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86 Cards in this Set

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Intestacy Order of


Distributees

If there is no will, the spouse takes the first $50,000 and one-half of the remainder. The other one-half will go to the next relative according to the below:


1. Spouse and Children/Issue of Predeceased Children


2. Parents


3. Siblings/issue of predeceased children.


4. Bifurcate Genealogy: each side takes 50% by intestacy (grandparents can party with aunts/uncles, first cousins, and first cousins once-removed).

Effect of Codicils

If you are adversely affected, you can object; one of the two times a non-distributee can object.

Effect of Subsequent Will

If you are in a prior will on file in the same surrogate's court as the subsequent will, you can object. Both wills must be filed!

Exempt Property

$25,000 car or cash equivalent; $25,000 cash; $20,000 in tractors, animals, and food for 60 days (farm stuff); $20,000 in computers and electronics (stuff around the house); $2,500 in creepy stuff in drawers. Despite what the will says, exemptions go to the surviving spouse or, if there is no surviving spouse, to children under 21. Exempt property is not reachable by creditors (except for funeral costs).

Lapse Bequests

For beneficiaries who die after the decedent, the inheritance passes to their estate. For beneficiaries who die before the decedent, the bequest lapses and passes through the residuary.

120-Hour Rule

You must live 120 hours after a decedent's death to receive your bequest. If you die within five days of the decedent's death, your bequest goes into the residuary. The will controls if it speaks to this.

Guardianship

There is a difference between guardianship of the person (custody of a minor) and guardianship of property (money for a minor). Guardianship is a custody issue and while surrogate's court has jurisdiction, it should go to family court. Minors can inherit property but can take it when they are 18. Earlier withdrawal may be permitted by court order. A testamentary trust may be set up to avoid early withdrawal issues.

Probate vs. Non-Probate Assets

Creditors can get non-probate assets, such as an IRA or a life insurance policy payable to a deceased person. The proceeds of such accounts remain in the estate of the decedent and do not pass to the beneficiary.

Totten Trusts

Totten trusts and payable-on-death accounts are non-probate assets. Accordingly, creditors may go after them.

Living Trusts and Pour-Over Wills

Look at the living trust to find out who takes in the pour-over will. Lifetime trusts and pour-over wills are non-probate assets and creditors may go after them. If you set up a living trust with everything you own, will will not have an estate because the beneficiary of the living trust will own all of your assets upon your death.

Will as Deed Concept

Title to real estate passes at the moment of death; the will acts as a deed. The beneficiary owns the property at the moment of death but the will must still be probated in surrogate's court.

Ademption

If the decedent does not own the property when he or she dies, the beneficiary cannot inherit it.

Abatement

If there is not enough money in the estate, the beneficiary's inheritance will be cut back.

Life Estates

The owner of the property pays the mortgage and the life tenant pays for everything else (taxes, repairs, etc.). A life tenant may sell his or her interest, measured by the life tenant's life and not the purchaser's. Life estates are defeasible. If you inherit real estate, you also inherit the mortgage (a mortgage is not considered a debt of the estate).

Pour Autre Vie

The length of a life estate may be measured by the life of a third party.

Attorney Fees

Attorney fees can be paid at any time. However, if you are an attorney-executor you cannot take fees until the estate is closed, absent a court order allowing you to take them early.

NY Surrogate's Court


Jurisdiction

Each surrogate's court has statewide jurisdiction. The court of proper venue is where you are domiciled when you die. You cannot choose a domicile if you "have no mind" (think of nursing home situations).

Estate

Money and assets that are in your name ALONE.

Residuary Clause

"…the rest, residue, and remainder to Sarah Barry…" Residuary bequeaths are paid after all other bequeaths.

Non-Distributee


Opportunities to Object to a Will

1. Codicil


2. Second Will on File in Same Surrogate's Court as First Will Was Filed

Living/Inter Vivos Trusts

To avoid probate, you can put all of your assets into a living trust. You receive the income while you're alive and then it goes to the beneficiaries when you die. Once a living/inter vivos trust is executed, it is funded.

