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NY BAR REVIEW > NY BAR REVIEW TRUSTS, WILLS AND ESTATES LAW COURSE > Flashcards

NY BAR REVIEW TRUSTS, WILLS AND ESTATES LAW COURSE Flashcards

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1
Q

if property is NOT disposed of by will, distribution is as follows if decedent is survived by spouse and issue, then:

A

50k and half of residue to spouse.

remainder to issue by representation.

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2
Q

if property is NOT disposed of by will, distribution is as follows if decedent is survived by spouse and NO issue, then:

A

whole to spouse

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3
Q

if property is NOT disposed of by will, distribution is as follows if decedent is survived by issue and NO spouse, then:

A

whole to issue by representation

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4
Q

if property is NOT disposed of by will, distribution is as follows if decedent is survived by parents, and NO spouse and NO issue, then:

A

whole to parents

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5
Q

if property is NOT disposed of by will, distribution is as follows if decedent is survived by NO spouse and NO issue, and NO parents, then:

A

whole to issue of parents by representation

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6
Q

if property is NOT disposed of by will, distribution is as follows if decedent is survived by ONLY grandparents or their issue, then:

A

half to paternal grandparents or their issue by representation, and other half to maternal grandparents or their issue by representation.

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7
Q

what is issue of grandparents?

A

ONLY children and grandchildren

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8
Q

by representation, distribution ends at whom?

A

first cousins

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9
Q

if NO children or grandchildren of decedent’s grandparents survive decedent, estate passes how?

A

half to great grandchildren of maternal grandparents per capita and half to great granchildren of paternal grandparents per capita

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10
Q

what is per capita?

A

equal shares

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11
Q

if decedent is NOT survived by any mentioned relatives, then??

A

estate escheats to the STATE

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12
Q

parent is DISQUALIFIED from inheritance if what?

A

fails to support child or abandons child while child is under 21, whether or not child dies before 21.

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13
Q

what is abandonment according to ct of appeals?

A

settled purpose to be rid of all parental obligations or forego all parental rights

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14
Q

a parent may regain right to inherit if does what?

A

resumes parental duties, financial support, and continues such until death of child

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15
Q

spouse is DISQUALIFIED from inheritance if what?

A

marriage was void under domestic relations law.
parties were legally separated or divorced under final decreed.
surviving spouse abandoned or refused to support deceased spouse and such abandonment or refusal to support continues through time of death.

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16
Q

intestate

A

succession

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17
Q

abandoned

A

property law

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18
Q

property not disposed of by will is distributed pursuant to?

A

EPTL 4-1.1

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19
Q

if decedent survived by spouse and issue?

A

50k and 1/2 residue to spouse and remainder to issue by representation

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20
Q

if decedent survived by spouse and no issue?

A

whole to spouse

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21
Q

if decedent survived by issue and no spouse?

A

whole to issue by representation

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22
Q

if decedent survived by parents but no spouse or issue?

A

whole to parents

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23
Q

if decedent survived by no spouse, issue or parent?

A

whole to issue of parents by representation

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24
Q

if decedent survived by grandparents or their issue?

A

1/2 to paternal grandparents or their issue by representation and 1/2 to maternal grandparents or their issue by representation.

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25
Q

what is issue of grandparents?

A

children of grandchildren

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26
Q

by representation, distribution ends at?

A

first cousins

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27
Q

if no children or grandchildren of decedent’s grandparents survivie decedent, estate passes how?

A

1/2 to great grandchildren of maternal grandparents, per capita, and 1/2 to great granchildren of paternal grandparents, per capita

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28
Q

what is per capita

A

equal shares

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29
Q

if decedent isnt survived by any of above relatives?

A

estate escheats to state via abandoned property law

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30
Q

parent disqualified from inheritance if?

A

fails to support child or abandons child while child is under 21, whether or not dies before 21.

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31
Q

court of appeals’ definition of abandonment?

A

settled purpose to be rid of all parental obligations or forego all parental rights

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32
Q

parent may regain right to inherit if?

A

resumes parental duties, financial support, and continues fulfilling until death of child

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33
Q

spouse disqualified from sharing in intestacy if?

A

marriage was voide under DRL, parties were legally separated or divorced under final decree, or, surviving spouse abandoned or refused to support deceased spouse and such abandonment or refusal to support continues through time of death

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34
Q

non marital child

A

full inheritance rights from mother and mother’s family

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35
Q

non marital child inherits from

A

birth father only if paternity is established by order of filiation declaring person to be child’s father, mother and father acknowledged paternity under public health law, father files witnessed and acknowledged affidavit of paternity with putative father registry, paternity established by clear and convincing evidence, including DNA test, or if father openly and notoriously acknowledged child as own

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36
Q

rights of non marital children extend to

A

their issue

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37
Q

children conceived after

A

parents’ death

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38
Q

children conceived from genetic material of deceased individual

A

distributee of child’s genetic parent and may be included in any disposition to class described as issue, children, descendants, heirs, other term in a will, trust, other instrument created by genetic parent.

