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106 Cards in this Set
- Front
- Back
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What does intestate mean?
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When a person dies without an enforceable will.
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When do the rules of descent and distribution apply?
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1) Decedent died intestate
2) Decedent's will is denied probate 3) Decedent left a will, but does not make a complete disposition of estate |
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What is the term for those individuals who inherit property under intestate succession?
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Distributees
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What is the term for those who inherit under a will?
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Beneficiaries
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What does "issue" mean?
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All persons who have descended from a common ancestor. Includes those in direct line of inheritance with the decedent, i.e., children, grandchildren, etc.
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What are those beneficiaries who inherit personal property under a will called?
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Legatees
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What are those beneficiaries who inherit real property under a will called?
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Devisees.
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What is the intestate distribution when only survived by a spouse?
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The surviving spouse takes the entire estate.
**Parents, siblings, etc. get nothing. |
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What is the intestate distribution when survived by spouse and issue?
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1) The surviving spouse takes the first $50k and half of the balance;
2) The issue inherit the rest. |
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What if some of the issue are from this marriage and some are from another marriage?
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Doesn't matter - all issue treated the same so long as related to decendent by blood.
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When will a surviving spouse be disqualified as a distributee?
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1) Final decree of divorce/annulment prior to death
2) Final decree of separation against surving spouse 3) Surving spouse abandoned the deceased spouse up to point of death 4) Surving spouse refused to support deceased. |
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How is a share of the estate that passes to issue divided?
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Issue share entire estate (per capita at each generation).
**eg, all issue at the same generation level who inheret will take equal shares. |
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What is the intestate distribution when not survived by issue or spouse?
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Surviving parents take entire estate, sharing equally.
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What is the intestate distribution when survived by issue, spouse, or parents?
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The estate pass per stipes to his siblings, and issue of his deceased sibling per capita.
**No distinction between whole and half bloods. |
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What a per stirpes passing of the estate?
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???
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What is the intestate distribution when not survived by spouse, issue, parents or siblings?
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One half passes to each set of grandparents or their issue.
**The issue take per capita at each generation. |
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How are adopted children treated?
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An adopted child is treated the same as a birth child.
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What are an adopted child's inheritance rights with respect to a birth parent?
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All such rights are cut off unless:
1) A birth parent has married the adopting parent 2) The child is adopted by a relative, child inherets under natural relationship, unless decedent was the adopting parent. |
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What are the inheritance rights of a stepchild or foster child?
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Generally none, unless the doctrine of adoption by estoppel applies (ie, step or foster parent took custody of the child under an agreement to adopt but never carried through)
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What are the inheritance rights of a non-marital child?
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1) Full inheritance rights from mother and mother's family
2) Can only inherit from father in certain situations |
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When can a non-marital child inherit from father?
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1) Legitimated by marriage;
2) Order of filiation, adjudicating man as father during his lifetime; 3) Father files acknowledged affidavit w/ father registry 4) Paternity established in probate proceeding by clear and convincing evidence, and father openly and notoriously recognized the child as own, or 5) DNA test proves by clean and convincing evidence **A child support agreement, alone, does not make a child an heir. |
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Will child support agreement does make a child an heir?
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No, not alone.
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Can posthumous children takes as distributees?
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Yes. A child conceived during his lifetime but born alive after his death may take as if they were born in his lifetime.
**A child born more than 280 days after his death is presumed to have been fathered by someone else. |
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When will a person be presumed dead?
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When the have been absent without explanation for a continuous period of 3 years, and can't be found after diligent search.
** If a person was exposed to specific peril, it may be determined that she died less than 3 years after her disappearance. |
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What is the rule for simultaneous deaths?
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If deaths are in fact simultaneous (or indeterminable), property of each is distributed as though he or she survived the other.
**USDA does not apply if the disposing act provides otherwise. |
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How are killers treated for purposes of inheritancy?
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One who wrongfully kills a person cannot take by will or intestancy. The victim's estate passes as if the kill predeceased V.
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What constitutes proof of wrongful killing?
