Changes in beneficiaries, property; class gifts; surviving spouse elective share Flashcards
What causes a gift by will to lapse?
If the beneficiary predeceases the testator, her gift lapses.
How do New York anti-lapse statute work?
Where the beneficiary predeceases the testator and leaves issue, the disposition does not lapse and vests in the beneficiary’s surviving issue, where the beneficiary is the testator’s ISSUE or SIBLING.
How is a lapse in residuary gift managed under New York wills law?
If the residuary estate is devised to 2 or more people and the gift to one of them fails, their share passes to the other residuary beneficiaries pro rata. The only exception is the anti-lapse statute.
What takes priority the anti-lapse statute or a gift conditioned on survival?
Where a gift in a will is conditioned on the beneficiary surviving the testator, that precludes the application of the anti-lapse statute.
What is ademption?
Ademption is when a specific bequest is a gift or item that is no longer in the testator’s estate as of his death. This bequest is adeemed. It fails. Partial ademption means that the amount still in the estate goes to the beneficiary.
Where there is a general disposition or a demonstrative disposition (gifts of a general amount to be paid to a beneficiary out of specific or identified property), what happens if the specific property is not in the estate as of death (ademption)?
Other property of the testator’s estate may have to be sold to satisfy general or demonstrative dispositions.
Four exceptions under New York law where ademption does not apply?
- Change of form but not substance (e.g., the interest in a partnership that has Incorporated).
- Conveyance of an incompetent person’s property – the specific beneficiary can receive the remaining proceeds if a specific asset was sold to cover the costs of an incompetent person.
- A beneficiaries entitled to insurance proceeds paid after the testator’s death for a piece of property specifically bequeathed to the beneficiary.
- Executory agreements for conveyance of specifically devised property result in the beneficiary receiving the proceeds, provided conveyance has not taken place as of the time of death.
When a beneficiary receives property that is subject to liens, are those liens exonerated (paid off from residue of the estate) upon the testator’s death?
No, liens are not exonerated unless the will specifically calls for that.
Is a disposition to “children” inclusive of adopted children? Stepchildren? Grandchildren? Posthumous children?
“Children” includes biological, posthumous, adopted children. Stepchildren and grandchildren are not included.
- Do brothers and sisters include half-brothers and half-sisters?
- Do cousins include 2nd and 3rd cousins?
It does not include half-brothers or half-sisters
2. It does not include 2nd or 3rd cousins, presumptively only 1st cousins.
what is a gift to “children per stirpes”?
a gift to “children per stirpes” means “to my kids in equal share; but if any child dies pre-distribution, his or her descendants take that share pro rata”
Disposition to heirs, next of kin, relatives, or family means what?
It means it goes to distributees as defined in the intestacy statutes
How to the class gift work? What is its interrelation with the anti-lapse statute?
Is a gift to SURVIVING members fitting apes specific description (rather than particular individuals). If the grantor was “group minded”, that is sufficient. The anti-lapse statute contains the result of a class gift – that is, it takes precedence.
When does a class close? How does it differ if it’s a gift by will versus a postponed gift? What if it is subject to condition of reaching a particular age? What about per capita gifts (to children of B)?
The rule of convenience dictates that a class closes when a member of the class can call for distribution of his share of the class gift. If it is a gift by will, it goes to all members of the class a live upon the testator’s death. If it is postponed (e.g., by a life estate to another person), the class closes when the preceding estate terminates in the 1st class member can demand his share. A gift to the children of B closes upon the testator’s death – all children that are alive or in gestation are class members, and other children are not.
How does the surviving spouses elective share work?
The surviving spouse it’s the greater of $50,000 or one third of the net estate. The actual amount is the elective share MINUS the value of all outright dispositions passing to the spouse under the will. This requires that the decedent was domiciled in New York as of his death. The elective share applies to all of the decedent’s real and personal property wherever located.
Does the “fat estate” include testamentary substitutes for purposes of calculating the elective share of the surviving spouse?
Yes! Accordingly, the “net estate” includes irrevocable gifts over $13,000, gifts upon death, lifetime transfers with retained powers, joint tendencies and tendencies by the entirety, survivorship bank accounts, Totten trusts, other property interests.
Procedurally,when must the surviving spouse file their election (electing their share) in the Surrogate’s Court?
Within 6 months of the issuance of letters of administration, and in no event later than 2 years after the decedent’s death, subject to six-month extension periods for good cause.
What are letters of administration?
They are documents granted by the probate or surrogate court appointing someone to deal with your state.
If the surviving spouse dies without making an election, what happens?
The right of election is personal to the surviving spouse. If the surviving spouse dies without making election, or personal representative cannot exercise the right of election.
How is the elective share satisfied? That is, how is the surviving spouse paid her share?
All other beneficiaries a reduced on a pro rata basis.
How does a waiver of the right of election (of the elective share of the surviving spouse) happen?
Such a waiver may occur before or after marriage. It doesn’t require consideration. It must be in writing, signed, and acknowledged by a Notary Public.
When is a spouse disqualified from exercising her right of election (of elective share)? 4 situations disqualify you: also, what about adultery or cruelty?
- If there is a pre-death finalized divorce, separation, or annulment
- The marriage is bigamous, incestuous, or prohibited
- The surviving spouse abandoned the deceased spouse through death, or
- The surviving spouse failed or refused to support the deceased spouse
NEITHER cruelty nor adultery bars the right of election, though open and notorious cohabitation with another constitutes abandonment.
When a child predeceases his parent and is married, when can the child’s widow take under the antilapse statute?
Never. The antilapse statute cannot benefit an in law of the decedent; it can only benefit someone who is stepping into the shoes of the predeceased brother, sister, or issue of the decedent, which means not a husband or wife, but only issue of the predeceased issue or sibling.
when A has kids, then marries B, then A dies, then B dies, do A’s kids take under antilapse statute?
no! antilapse only applies to your siblings and issue, NOT TO YOUR SPOUSE.