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39
Q

genetic parent must have created a written instrument

A

within 7 years of their death and said instrument must provide consent for use of their genetic material

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40
Q

child must be conceived no later than

A

24 mths after genetic parent’s death or born no later than 33 months after genetic parent’s death

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41
Q

formalities a testator must follow to execute a valid will?

A
  1. will signed at end by testator or person on his behalf in presence of testator and by his direction.
  2. testator sign his name and declare to each attesting witness that instrument he is signing or signed is his will.
  3. at least 2 attesting witnesses must sign end of will in testator’s presence. testator may sign in presence of attesting witnesses,who see him sign, or he may acknowledge his signature to them.
  4. attesting witnesses must attest his signature as affixed or acknowledged in their presence and at the request of testator, sign their names within 30 day period of each other.
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42
Q

oral / nuncupative wills valid?

A

no

43
Q

handwritten / holographic will valid?

A

no

44
Q

codicil formalities

A

same as will -

  1. will signed at end by testator or person on his behalf in presence of testator and by his direction.
  2. testator sign his name and declare to each attesting witness that instrument he is signing or signed is his will.
  3. at least 2 attesting witnesses must sign end of will in testator’s presence. testator may sign in presence of attesting witnesses,who see him sign, or he may acknowledge his signature to them.
  4. attesting witnesses must attest his signature as affixed or acknowledged in their presence and at the request of testator, sign their names within 30 day period of each other.
45
Q

if codicil not executed with formalities, it is what?

A

ineffective and will remains as originally executed

46
Q

doctrine of incorporation by reference

A

not recognized

47
Q

a will may or may not incorporate by reference any document that was not signed and attested w formalities

A

NOT

48
Q

a testator may direct in his will that assets be poured over into a what?

A

lifetime trust

49
Q

pour over trust

A

needn’t be executed with same formalities as a will, but must be in existence before or be executed contemporaneously with the will. trust must be in writing, signed by creator and at least one trustee, and either acknowledged like a deed or signed by 2 witnesses.

50
Q

revocation how?

A

physical act or subsequent writing

51
Q

will can be revoked by

A

another will

52
Q

will can be revoked by

A

writing of testator clearly indicating intention to effect such revocation, executed with formalities prescribed by statute for execution and attestation of will

53
Q

will can be revoked by

A 
physical act:
burning.
tearing.
cutting.
canceling - writing across words.
obliterating.
mutilating.
54
Q

testator may destroy will himself or direct another person to do so

A

in his presence and in presence of 2 witnesses other than person destroying will

55
Q

whether a marking is sufficient to constitute revocation is

A

question of fact for courts to decide

56
Q

will may be revoked or altered by

A

nuncupative or holographic declaration of revocation as set in EPTL

57
Q

revocation effective only if

A

intended by testator

58
Q

revocation of will also revokes what?

A

codicils to revoked will

59
Q

a will pay be partially revoked by?

A

another will or a writing executed and attested with formalities of a will

60
Q

statute does not allow for partial revocation of a will by?

A

physical act

61
Q

copy of lost or destroyed will may be submitted for probate only if

A

will hasnt been revoked.
will was properly executed.
AND
all of provisions of will can be clearly and distinctly proved by each of at least 2 credible witnesses or by copy or draft of will proved to be true and complete

62
Q

when a will previously executed cannot be found after death of testator, theres a strong presumption that it was revoked by?

A

destruction by testator

63
Q

proponent of lost/destroyed will has burden of proof to show that testator did not what?

A

destroy will with intent to revoke it

64
Q

if testator executes a will that is revoked by a later will containing revocation clause then?

A

first will cannot be revived by testator merely revoking later will.

65
Q

prior will or disposition may be revived by?

A

executing codicil that incorporates provisions of will by reference.
writing executed with will formalities declaring revival of old will.
OR
re-execution and re-attestation of prior will in accordance with will formalities.

66
Q

what is the doctrine of dependent relative revocation?

A

where the intention to revoke a will is conditional and where the condition is not fulfilled, revocation is not effective

67
Q

when is it usually applied - the doctrine of dependent relative revocation?

A

where testator cancels a will with the intent to make a new testamentary disposition, and the new disposition is not made or fails for some reason

68
Q

dispositions to former spouse, including by will, by powers of appointment, by beneficiary designations for securities, life insurance, pension, retirement benefits, revocable trust, totten trust, are revoked if what?

A

spouses are judicially separated, divorced or if their marriage is annulled or declared void or dissolved on the ground of absence.

69
Q

nominations of former spouse to serve in fiduciary or representative capacity is also what?

A

revoked

70
Q

former spouse is treated as what?

A

having predeceased testator. thus disposition passes to alternative beneficiaries

71
Q

anti _____ statute

A

lapse

72
Q

what is anti lapse statute?