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1) Conviction of murder or 1st/2nd degree manslaughter,
2) Where there is no conviction, proof of wrongful killing must be by the preponderance **If killer is found not guilty by insanity, he is not precluded from taking. |
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When will a lifetime gift to child be considered an advancement of part of his intestate share?
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Only where proved by a contemporaneous writing signed by the donor or donee.
**If advancement found, the amount is added to the net value of the estate for purpose of computing instate share, and advancee's share is reduced by amount advanced. |
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What is the procedure if advancement is found?
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The amount of advancement is added to the net value of the estate for purpose of computing instate share, and advancee's share is reduced by amount advanced.
**If the advancement is greater than the advancee's share, he does not have to return the excess. |
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Does the NY advancement statute also apply to lifetime gifts to beneficiaries under an existing will?
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Yes. Same requirements.
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What is renunciation?
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Disclaimer of an interest by a distributee or will beneficiary of an interest that would otherwise pass to them from the decedent
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What are the requirements for a valid renunciation (disclaimer)?
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Disclaimer must be:
1) In writing 2) Signed and acknowledged (notarized) 3) Accompanied by separate sworn affidavied that he received no consideration for the disclaimer 4) Irrevocable 5) Filed with the surrogate court w/in 9 months after D's death |
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What is the legal effect of a person's renunciation?
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Person disclaiming their interest in the estate is treated as if predeceased decedent, unless that will affect shares of other distributees. In that case he will be deemed to have died immediately after decedent.
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What is the effect of renunciation on tax liability and creditor's claims?
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A timely disclaimer beats both.
** timely if made within 9 months of decedents death or 9 months of beneficiaries 21 b-day. |
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Does NY recognize the tort of interference with inheritance rights?
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No
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What is a will?
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An instrument that takes effect on death (revocable until) and that makes a disposition of property.
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What are the six requirements for a valid will?
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1) Signed by testor (or by proxy in T's direction and presence);
2) Signature must be at the end of the will (words after signature are ignored); 3) In the presence of 2 witnesses (or acknowledged in their presence); 4) T must publish the will by declaring to to the witness that "this is my will"; 5) The 2 attesting witness must sign the will; and 6) The witness must sign their names within 30 days of each other. |
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What are the requirements when a will is signed by another persons on behalf of T?
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Such person:
1) Must also sign her name; 2) Can't count as one of the 2 witness; 3) Must affix his address (failure will not invalidate will) |
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When will a will executed in another state be valid and admissible to probate in NY?
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If executed in accordance with:
1) NY law 2) Law of the jurisdiction where executed, regardless of testor's domicile at the time of execution, OR 3) Law of the jurisdiction where testor was domiciled at time of execution or death |
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When attestation clause (clause signed by the witness) give rise to the presumption of due execution?
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When it recites the facts of due execution, it establishes a prima facie case for probate where death, disability, or inability to find W prevents him from testifying.
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What is the effect when one the Witness to the will is interested?
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Interested W does not affect the validity of the will, but the bequest to W is void unless:
1) There were 2 disinterest Ws, or 2) W would be a distributee under the intestate, in which case W will take the lesser of amount given by will or intestate share. |
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Who has the burden of due execution?
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The proponent. Valid execution is a question of fact to be determined by the court or jury.
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What is the general requirement for proving a will?
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If the will is not self proving, at least 2 witness must testify as to the facts of execution, and must show that requirements of due exection were complied with.
** If one W is dead, can't be located, or is incompetent, the tesitmony of the other suffices. |
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How may a will be proved if both witnesses are unavailable?
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It may be admitted to probate upon proof of handwriting of the testator and one of the witness plus other facts sufficient to prove the will.
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How may a will be proved if both witnesses are unavailable?
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Only when the court is otherwise satisfied from all other evidence that the will was properly executed.
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What is a self proved will?
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A will with an affidavit from the witnesses anytime after will is executed. **will is admissible on strength of affidavits alone, unless interest party objects (then the rule of proof apply).
