Wills

Front 1

administration proceeding

Back 1

proceeding to appoint a personal representative (administrator) to administer the estate of dead due w/o will

Front 2

wills statutory book

Back 2

EPTL

Front 3

intestacy order of priority

Back 3

surviving spouse; children; grandchildren; parents; issue of parents (siblings)

Front 4

intestate distribution to spouse and children

Back 4

spouse: 50k + 1/2 of residuary; issue take the rest

Front 5

intestate distribution to issue of predeceased children

Back 5

passes "per capita at each generation" - so if dead A has 2 children, and dead B has 1, then A's children each get 1/3

Front 6

effect of disqualification of spouse

Back 6

if DISMAL, then as if surviving spouse has predeceased decedent

Front 7

intestacy & bastards

Back 7

"non-marital children" adopt from natural father only if paternity is established or legitimated by marriage or AFTER death, by C&C evidence and open & notoriously acknowledge the child as his own

Front 8

advancements

Back 8

not advancement unless proved by a contemporaneous writing, made at the time of the gift and SIGNED by the donor; if so, back out the advancement

Front 9

satisfaction of legacies

Back 9

this is the same as an advancement but for gifts in a will

Front 10

effect of disclaimer

Back 10

person disclaiming is considered to have predeceased, so his kids still take; but disclaimer cannot reduce another beneficiary's share, so it might look per stirpes

Front 11

how to validly disclaim

Back 11

in writing, signed & acknowledged; accompanied with affidavit that states no payment for disclaiming; irrevocable; and must be filed with Surrogate's Court w/in 9 months

Front 12

reqs of valid will

Back 12

18y.o.; signed at the END thereof; signed or acknowledge his earlier signature in the presence of at least 2 witnesses, w/in 30 days of each other; who know it's a will; T must "publish" the will - declare it to be his last will & testament;

Front 13

BoP for will

Back 13

BoP is on the will proponent, usually the executor; if not self-proved, both W's must testify to show due execution

Front 14

attestation clause

Back 14

recites all of the elements of due execution; prima facie evidence of the facts; but you still have to call the Ws to testify or prove their signature

Front 15

codicil

Back 15

later amendment or supplement to a will executed w/the same formalities

Front 16

bequest to witness

Back 16

bequest is VOID unless there were at least 2 other disinterested witnesses; OR the interested witness would be an intestate distributee, then you have "whichever is least rule" - he takes the lesser

Front 17

foreign wills act

Back 17

will is admissible to probate in NY if validly executed in state where executed; or under NY law; or law of state where T was domiciled, when will executed or at death

Front 18

holographic and noncupative wills

Back 18

holographic - entirely in T's handwriting and not witnessed; noncupative - oral; both are VOID; BUT SEE Foreign wills act - so it might be copacetic

Front 19

lawyer malpractice

Back 19

intended beneficiaries do NOT have a CoA against the lawyer for negligence b/c no privity of K. Duty only to the client. SWEET.

Front 20

valid revocation of wills

Back 20

by subsequent will, with all of the appropriate formalities and language of revocation; OR by physical act (VOID across page or bruning or crossing signature out w/X); partial revocation by physical act is not recognized (you can't scratch off some lines)

Front 21

revocation by implication

Back 21

if new will doesn't have revocation language, read the 2 instruments together, treating the 2nd as a codicil, but if 2nd is wholly inconsistent, then revoke the 1st

Front 22

revocation by act of another person

Back 22

need 4: T's request; T's presence; 2 more people to W; and a destroyer

Front 23

presumptions re: revocation

Back 23

if will was last seen in T's possesion and not found after death OR last seen w/T but found mutilated, presumption that he revoked by physical act

Front 24

how to make changes

Back 24

write a new will, revoking the 1st; or make a codicil, changing parts; both need all the formalities; partial revocation by physical act is not recognized (you can't scratch off some lines)

Front 25

revival of revoked wills

Back 25

Not by just destroying the new one; instead, it must be re-executed, resigned, rewitnessed; OR "republication by codicil" - execute a codicil on the 1st one

Front 26

lost wills

Back 26

must prove (a) due execution; (b) that the will was not revoked; and (c) each provision

Front 27

NY anti-lapse

Back 27

gift does not lapse b/c beneficiary is dead, IF predeceased was T's issue or sibling; AND the predeceased beneficiary leaves issue

Front 28

excluded from anti-lapse

Back 28

T's sibling's kids (nephews/nieces) (they don't get or they don't qualify???)

