Protection for Chldren and Spouses

Question 0

How remote issue must be

to not be considered pretermitted

Answer 0

Issue more remote than grandchildren are not protected by the pretermitted

Question 1

Pretermitted Child

Answer 1

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

Question 2

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?

Answer 2

nothing.

since the children alive at execution received nothing

Question 3

Testators with then alive children at execution are provided for in the will
afterborn child will

Answer 3

share in the childrens gifts to the other children

Question 4

Testator has no living children at execution,

afterborn children are entitled to

Answer 4

intestate share

Question 5

Family members with limited support rights

Answer 5

decedents spouse and dependent children under the age of 21

Question 6

Covered assets protected by limited support right

Answer 6

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

Question 7

Exempt household items

Answer 7

utensils
sewing machine
appliances
computers
up to $20,000

Question 8

Exempt Family items

Answer 8

bible 
pictures
video tapes
discs and software used by family
up to $2500

Question 9

Exempt Farm Equipment

Answer 9

domestic animals with food for 60 days

one tractor and one lawn tractor up to $20000

Question 10

Transportation exception

Answer 10

family car up to $25000

spouse or children can choose vehicle worth more and pay the difference to the estate

Question 11

Cash exemption

Answer 11

money or personal property not to exceed $25000

unless such assets are needed to defray funeral expenses

Question 12

Exempt items exceeding caps

Answer 12

spouse or child must pay the difference to the estate

is subject to a specific legacy, payment of excess vests in the legatee

Question 13

How to calculate the value of exempt property

Answer 13

fair market value

less security interests or encumbrances

Question 14

Elective Share

Answer 14

Protects against intentional or unintentional disinheritance.

spouse can choose between statutorily fixed share
and amount bequeathed by will

Question 15

Amount of Elective Share

Answer 15

$50k or
1/3 of decedents net estate
whichever is greater

Question 16

Deductions from Elective Share amount

Answer 16

amount of ES
less any absolute interests transferred from T to spouse
through will, intestacy, or certain testamentary substitutes

Question 17

Net Estate is determined by the EPTL as

Answer 17

decedents probate estate
less debts, administration, and funeral expenses
plus certain testamentary substitutes

Exempt Property is Carved Out First before determining Probate Estate

Question 18

Testamentary Substitutes included in Net Estate

T-Subs (Need a) Legup

Answer 18

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

Question 19

Exclusions from Net Estate

Answer 19

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

Question 20

Funding elective Share

Answer 20

satisfied by pro rata reduction of all beneficiaries interests

in abating interests the character of testamentary plan must be preserved to maximum extent possible

Question 21

Legal Spouse - elective share is not available to

Answer 21

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

Question 22

Common Law Spouse and Elective Share

Answer 22

if validly contracted in another jurisdiction

decedent spouse was domiciled in NY at time of death

Question 23

Procedure for Claiming elective Share

Answer 23

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

Question 24

Waiver of Elective Share

Answer 24

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

Question 25

Survivors Estates that are Testamentary Substitutes

Answer 25

Joint Tenancies
TiE
Joint Bank accounts
survivor bank accounts

Question 26

Lifetime Transfers with Strings attached that are Testamentary Substitutes

Answer 26

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

Question 27

Not T-Subs - LogPit

Answer 27

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