract to extent paid after death
3. Sale by a Guardian/Conservator of Specifically Bequeathed Property: beneficiary entitled to receive money or property into which proceeds are traceable (if not traceable adeems)
What kind of legacy are gifts of publicly traded stock (if not specified?)
General Legacies
What kind of gifts are stocks in a closely held corporation?
Specific legacy and will adeem if do not exist at time of death.
What happens where bequest of stock is a stock split?
Where the issue is a stock split, treated as a specific bequest whether a possessive pronoun was used and wheter publicly traded or closely held stock involved.
What happens where specific gift of stock was acquired in a takeover such that it was replaced with different/public stock?
Courts deem this a change in form, not substance.
NY Negative Bequest Rule
Words of disinheritance are given full effect, even if in partial intestacy. Should treat the disinherited person as if predeceased the testator.
What will be included as testamentary substitutes
1. totten trusts
2. property passing by survivorship
3. lifetime transfers WITH strings attached
4. employee pension, profit-sharing, deferred comp plan
5. Gifts made within one year of death (in excess of $12000 exclusion)
6. US GOV Bonds and other POD arrangements
7. Property Over Which Decedent Had a Presently Exercisable Power of Appointment (BUT NOT Property over which he held a general testamentary power)
NOT Testamentary Substitutes (LOGPIT)
1. Life Insurance
2. One half of qualifed pension and profit-sharing benefits
3. Gifts within one year of death within $12000 annual exclusion
4. Pre marriage irrevocable transfers
5. irrevocable transfers made more than one year prior to death
6. Transfers irrevocable with retained life estate made before Sept 1, 1992 and during marriage
What amount of any survivorship estate is a testamentary substitute?
1. If estate with deceased spouse and third party - apply the consideration furnished test, which means surviving spouse has burden of proving decedent's contributions to the asset's acquisition or the deposits in the bank account.
2. If a survivorship with surviving spouse - 1/2 is a testamentary substitute.

3. Remember, if survivorship estate with 3d party created prior to marriage will have to use both consideration furnished test and rule that irrevocable dispositions before marriage are not testamentary substitutes.
Does an elective share trust satisfy the right of election?
For any person dying on or after Sept 1, 1994 NO! Prior to that, could give surviving spouse a life estate as long as $50,000 outright plus principle of trust equalled or exceeded one third of the elective share amount.
When must election right be filed?
within 6 months of letters testamentary
What is exempt property
Certain types of property up to a certain value may come off the top prior to probate and pass directly to surviving spouse.
What if decedent not domiciled in NY at time of death and did not provide for NY law to govern WIll?
No right of election.
When is spouse disqualifed from right of election?
1. divorce
2. invalid divorce by surviving spouse
3. separation decree
4. marriage is void
5. abandonment
6. lack of support
What is required for testamentary capacity.
Lower threshold for capacity than any other area of law. Must have:
1. understand nature of act (no insane delusion regarding subject)
2. known nature and approximate value of property
3. know the natural object of T's bounty
4. understand the disposition that he is making
Who has burden of showing undue influence?
Burden on Will contestant and must show:
1. existence AND exertion of influence
2. Effect of such influence must overpower mind and will and testator
3. product would not have happened but for such influence
What if question is undue influence byt attorney
court will engage in Putnam scrutiny even if no objection filed to determine if gift was voluntary
No Contest Clauses
Given full effect in NY EXCEPT IF:
1. forgery or revocation of Will claim and probable cause
2. filed on behalf of infant or incompetent
3. construction proceeding to construe Will's terms
4. Challenge to the Court's jurisdiction
What is a power of appointment?
Power created or reserved in a person that give that person the right to designate, within limits proscribed by grantor, the persons who shall take the property and the manner in which they take it.