Front 29

lapsed testamentary gifts

Back 29

if gift fails or lapses, then the other beneficiaries take the estate (it doesn't go to the issue of his BFF)

Front 30

effect of divorce on will

Back 30

revokes all gifts to (former) spouse, but not her children; a separation decree does NOT affect the will, even tho it affects intestacy; also it does NOT affect his life ins.

Front 31

mistake children (children born after will is executed)

Back 31

if new kid is covered by T's life ins, that's that; but if no provision, then five situations

Front 32

incorpooration by reference

Back 32

not recognized in NY; everything must be formally executed

Front 33

acts of independent significance

Back 33

you can leave "the car I own" or "all the stuff in my apt" but not title docs (deeds, stocks, bank passbooks)

Front 34

non-probate assets

Back 34

property w/right of survivorship; 2) prop passing by K (life ins); 3) prop held in trust, including a revocable trust; 4) prop over which decedent had PoAppointment

Front 35

life insurance probating

Back 35

passes by K, not by probate; so if it says "I give the proceeds of my life ins to Claudia" but ins beneficiary is Adams, it still goes to Adams

Front 36

types of gifts in will

Back 36

specific gift ("I devise blueacre"); demonstrative legacy -specific source ("I give $5 from sale of IBM stock"); 3) general legacy (I give $5 to Claudia); 4) residuary; 5) partial intestacy

Front 37

abatement order

Back 37

1) partial intestacy; 2) residuary; 3) general legacy; 4) demonstrative legacy; 5) specific gift

Front 38

gift of encumbered property

Back 38

C/L & MBE: beneficiary is entitled to have lien exonerated; NY: liens on specifically devised property are not exonerated UNLESS the will VERY specifically directs otherwise

Front 39

ademption

Back 39

failure of gift: if specific gift doesn't exist, beneficiary loses; if demonstrative giftdoesn't exist, it turns into a general legacy

Front 40

ademption of lost or destroyed property

Back 40

if insurance proceeds are paid AFTER death, beneficiary takes that; but if ins is paid BEFORE death, beneficiary loses. Big time.

Front 41

executory contracts on sale of property

Back 41

if T agrees to sell his house before death but closing is after death, then the beneficiary gets the dough since b/c of the ademption of the gift of pinkacre

Front 42

sale by guardian of specific gift

Back 42

if T is incapacitated and guardian sells the house, any remaining funds will go to beneficiary, IF they can be traced

Front 43

gifts of stocks / securities

Back 43

they are GENERAL legacies; except if it says "I give *MY* ibm stock" - that's a specific legacy; or gifts of closely held corps are SPECIFIC also;

Front 44

mistake in will

Back 44

plain meaning will NOT be overturned by extrinsic evidence ($100k not $10k); it is presumed that T read his will and intended its consequences

Front 45

latent ambiguity in will

Back 45

if not sure which kid he meant, then extrinsic evidence; if that doesn't work, gift will fail

Front 46

patent ambiguity

Back 46

"I give $25 (twenty five thousand) to X" - extrinsic evidence comes in, including statements to attorneys; but NOT statements to THIRD parties

Front 47

conditional wills

Back 47

if truly conditional, probate is denied; but if it expresses motive, that's ok

Front 48

"negative bequest" rule

Back 48

(opposite from C/L) in NY, words of disinheritance are given FULL effect, even in partial intestacy; but if hated child has children, they take via anti-lapse as if hated one had predeceased

Front 49

contracts relating to the will

Back 49

a contract to make a will or not to revoke can be established by an express statement IN THE WILL that its provisions constitute a K b/w the parties (???)

Front 50

effect of contract in the will

Back 50

if survivor breaches by writing a new will w/inconsistent provisions, then 1) probate new will even tho; 2) impose a constructive trust in favor of original intended beneficiaries (???)