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What are the methods for revoking a will?
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1) By opperation of law
2) By written instrument By physical act 3) By physical act |
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When is a will revoked or modified by opperation of law?
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1) Divorce or annulment revokes testamentary disposition in favor of spouse
2) Subsequently born children are entitled to share in the estate. |
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How does a revocation of gift to former spouse take effect?
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As though the former spouse had predeceased the testor.
**Does not apply to provision naming former spouse as gaurdian their kids or to nonprobate transfers. |
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How is the will modified for subsequent children?
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1) Child takes same as other siblings if not otherwise provide for (ie, life insurance)
2) Share comes out of gifts to other siblings 3) If T had no other children when will executed, child takes intestate share unless otherwise provided for. ** child takes nothing if other children take nothing |
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When is a will revoked by written instrument?
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A later will, codicil, or other writing may revoke the will, as long as the instrument is executed with the same formalities required fo the will.
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When is a will invoked by implication from a written instrument?
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A second will can invoke by implication to the extent its provisions are inconsistent wit the first will.
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When/how can a will be will be revoked by physical act?
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If the testor has intent, a will may be revoked by any act of destruction to the original document by:
1) the testor 2) another person in the presence of and by direction of the testor. **Accidental destruction does not revoke the will, even if testor later decides he wants to revoke |
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Can there be a partial revocation?
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Not in NY.
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What are the presumptions as to revocation?
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Where will was last in T's possession or control but missing or found mutilated after death, it is presumed that T revoked by physical act.
**presumption is rebuttable |
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How does revocation of a will effect codicils thereto?
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Revocation of will revokes all codicils, but revocation of a codicil does not revoke the original will.
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How may a revoked will be revived?
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Only by:
1) Re-executing with testmentary formalities, 2) Republication by codicil (ie, validly executing a codicil that incorporates the original will), or 3) Re-publication of the prior will to 2 witnesses. |
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Can a codicil revive a will that was defectively executed or was revoked by physical act?
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Not unless the codicil contains the provisions of the earlier instrument.
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What is the effect of revoking a will by codicil and then destroying the codicil?
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The original gift is NOT revived.
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What is the dependent relative recovation doctrine?
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Permits a court to disregard a revocation if it determines that revocation was premised on a mistake of law.
**Should not be applied to defeat testor's intent |
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What is the "proof of lost wills" statute?
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A lost or destroyed will may only be admitted to probate if it is established that:
1) Will was validly executed 2) Will was not revoked 3) All provisions must be clearly and distinctly proved by 2 credible witnesses or by a copy/draft prove true and complete |
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When will the "lost will" be suppressed?
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If the will is lost or destroyed by one who would benefit under a prior will or intestacy, and the lost will can't be proven, the remedy is a constructive trust in favor of the testor's intended beneficiaries.
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What is the effect of changes to the face of the will after execution?
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Words added after execution are disregarded as unattested.
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How may a will be validly modified?
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Only by validly executed codicil or subsequent will.
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Does NY recognize the dotrine of incorporation by reference?
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Generally no, The document must be present and part of the will when signed. Exception for:
1) References to gifts made by another person's will 2) Gifts by will to inter vivos trust executed prior/concurrently to the will 3) Attached list disposing of tangible property. |
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Can nonprobate assets be disposed of by will?
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No, only property owned by decedent at death can be disposed of by will.
**eg, life insurance proceeds or property held in trust. |
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What is the general rule regarding predeceased befenficiaries?
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Generally, a gift to a predeceased beneficiary lapses and passes under residuary estate.
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What is the NY anti-lapse statute?
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Anti-lapse statute provides, if the predeceased was T's issue or sibling the gift will pass to predeceased's issue.
**except where gift was condition on beneficiary surving T |
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What is the doctrine of ademption?
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If property subject to specific gift is not owned by T at death, specific gift fails.
**giving 100 shares of stock X but not owing stock X at death |
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What is a portion of a specific gift is in the estate but a portion is not?
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The portion of the specfically bequeathed property that is in the estate at death passes to the beneficiary.