Custodianship Account

Creates an irrevocable gift to a minor by a donor during the life of the minor. Can be established with or without a will. A custodian holds onto the property until the minor turns 21, unless the custodian permits the minor to take at 18.

Location of Will

The original must be located to probate it. If a will is in a safe deposit box, you may petition to open the box but probate assets may not be removed from the box until the executor is appointed. You can file your will in surrogate's court to ensure it will be located. If you want to retrieve your will, you may either come to court in person or request it in writing with an acknowledgment (not an oath).

Limits on Fiduciaries

You cannot be a fiduciary if you are a minor, a felon, a foreign alien, or cannot read or write in English. The court also has discretion to deny fiduciary status.

3-Arm Baby Rule

If a biological parent remarries and the step-parent adopts the biological child, the child can still inherit from both biological parents and the new adopted parent.

Death Certificate

Required to probate a will. Filed in the place where the decedent dies (town or city).

Waiver/Consent

Required to probate a will. Consenting to the admission of the will to probate and appointment of the executor. All distributees must sign or citations will be issued. Minors cannot sign waivers.

Petition

Required to probate a will. Signed by the executor to move the process forward. Petitions are verified with an oath (subjects you to perjury).

Jurat

An oath on affidavits that states "sworn to before me." Subjects you to perjury.

Witness Deposition

Required to probate a will. Executed when the will is drawn. If not executed during the testator's life and neither witness deposition can be executed, you need an affidavit of handwriting of the testator and one witness. The will can be probated without an affidavit of handwriting if there is only one witness deposition.

10-20-30 Rule for Citations

Required if waivers/consents are not signed. In-state distributees are personally served at least 10 days before the return date. Out-of-state distributees are served at least 20 days before the return date by certified mail, return receipt requested, personal delivery, or alternate service showing proof of service. Addressee signs a green card showing proof of service. Out-of-country distributees are served at least 30 days before the return date by registered mail, return receipt requested. Addressee signs a pink card showing proof of service. Sender files an affidavit before the return date showing timely service.

Certificate

Not signed by the judge; signed by the clerk. The executor takes it to the bank to prove he or she is the executor.

Decree

Orders a will be admitted to probate and declares you as the executor.

Letters Testamentary

Says the will has been probated and gives the executor the authority to act.

Guardian Ad Litem

Required to represent minors, incompetent individuals, or individuals who cannot be located distributees. Not required when the minor is taking an equal or greater share by will. Required when the minor takes an entire estate in trust because by intestacy, the minor would take at 18. Required if there is a possibility a minor could be adversely affected.

Notice of Probate

Sent to non-distributee beneficiaries before the will is admitted to probate. The Attorney General receives a notice of probate if there are residuary charities.

Preliminary Letters

Allow executor to collect assets and pay debts but not distribute (must wait until the probate court date). You may sell assets but must check with the distributee first. May be issued once a citation is issued. 7-month rule for creditors starts when preliminary letters are issued.

Publication

Citations must be published in a newspaper once a week for 4 weeks for distributees who cannot be located.

Family Tree Affidavit

Required if (1) there is only one distributee, (2) the closest distributee is a grandparent or beyond (aunt, uncle, cousin, first cousin once-removed), or (3) one is a distributee through a deceased party. In other words, if you have one distributee, you need someone other than that person saying that he or she is not lying and that the family tree is accurate.

Witnessing the Will

Witnesses must sign the will within 30 days of each other in the presence of the testator. The will can be witnessed at any time.

Share of Distributee-


Witness

If you are a distributee-witness...

Jurisdiction Over Deceased Persons

You need a waiver from the estate of a deceased person or, if no estate exists, from their distributees.

Service on a Minor

If the minor is 14 or older, you serve the citation on the minor and one parent. If the minor is under 14, you serve the citation on the parent and the minor receives a guardian ad litem.

Solving Jurisdictional


Defects

Without a proper citation, jurisdiction can be obtained if your attorney appears in court on your behalf, you appear in court, or you execute an admission of service of a notice of appearance is filed.

Apostille

Confirmation that a notary is a valid notary.

Wrongful Death vs.