A

if testator makes disposition to his brother, sister, or issue in a will, and beneficiary predeceases testator, disposition passes to issue of predeceased brother, sister or issue.

73
Q

if will executed after 8.31.92, disposition passes how?

A

by representation, otherwise, per stirpes

74
Q

class gifts to issue are not subject to what?

A

anti lapse statute and are governed instead by EPTL, where disposition to issue will pass by representation, effective 8.31.92

75
Q

when a residuary disposition to 2 or more residuary beneficiaries is ineffective in part, the ineffective disposition will what?

A

pass to other residuary beneficiaries, ratably, unless testator has provided otherwise or unless anti lapse statute applies to lapsed portion

76
Q

what is identity theory of ademption?

A

when testator makes specific disposition of property and property is not part of estate at testator’s death, disposition fails. where specifically devised property changes form, specific gift does not adeem.

77
Q

conveyance, settlement, or other act of testator by which an estate in his property, previously disposed of by will, is altered but not wholly divested causes what?

A

does not revoke such disposition, but the estate in the property that remains in the testator passes to the beneficiaries pursuant to the disposition.

78
Q

any such conveyance, settlement, or other act of testator, which is wholly inconsistent with such previous testamentary disposition causes what?

A

revokes it

79
Q

if specific disposition of property is damaged or destroyed before decedent’s death and insurance company reimburses executor after decedent’s death, then?

A

beneficiary is entitled to that money

80
Q

what is the doctrine of advancement?

A

testator may satisfy part or all of a disposition or intestate share by making a lifetime gift to beneficiary. limited to situations in which such gifts are accompanied by writing, which must be executed contemporaneously with the gift and signed by the decedent or acknowledged by donee, stating that donor intended gift to be an advancement. decedent must intend to substitute gift for donee’s share of estate

81
Q

attesting witness/beneficiary - competency

A

disposition to attesting witness is void unless 2 other disinterested attesting witnesses available to testify

82
Q

interested witness

A

remains competent witness and may be called to testify as to validity of will.

83
Q

if interested witness is also intestate distributee, witness is entitled to what?

A

receive the lesser of his intestate share or disposition made to him in the will

84
Q

what is renunciation?

A

a person who disclaims a gift - renounces interest in decedent’s estate - considered to have predeceased the decedent

85
Q

in order for disclaimer to be valid, must be what?

A

in writing.
signed and acknowledged before notary public.
AND
accompanied by separate affidavit stating that no consideration was received for disclaimer by person whose interest will be accelerated.

86
Q

when must a beneficiary renounce a disposition?

A

within 9 months of transfer, and disclaimer is irrevocable

87
Q

funeral expenes, debts, taxes, administration expenses, retain what?

A

priority over dispositions under a will and distributions in intestacy.

88
Q

unless otherwise provided by testator, if assests of testator’s estate are insufficient to pay all obligations of estate and distributions under will, then?

A

interests in estate will abate in following order:
distributive shares in property not disposed of by will.
residuary dispositions.
general dispositions.
demonstrative dispositions.
specific dispositions.
dispositions to decedent’s spouse that are eligible for estate tax marital deduction.

89
Q

testator may provide for a different order of what?

A

abatement

90
Q

dispositions to issue will pass how?

A

by representation if instrument was created after 8.31.92.

91
Q

under by-representation disposition, issue of deceased issue take what?

A

equal share with other survivors at their level

92
Q

prior to this date, dispositions to issue will pass how?

A

per stirpes

93
Q

what is a per stirpes distribution?

A

issue of deceased issue take parent’s share

94
Q

if property passes by representation to decedent’s issue and he is survived by children a and b, and grandchildren g1 and g2 from predeceased child c, and by grandchild g3 from predeceased child d, then?

A

children a and b each get 1/4 estate.

other half is divided evenly - 1/6 estate each, among grandchildren g1,2,3.

95
Q

under per stirpes distribution, g’s get what?

A

grandchildren g1 and g2 share 1/4 of the estate and grandchild g3 alone receives 1/4 estate

96
Q

when a testator disposes of property in favor of a class described as his issue, then?

A

adopted, posthumous, and non marital children are entitled to share in the disposition

97
Q

genetic child may be included where?

A

in any disposition to a class

98
Q

property not disposed of by will distributed pursuant to which law

A

estates powers and trusts law

99
Q

property not disposed of by will- decedent survived by spouse and issue

A

50k and half of residue to spouse and remainder to issue by representation

100
Q

property not disposed of by will- decedent survived by spouse no issue

A

whole to spouse

101
Q

property not disposed of by will- decedent survived by issue no spouse

A

whole to issue by representation

102
Q

property not disposed of by will- decedent survived by parents no spouse and no issue

A

whole to parents

103
Q

property not disposed of by will- decedent survived by no spouse nor issue nor parent

A

whole to issue of parents by representation

NY BAR REVIEW (123 decks)

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