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What are the statutory exceptions to the ademption doctrine?
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1) Casualty insurance proceeds paid after T’s death but not if paid before death (eg, the house bequeathed was burned down, but T is yet it get the insurance money)
2) Executory contract (B gets sale proceeds paid after T’s death), 3) Sale by guardian or conservator of specially bequeathed property to care for T while still alive (B gets whatever is left of proceeds, to extent proceeds are traceable) |
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Does the ademption doctrine apply to general or demonstrative gifts?
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No gifts in a general amount or gifts of general amount to be paid from specific property are not adeemed.
**ie, other property in the testor's estate may have to be sold to satisfy the dispositions |
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Are gifts of stock general or specific?
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1) Shares in a closely held corp are specific 2) Shares in a public corp are general absent language indicating contrary intent
**matters for ademption purposes. |
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What happens if a specific gift is encumbered by a lien?
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The liens are not paid from residuary estate, unless the will expressly directs otherwise.
**clause for general payment of all debts does not suffices. |
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Does a specific bequest of securities include stock splits or dividends?
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Additional shares by a stock split after the will is executed and before T's death are included in the gift. Cash and shares produced by dividends are not, nor are splits paid after T's death.
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Who is included in a glass gift to children?
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1) Children by all marriages
2) Poshumous children 3) Non-marital children are presumptively included 4) Adopted-in (not out) children are presumptively included. **step children or grandchildren are not included. |
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Who is included in a glass gift to siblings?
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Includes half brothers and half sisters.
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Who is included in a glass gift to cousins?
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It presumptively includes first cousins only.
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How are class gifts to issue or descendants divided ?
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1) For wills/trusts executed before sept 1992, issue or descendants in equal degree of kinship to their common ancestor take per capita. If unequal degree, they take per stirpes unless contray intention.
2) For wills/trust executed on or after that date, issue take per capita at each generation (absent contrary provision). |
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Who is included in a glass gift to relatives or family?
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The terms "relatives" and "family" are construed to mean those who would take the estate according to intestacy statutes.
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What is the class gift rule?
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Only members who survive the testator take the gift, but the lapse statutes may change the result
**eg, if a gift were to issue, brothers, and sisters of the testator and a memeber of the class predeceased the testator leaving issue who survived the testator, the issue would take the deceased beneficiary's share under the anti-lapse statute. |
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What is the "rule of convenience" for class membership?
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A class closes whenever class is first entitled to distribution.
**exception for a 280 day gestation period. |
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Will a conditional will be probated if T doesn't revoke?
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Courts are split and either:
1) Deny probate b/c condition did not occur (i.e., treat as a “conditional” will), OR 2) Admit to probate b/c reference to event merely reflected motive for making will, but was not conditioned upon event happening (plus, T could have revoked upon return but didn’t) **eg, If I die while climbing everest, I leave everything to X. |
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What is the elective share statute?
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A surviving spouse is entitled to the greater of 50k or 1/3 of the augmented estate.
**If the estate is less than 50k, the elective share is the entire estate. |
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Does the elective share apply to cases of intestacy?
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Yes, the right of election exists even if the decedent left no will.
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When is the elective share unavailable to a surviving spouse?
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Not available to the spouse of a decedent who was not domiciled in NY at the time of death
**Unless decedent's will elects to have disposition of his NY property governed by NY law. |
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What is the "augmented estate"?
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1) Property owned at death + 2) testamentary substitutes - 3) Payment of debts = 4) Augmented estate
**calculated before taxes |
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What are testamentary substitutes?
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1) Irrevocable gifts in excess of 11k annual exclusion made w/in 1 year of death,
2) Gifts caua mortis, 3) Lifetime transfers with retained powers 4) Lifetime transfers with a retained life estate made during the marriage and after 9/1992 5) Joint tenancies and tenancies by the entirity 6) POD accounts, trotten trust and gov't bonds 7) Property over which decedent held a presently exercisable power of appt 8) Pension plan death benefits |
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To what extent can joint bank accounts and joint tenancies be testimentary substitutes?