Conscious Pain and


Suffering

Wrongful death awards belong to those who suffered the pecuniary loss, while conscious pain and suffering awards belong to the decedent and go to the estate.

Where Only Estate Asset Is Conscious Pain and


Suffering

A guardian ad litem is needed because if the will is probated, conscious pain and suffering assets belong to the residuary beneficiaries.

Wrongful Death


Commissions

Optional because these awards are not part of the estate. Estate debts (other than the funeral bill) are not payable from wrongful death proceeds; only the conscious pain and suffering awards are subject to creditors.

Medical Allowance

No medical allowance can be made against awards for conscious pain and suffering if the decedent was survived by a spouse or child who is permanently disabled, blind, or under 21.

Voluntary Administrations for Small Estates

May occur where there is or is not a will. Administrators are not permitted to pass title to real estate or enforce a claim for wrongful death, conscious pain and suffering, or personal injury until it is converted to a regular estate. However, such claims may be instituted if real estate is part of the estate. Based on probate assets only ($30,000). LET IT GO. No decree or letters testamentary are issued; only certificates. Will is not probated and witness depositions are not needed.

Administration Exemptions

$25,000 car or cash equivalent; $25,000 cash; $20,000 in tractors, animals, and food for 60 days (farm stuff); $20,000 in computers and electronics (stuff around the house); $2,500 in creepy stuff in drawers. Despite what the will says, exemptions go to the surviving spouse or, if there is no surviving spouse, to children under 21. Exempt property is not reachable by creditors (except for funeral costs).

7-Month Claim Period

7-month period to file claims against an estate starts to run from the date preliminary letters or letters testamentary are issued. Partial distribution may be made before the 7 months expire. The fiduciary has personal liability for distributions made before the 7 months expire and for distributions made after 7 months but has reason to know of the claim. Security interests have priority, followed by: administrative expenses (ex. commissions and attorney fees), funeral costs, federal and state taxes, and other debts (ex. credit cards).

Interests Not Subject to Creditors' Claims

Include: life insurance policy proceeds, tenancies by the entirety, IRAs, family exemptions, and joint accounts.

Administration Proceeding

Occurs where there is no will. You are appointed as an administrator The following are disqualified from taking an intestate share: divorced spouses, individuals convicted of murder or manslaughter, those in a bigamous or incestuous marriage, spouses that abandon/fail to support their spouse, parents who abandon/fail to support their child, and adopted-out children. Administrators must be distributees by the intestacy statute. Decrees, letters, and certificates are issued the same here as in probate (decree appoints administrator, letters define authority, certificates are used at the bank).

Jurisdiction in


Administration


Proceedings

Jurisdiction must be obtained over those with a same or greater right with a citation or waiver/consent. Notice of application for letters of administration are sent to distributees with lesser rights; jurisdiction is not required. Obtaining jurisdiction over or a citation or waiver/consent for distributees who cannot be located and minors can wit until the estate is being closed.

Bond Rule

An insurance concept that protects you against theft from the administration because there are other beneficiaries that need to be protected. The requirement is imposed over $30,000 for distributees who do not sign a citation or waiver/consent.

Administration De Bonis Non

The second-named administrator if the named administrator renounces or dies after being appointed.

Big Daddy Rule

Big Daddy is the will; codicil is the Little Baby. If you kill Big Daddy, Little Baby dies. If Little Baby dies, Big Daddy is fine.

After-Born Rule

If the pre-born takes nothing, the after-born takes nothing. If the pre-born takes a share, the after-born is greedy and takes the pre-born's share. If you have no children when the will is drawn but you have an after-born, they take by intestacy. If the pre-born is given a limited inheritance, the after-born takes an intestate share.

Once Dead Always Dead Rule

Execution of a prior will automatically revokes all prior wills. Revocation of a subsequent will does not revive the prior will.

Probate of a Foreign Will

No need to probate a will in the state in which the decedent lived if all property was jointly held.

Ancillary Probate

Requires probate in two different places if there are estate assets in two different places.

1404 Hearing

Pre-trial hearing where witnesses and draftsman may be deposed (discovery).

