NY Wills Flashcards
PROBATE Order of priority for appointment as administrator.
- surviving spouse
- children
- grandchildren
- father or mother
- brothers or sisters
- any other distributee
INTESTACY Distribution scenarios.
- Survived by Spouse, NO Children – surviving spouse inherits entire estate
- ** Survived by Spouse and Children or children’s issue** - spouse takes $50k + ½ of residuary, children take other ½ ,** UNLESS** estate is less than $50k then whole estate to surviving spouse.
- ** Survived by children Only** – passes in equal shares to each child
- Survived by children & issue of predeceased children – by representation, per capita at each generation
- Parents
- Issue of parents (siblings) - brothers, sisters, or their issue
- ½ to maternal grandparents & ½ to paternal (if not living to their children & grandchildren)
- Great grandchildren of grandparents ½ in equal shares to great-grandchildren on maternal/paternal side
- Escheat to estate
INTESTACY
When is a spouse disqualified from taking under intestacy?
DISMAL
- Final decree of divorce/annulment
- Invalid divorce by surviving spouse.
- Separation decree rendered against surviving spouse, only.
- Sep. agmt – only if specifically waives rts.
- Marriage is void as incestuous, bigamous, fraud
- Abandonment or Lack of support by surviving spouse
➩**Treat as though surviving spouse predeceased dead spouse. Sever joint tenancy as well.
INTESTACY
By representation per capita.
- Step 1 – 1 share each at the 1st generational level at which there are survivors
-
Step 2 – shares of the deceased persons at the first generational level are combined & then divided equally among the takers at the next generational level
- **persons in the same generation are always going to have equal shares
- TIP – “At the 1st generational level A is alive so that’s where we make the first division. If each person were alive at that generation they would get 1/3 share so since A is alive she gets her 1/3 share. Dead B & Dead C would each get 1/3 also so their shares are combined to make 2/3 and drop down to their issue in the next generational level are divided equally.”
INTESTACY
Adopted Children Inheritance Rights
Child adopted by:
- New family - no inheritance rights from nat’l parents
- Spouse of a natural parent - inherit from adopting parent & the natural parent & the deceased parent’s family (only goes down, not up).
- A relative – inherits under the nat’l relationship only, unless the decedent was the adopting parent, then only inherits under adoptive relationship
INTESTACY
Nonmarital Children Inheritance Rights
_Full inheritance rights from mother & kin & vice versa. _
_Inherits from father if paternity estab: _
- Father married the mother after child’s birth (legitimation by marriage)
- Order of filiation during father’s lifetime
- Father files a witnessed & acknowledged affidavit of paternity w/ Putative Father Registry
- After death - paternity est. in probate proceeding by C&C evidence AND the father openly and notoriously acknowledged the child as his own
(IN)TESTACY
Disclaimer/Renunciation Requirements
- Writing, signed & acknowledged.
- Separate sworn affidavit stating no consideration received for making the disclaimer
- Must be Irrevocable (can’t change your mind after filing).
- The will must be filed with the Surrogate’s Court within 9 months after decedent’s death.
- Issue of distributees/beneficiaries who disclaim can take under anti-lapse statute BUT disclaimer cannot decrease another party’s share (ct. will act as if disclaiming child 1 day after the parent).
- Cannot disclaim to remain eligible for Medicaid or to avoid federal tax lien.
INTESTACY
Advancement Presumption
- NY rejects the “advancement presumption” - lifetime gift to a child is not an advance payment of intestate share UNLESS proved by (1) a contemporaneous writing made at the time of the gift that is (2) signed by the donor or the donee. (Writing + GIft at the SAME TIME; ex. Write letter on Jan 25 and convey advancement on Jan 25th).
- Advancement Calculation - add it to total estate, divide by number of children & subtract amount of advancement from gift to that child.
- Ex - $30k gift to A. Dad dies leaving $300k to A, B & C. So take $330k/3 = $110k each. B & C each get $110k and the remaining $80k goes to A.(Similar to Satisfaction of Legacy)
EXECUTION OF WILLS
Requirements of a validly executed Will.
- 18 years old
-
Signed by Testator (or someone at T’s direction & in her presence) – any mark intended to be signature
- Proxy signature - Must sign her same, cannot be 1 of 2 nec. Ws, affixes address
- Signature is at end of Will at the end “Thereof“
- Sign the will or acknowledge earlier signature in presence of each witnes
- Publish the Will (declare to Ws that the document to be their last will and testament)
- Two attesting witnesses who sign will within 30 days of each other (time starts running when 1st W signs)
EXECUTION OF WILLS
Probate Proceeding
Surrogate’s Court proceeding in which it is judicially determined that:
(1) the decedent died with a validly executed will & his heirs or intestate distributees are determined (to put them on notice of the existence of a Will) AND
(2) a personal representative named in the Will – executor - is appointed by the court to administer the decedent’s estate.
WILL EXECUTION
What is the effect of words beneath the signature on a Will?
- Will valid but words beneath signature are ignored UNLESS words after signature so material that to only give effect to above words would defeat intent of T, then entire will invalid.
VALIDITY OF WILLS
What is a codicil?
- Later amendment or supplement to a Will that must be executed with the same will formalities.
- Revocation of a codicil DOES NOT REVOKE the underlying will.
VALIDITY OF WILL
Burden of proof & facts necessary to show due execution.
**Burden of proof is on the Will proponent to prove the will was duly executed.
Attestation clause is prima facie evidence of facts recited BUT will is no self-proved.
- Both attesting Ws must testify to the facts nec. to show due execution.
