Protection for Chldren and Spouses Flashcards
How remote issue must be
to not be considered pretermitted
Issue more remote than grandchildren are not protected by the pretermitted
Pretermitted Child
child born or adopted after execution of a parents will
protected against accidental disinheritance
Is pretermitted if (a) not provided for in the will
or (b) provided for outside of the will
Testator has children at time the will is executed and does not provide for then living children in the will,
a later born child will receive what?
nothing.
since the children alive at execution received nothing
Testators with then alive children at execution are provided for in the will
afterborn child will
share in the childrens gifts to the other children
Testator has no living children at execution,
afterborn children are entitled to
intestate share
Family members with limited support rights
decedents spouse and dependent children under the age of 21
Covered assets protected by limited support right
not part of probate estate
exempt from creditors claims, except funeral expenses
not subject to distribution under a will
property must be owned at time of death
granted to surviving spouse or children in addition to any bequest, elective share, inherited share, or omitted childs share
Exempt household items
utensils sewing machine appliances computers up to $20,000
Exempt Family items
bible pictures video tapes discs and software used by family up to $2500
Exempt Farm Equipment
domestic animals with food for 60 days
one tractor and one lawn tractor up to $20000
Transportation exception
family car up to $25000
spouse or children can choose vehicle worth more and pay the difference to the estate
Cash exemption
money or personal property not to exceed $25000
unless such assets are needed to defray funeral expenses
Exempt items exceeding caps
spouse or child must pay the difference to the estate
is subject to a specific legacy, payment of excess vests in the legatee
How to calculate the value of exempt property
fair market value
less security interests or encumbrances
Elective Share
Protects against intentional or unintentional disinheritance.
spouse can choose between statutorily fixed share
and amount bequeathed by will
Amount of Elective Share
$50k or
1/3 of decedents net estate
whichever is greater
Deductions from Elective Share amount
amount of ES
less any absolute interests transferred from T to spouse
through will, intestacy, or certain testamentary substitutes
Net Estate is determined by the EPTL as
decedents probate estate
less debts, administration, and funeral expenses
plus certain testamentary substitutes
Exempt Property is Carved Out First before determining Probate Estate
Testamentary Substitutes included in Net Estate
T-Subs (Need a) Legup
Totten Trust
Survivorship estates - JT’s, joint bank accounts, TiE
Lifetime Transfers with strings
Employee Pension - only 50% of qualified plan
Gifts over $13k within 1 year of death and Causa Mortis regardless amt
US Govt Bonds
Powers of Appointment
Exclusions from Net Estate
irrevocable gifts made more than 1 year prior to death
irrevocable gifts made before marriage
life insurance and annuities
interest in trust created by 3rd party
Funding elective Share
satisfied by pro rata reduction of all beneficiaries interests
in abating interests the character of testamentary plan must be preserved to maximum extent possible
Legal Spouse - elective share is not available to
either spouse after divorce or annulment
party to a void marriage
party to a valid separation agreement
spouse who obtained invalid marriage in another jurisdiction
spouse who unjustifiably abandoned and persisted until death
refusal to support
Common Law Spouse and Elective Share
if validly contracted in another jurisdiction
decedent spouse was domiciled in NY at time of death
Procedure for Claiming elective Share
must be alive to claim
minor or incompetent spouse, court can authorize representative to make election
must elect within 6 months from issuance of letters testamentary or administration
no later than 2 years from decedents death
extension available with showing of good cause
Waiver of Elective Share
Can be waived before or during marriage
with or without consideration
unilateral or bilateral
absolute or conditional
must be in writing and executed with the formality sufficient for a real property conveyance
Survivors Estates that are Testamentary Substitutes
Joint Tenancies
TiE
Joint Bank accounts
survivor bank accounts
Lifetime Transfers with Strings attached that are Testamentary Substitutes
Transfers where T retains the power to revoke invade consume dispose of principal name new benificiaries includes irrevocable transfers where T retains a life estate if transferred after 9/1/92
Not T-Subs - LogPit
Life Insurance unless payable to executor or estate
one half qualified pension
gifts under 13k in one year
pre-marriage irrevocable transfer
irrevocable transfers made more than one year before death