Dead Man's Statute

You cannot testify to what the deceased person said or did if you are interested in the transaction. Does not apply to 1404 hearings, if you are no longer interested, if you renounce your inheritance, if you are the spouse of the deceased, or if you are the executor.

Objections to a Will

One article cannot be expunged (unless there is undue influence or fraud); if you expunge one article, the entire will is thrown out. The burden of proof is on the proposed executor.

Objections to a Will Based on Undue Influence

Can be based on circumstantial or direct evidence. If there is a confidential relationship and that person was involved in drafting the will, there is an inference of undue influence. Burden of proof is on the objecting party. An article may be expunged.

Objections to a Will Based on Fraud

Burden of proof is on the objecting party. An article may be expunged.

1411 Citation

Sent to all beneficiaries, both distributees and non-distributees, after objections are filed giving all parties the opportunity to join the executor in the defense of the will. If parties do not appear on the return date and join in the defense, they are subject to settlements between the proposed executor and the objecting party.

Executor's Deed

Cannot be used for a specific devisee but can be used for a residuary beneficiary. The executor has the power of sale through the residuary. An administrator's deed can be used to sell real property in administration proceedings because the property is not specifically devised.

Interrorem Clause

Does not apply to construction proceedings, 1404 hearings, will contests based on forgery or public policy considerations, or minors. It is only applicable if a person files an objection for testamentary capacity or undue influence and he or she lost (the TU rule!).

Joint Wills

Joint wills are not contracts unless they explicitly say so. Otherwise, the surviving party can change the will.

Effect of Divorce and


Remarriage

Joint tenants become tenants in common. You are out!

Probate of a Copy of a Will

Copy can be a photocopy or a conformed copy. The presumption is that the will is revoked if it was last seen in the possession of the decedent. The only time a copy may be probated is if you overcome the presumption that it was revoked.

Affidavit by Attorney-


Fiduciary

Required when the will is drawn acknowledging that the attorney is also the executor and entitled to attorney fees. If this affidavit is not filed, the attorney forfeits one-half of his or her commissions.

Anti-Lapse Statute

Applies to siblings and issue (children and grandchildren). Also applies to adopted-out children who are later named in a will. If your siblings or issue don't survive, their share goes to their issue for them to collect.

Revocation of a Will

Revocation occurs by drafting another will, a codicil, or a subsequent writing so revoking the will. 4-in-the-room rule!

Commissions

Commissions cannot be paid early absent a court order. There is no commission on real estate unless it is sold. Only equity portions are taken from what is sold. There is no commission on specific bequeaths. Equity interest in cars/homes sold are commissionable.

Closing an Estate

Must file inventory listing probate and non-probate assets. Probate assets are in the decedent's name alone and pass under the will; non-probate assets do not pass under the will but pass through joint accounts or named beneficiaries.

Closing an Estate - Minors

If a minor takes a residuary or intestate share, an accounting must be done to determine what they are taking. If a minor takes a fixed amount under $10,000, the fiduciary can pay the money directly to a parent and obtain a receipt and waiver. If a minor takes a fixed amount over $10,000, a guardianship account is needed and the minor takes at 18.

Closing an Estate -


Beneficiaries

Beneficiaries must execute receipts and waivers to close the estate and acknowledge receipt of their inheritance.

Closing an Estate - Trustees and Executors

If the executor and the trustee are the same person, receipts and waivers are needed from the trust beneficiaries. If the executor and trustee are different people, the trustee can release the executor. If the executor and trustee are different people and minors are the trust beneficiaries and it is a residuary share, an accounting is needed.

Accounting

The fiduciary must make a prima facie case on the accounting proceeding to show it is accurate and complete, but then the burden shift to the objecting party. May be instituted by the fiduciary or objecting party. Required when a minor is inheriting a residuary/intestate share or if a residuary beneficiary is unwilling to sign a receipt and waiver.

Per Stirpes vs. Per Capita

Significance of 9/1/92!

Administrator's Deed

Can be used to transfer real estate because there is no specific devisee. Administrator signs the deed to transfer the property.

Corporations

A corporation does not pass through an estate; the shares of the corporation pass through the estate.

Estate Tax Limits

Exemptions for spouses. Exemptions and deductions for charities.