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To the extent of decedent's contribution.
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What are generally not testamentary substitutes?
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1) Life insurance (whether payable to surviving spouse or third party)
2) One-half of qualified pension and profit-sharing plans 3) Pre-marital irrevocable transfers 4) Irrevocable transfers made more than one year before death (i.e., decedent did not retain power to revoke, invade, consume or dispose of principal) |
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When can the elective share be waived?
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Before or after marriage if:
1) In writing, 2) Signed, and 3) Acknowledged (notarized) |
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What are the procedural rules governing election?
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1) Must be made w/in 6 months of letters subject to exceptions, but no later 2 years of death
2) Must be filed with the surrogate's court |
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Can election be revoked?
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Yes, provided no adverse rights have intervened and no prejudice is shown to creditors.
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How is the net share funded?
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Gifts to all beneficiaries under the will, gifts to beneficiaries of testamentary substitutes, and shares of intestate distributees are reduced on a pro rata basis to fund the share.
**Unless the decedent's will, anticipating election, provides otherwise. |
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When are spouses disqualified from taking elective share?
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1) Divorce or annulment (final decree)
2) Invalid divorce (only if surviving spouse obtained divorce/annulment not recognized by NY) 3) Separation decree (final decree rendered against surviving spouse) 4) Marriage void (incest, bigamy |
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What is the exempt personal property?
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Exempt items are set aside for surviving spouse and are net deemed part of the estate.
**Thus not subject to adminstration |
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What is the effect of exempt personal property?
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The exemption is in addition to the property passing to spouse by will, intestacy, or elective share. (ie, doesn't count agaisnt the 50k for elective share)
**always mention when dealing with a surviving spouse. |
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What property is exempt?
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1) $15,000 cash allowance (NOT subject to creditors’ claims, except for funeral expenses)
2) Car (up to $15,000) 3) Furniture, appliances, computers, etc. (up to $10,000) 4) Animals, farm machinery, tractor, lawn tractor (up to $15,000) 5) Books, pictures, videotapes, software, etc. (up to $1,000) |
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In addition to defective execution, what grounds for contesting a will exist?
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1) Lack of testamentary capacity
2) Undue influence 3) Fraud 4) Mistake |
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What is required for testamentary capacity?
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T must be at least 18 years old, and:
1) Understand the nature of the act (i.e., must know he was writing a will), 2) Know the nature and approximate value of his property, 3) Know the natural objects of his bounty, and 4) Understand the disposition he was making **Capacity to make will is lower than capacity to contract—lucid interval suffices |
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What constitutes undue influence?
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BOP is on will contestant to prove:
1) Existence of exertion of an influence, 2) Effect of such influence was to overpower the mind and will of T, and 3) Will (or gift) would not have been made “but for” such influence ** opportunity to influence, susceptibility to influence, or unnatural disposition are not enough alone. |
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What is the effect of a bequest to the person who was involved in drafting the will?
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There is an inference that the gift was a product of undue influence. Once this is shown the gift was freely made.
**Rebutal must be made by means other than merely her own testimony. |
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When is a will be invalid for fraud?
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1) False representations that the speaker knew to be false,
2) made with intent to deceive the testator, 3) the testator's ignorance of the falsity, and 4) reliance upon such information that results in a different will than otherwise would have been made. |
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When is mistake sufficient to make a will invalid?
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Testator was mistaken as to the nature of the instrument (eg, thought it was a power of attorney).
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Who has standing to contest a will?
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1) Any person who has an economic interest that would be adversely affected by the will's admission to probate
2) The Atty General can represent benfeciaries that are religous orgs, charities, and educational institutions. |
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Are no contest clauses (ie, contestant forfeits legacy) enforceable in NY?
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Yes, unless:
1) Claim is that the will was forged or revoked by subsequent will (if probable cause exists) 2) Contestant files on behalf of person under disability 3) Suit to construe terms of will 4) Objection to jurisdiction of cour |