- 1 W dead, absent, incompetent, or cannot w/ DD be found - testimony of 1 okay
- No W able to testify - Will proponents must prove signature of Testator & 1 Witness
VALIDITY OF WILL
Self-Proving Affidavit
Witnesses sign a sworn affidavit in the presence of a notary public ANY TIME after the will is executed (& attached to Will) that recites all statements they would make if called to testify in court – has the effect of sworn testimony.
Will is admissible to probate on strength of the sworn recitals in the affidavit unless an interested party (heir, or legatee under earlier Will) objects → proof of due execution nec. then.
WILL VALIDITY
Foreign Wills Act
Will is admissible to probate in NY if validly executed under:
- New York Law; or
- Law of the state where it was executed, or
- Law of the state where T was domiciled, either at time of Will execution or death.
Once admitted to probate, NEW YORK law governs.
WILL VALIDITY
Interested Witness Statute
Will beneficiary is attesting W → will is valid but gift void UNLESS
at least 3 Ws & the other 2 are disinterested, or
interested W would be an intestate distributee if T had died w/o a Will
“Whichever is Least” Rule - witness-beneficiary takes the lesser of the bequest under the will or his intestate share. (*say bequest is void, if it is)
W can be named as executor in the Will – does not trigger statute.
WILL REVOCATION
How can a will be revoked?
- Subsequent testamentary instrument executed w/ appropriate formalities
- By physical act with intent to revoke
- By implication - 2 wills & no express revocation – read them together – 2nd will treated as codicil – revokes 1st to extent of inconsistencies BUT 2 wills wholly inconsistent – 1st will revoked by implication
- By proxy – (1) at T’s request, (2) done in T’s presence, (3) W’ed by 2 people (other than actor)
- By presumption - when will last seen in T’s control & cannot be found or is found mutilated (can be rebutted)
- NO partial revocation by physical act – anything written or crossed out on will after execution is “nugatory” – must execute as new will or codicil
WILL VALIDITY
Holographic & Nuncupative Wills
- Holographic will - written entirely in the testator’s handwriting and signed but not witnessed BUT remember if witnessed then valid
- Nuncupative will – oral will
- BOTH VOID in NY - except for armed services during declared or undeclared war (expires one year after discharge) & mariners are sea (expires after 3 years)
- TIP - New Jersey DOES recognize holographic Wills so if a NY resident executes a Will in New Jersey and dies in NY the Will is valid under the Foreign Wills Act.***
WILL REVOCATION
What must person prove to overcome presumption of revocation?
- Due execution and
-
Must establish will was not revoked by:
- (1) overcoming the presumption of revocation that arises from the will’s non production; or
- (2) prove the revocation should be disregarded because of DRR.
- All provisions of Will must be clearly & distinctly proved by each of at least 2 credible Witnesses or by a copy or draft of the Will proved to be true & complete.
WILL REVOCATION
Revival of revoked wills & Dependent Relative Revocation.
Revoked will cannot be “revived” simply by destroying the later will – revoking codicil does not revoke entire will - provisions in the will that were not changed by the codicil remain in effect.
Can only revive by - Re-execution or Republication by codicil
*MAY* apply ¬Dependent Relative Revocation - allows revocation to be disregarded when premised/conditioned upon, a mistake of law as to the validity of another disposition – i.e. though it would revive Will #1
Effect - disregard the revocation Will #2 & probate it
Argue both ways!
DRR should only be applied if its use comes close to doing what T intended rather than intestate.
DEATH OF BENEFICIARY
What is the Surviving Beneficiaries Rule and When does it apply?
Surviving Residuary Beneficiaries Rule:
- When residuary is devised to 2 or more persons & gift to 1 fails/lapses (& anti-lapse does NOT apply),
- Then other residuary beneficiaries take the entire residuary estate, in proportion to their interest in the residue, absent contrary provision in the Will.
➩Anti-lapse trumps SRB Rule.
DEATH OF BENEFICIARY
What is the Anti-Lapse Statute and When does it apply?
Gift that normally would lapse if a beneficiary predeceased the T is saved if the deceased beneficiary was T’s issue or brother or sister AND the predeceased beneficiary leaves issue who survives the T.
- Does not apply if condition precedent – “if he survives me.”
- If adopted-out child specifically listed as beneficiary in will, adopted-out child’s issue can take under anti-lapse statute.
-DOES NOT APPLY TO SPOUSE
DEATH OF A BENEFICIARY
Uniform Simultaneous Death Act
- If 2 persons die under circumstances such that there is insufficient evidence that they have died otherwise than simultaneously, the property of each is distributed as though he survived.
- Ex – Mary has 2 children, Sam & Donna. Sam has a son, Sam, Jr. Sam & Mary are killed in a car accident. Life insurance policy says, “to my son Sam, if he survives me, otherwise to Donna.” Donna gets proceeds b/c treated as though Sam predeceased Mary.
- Ex - Will leaves residuary ½ to Donna & ½ to Sam. Anti-lapse applies to ensure that Sam, Jr. takes Sam’s ½.
- Jointly Held Property - Property passes as though each co-owner survived but there is no right of survivorship – gets converted to Tenancy in Common
- o Ex – H & W die simultaneously & JT w/ right of survivorship. H has 2 children, A & B, from a previous marriage, & a child w/ W. TIC - A, B, & C each take 1/3 of H’s half and then C takes W’s half.
DEATH OF BENEFICIARY
Class Gifts - Generic class & 1 BFY predeceases T
-
Generic class & 1 predeceases T - class members who survive T take (absent contrary provision).
- Anti-Lapse Trumps this.