Front 51

the elective share

Back 51

the greater of $50k or 1/3 of estate; all other beneficiaries contribute pro-ratably

Front 52

T-Subs, generally

Back 52

testamentary substitutes - protects him from transferring out the good stuff b/f his death; these make up the "augmented estate" - 7 for TS->LEG UP; but 6 don't - LOGPIT

Front 53

NOT t-subs

Back 53

LOGPIT - Life ins; O: 1/2 of qualified pension plans; G - gifts under $11k ; P - pre-marriage irrevocable transfers; I - irrevocable transfers > 1y b/f death; T: transfers w/retained life estate b/f 9/1/92

Front 54

survivorship estates & elective shares

Back 54

if decedent had survivorship estate with TP and created post-nuptial, then "consideration furnished" test applies; surviving spouse has BoP as to amount of decedent's contribution

Front 55

domiciles & elective shares

Back 55

only a spouse of a decedent domiciled in NY @ time of death has a right to elective share

Front 56

exempt personal property set aside from elective shares

Back 56

car, furniture, $15k cash up to total of $56k come "off the top" - so???

Front 57

testamentary capacity

Back 57

T must understand the nature of the act; know the nature and approx value of property; know the natural object of his bounty (his family members & loved ones); and understand the disposition he was making [but this is less capacity then any other legal instrument]

Front 58

elusive interval

Back 58

it might be found that an otherwise incompetent T made his will during an "elusive interval"

Front 59

undue influence in will making

Back 59

BoP on contestant to prove: existance & exercise of influence; 2) effect of such influence was overpowering the mind & will of T; and 3) the product is a will which wouldn't have happened BUT FOR the influence

Front 60

testamentary gift to lawyer

Back 60

if lawyer prepared the will, inference of undue influence which satisfies contestant's BoP and even if not contest, automatic scrutiny by ct

Front 61

no contest clause in will

Back 61

given full effect, even if there was probable cause to challenge the will; UNLESS challenge by PC of forgery or revocation by later will (not revocation by phys act); or if just construciton of will's terms; or if objects to jurisdx

Front 62

Powers of Appointment

Back 62

PoA is authority created by a person (donor) for another (donee) to designate, w/in limits, who shall take property

Front 63

takers in default

Back 63

if the donee of a PoA fails to correctly exercise his power, they take

Front 64

general PoA

Back 64

you can do anything

Front 65

special PoA

Back 65

the donor limits who you can appoint and does not permit you to appoint to yourself

Front 66

presently exercisable PoA

Back 66

can exercise right now, during my lifetime

Front 67

testamentary PoA

Back 67

can only appoint by will

Front 68

wills & PoA

Back 68

a will exercises all PoA's held by T; so if D doesn't exercise her PoA, residuary takes it, NOT the takers in default

Front 69

elective shares & PoA

Back 69

general presently exercisable PoA's only are T-Subs, b/c he can get to it in his lifetime

Front 70

disqualification of spouse from intestate share

Back 70

DISMAL: Divorce; Invalid divorce (she tried to get a divorce, but messed up); Separation decree, if rendered against surviving spouse (???) (not sep. agreements); Marriage is void (incestuous/bigamous); Abandonment or Lack of support (if surviving spouse abandoned)

Front 71

intestacy & adoption

Back 71

1) adopted kid loses rights from natural parents; 2) unless if child was adopted by spouse of natural parent, child inherits naturally + from adoptive parent; 3) BUT if child is adopted by relative, child adopts under natural relationship ONLY; 4) unless decedent is adopting parent, then child inherits from adoptive reelationship ONLY

Front 72

self-proving affidavit

Back 72

Ws sign a sworn statement in the presence of an atty that recites all of the statements they would make if called to testify; can be signed anytime; so don't have to call Ws; the will is admissible on this alone UNLESS an interested party objects; then they have to come to testify

Front 73

mistake child, if he gets, here's what….

Back 73

1) if no provision for A/B, then C gets zip; 2) if gifts to A/B, C shares as a class gift; 3) if A/B got different amounts (10k/5k), then C gets 1/3 deducted proportionately (tough math); 4) if T's intent was to make a limited provision to A/B, C gets intestate share; 5) if T didn't have an A/B, "C" gets intestate share

Front 74

T-Subs, name them

Back 74

Totten trusts; Survivorship estates (half); Lifetime transfers w/strings (revocable trusts); Employee pension, etc.; Gifts made w/in 1 year of death > $11k, or gifts made in fear of impending death, any amount; U - US govmt bonds or other pay-on-death arrangements; Powers of appointemnt - property over which decedent held presently exercisable power