Trust and Estates General

Question 1

NY will probate a “will,” including foreign wills or domiciliary that created a will in another outside of NY

Answer 1

As long as the will is executed in conformity with the laws of the state of NY or the law of the jurisdiction connected to the testator, even if those laws are less stringent then NY. NY provides the will must be in writing, except in holographic cases

Question 2

Wills executed by a NY domiciliary are valid and admissible to probate in NY provided that

Answer 2

1- The will is in writing
2- It is signed by the testator and the end, and
3- It is executed and attested to in accordance with the local laws of: (a) NY; (b) the jurisdiction in which the will was executed; and (c) the jurisdiction in which the testator was domiciled either at the time of execution or of death

Question 3

Testator’s publication of the will

Answer 3

the testator must “publish” the will so that the witnesses are aware they are witnessing the testator signing a will or the testator’s signature on the will, but it is the will of the testator they are acknowledging

Question 4

An estate’s representative under NY case law

Answer 4

NY allows the estate representative (not the will’s beneficiaries) to sue a lawyer for negligent estate planning that resulted in pecuniary loss (estate taxes charged to the estate)

Question 5

NY view on a drafting attorney’s negligence in overseeing a will’s execution, and the will is not admitted to probate

Answer 5

NY follows the minority view, and does not impose tort liability on the attorney for improper execution and the estate passes under intestacy. Beneficiaries cannot sue because there is no 3rd party privity between the attorney and beneficiaries

If the rule is violated and the attorney does not have the the disclosure document, the attorney can only receive 50% of the actual fees

Question 6

Pursuant to SCPA 2307-a where the attorney who drafts a will is designated executor of the testator’s estate

Answer 6

The drafting attorney must disclose to the testator that anyone can be designated executor, and the executor will be entitled to commissions as executor, and the law may be entitled to additional compensation for legal services to the estate.

Disclosure must be made and executed in a separate document (cannot be in the will) that is not easily over looked. The additional document must be signed by the testator and two witnesses

Question 7

SCPA 1407 pertaining to a lost will

Answer 7

States that a lost will can now be proven by either: (1) two witnesses or (2) by a copy or draft of the will which is proved to be true and complete

Question 8

What is the exception that arises under a lost will or non-production of a will

Answer 8

Explanation how it was lost or destroyed but not revoked by the testator. The will may be admitted to probate if the proponents of the will: (1) establish that the will was never revoked by the testator;(2) prove that the will was validly executed, and (3) clearly and distinctly prove all the will’s provision through credible testimony

Question 9

When a will that was in the decedent’s possession prior to his/her death, and cannot be found among his/her papers and belongings at the time of death is presumed

Answer 9

destroyed. However, the presumption of destruction is rebuttable, even though the assumption is that the decedent destroyed the will and revoked it before his death

Question 10

Will as an ancient document

Answer 10

A will may be admitted into evidence without proof of its proper execution if the instrument is over 30 years old, found in its natural place of custody and unsuspicious in appearance

Question 11

If both witnesses are dead or missing, outside the state or incompetent

Answer 11

The surrogate may admit the will based on proof of the testator’s handwriting and proof of at least one witness’ handwritten signature, together with other facts sufficient to prove the will

Question 12

Where one witness has forgotten the event or testifies against the execution of the will

Answer 12

The court may admit the will on the testimony of the other witness, and on other evidence sufficient to prove the will

Question 13

Missing Witnesses

Answer 13

If one of two witnesses cannot testify because of death, incompetency, absence from the state, or inability to be found within the state, then the surrogate has discretion to proceed without that witness’s testimony and allow the will into probate based on the testimony of a single witness

Question 14

When must the two witnesses be “disinterested”

Answer 14

Surrogate court held that there must exist two disinterested witness at the time the will is executed, not at the time the will is probated

Question 15

If the interested witness is also an intestate distrubutee

Answer 15

The will may be probated, but the interested witness receive only his or her bequest under either the will or intestate share, WHICHEVER IS LESS

Question 16

What is the affect of an attesting “interested witness.”

Answer 16

The fact that one attesting witness is also a beneficiary under the will does not void the will, but it will defeat the disposition intended to pass to the necessary interested witness

Question 17

What are the obligations and responsibilities of disinterested witnesses

Answer 17

Must sign after the testator. The witness must know they are signing the testator’s will. There is no requirement that the witnesses to a will be adults, just competent. The witnesses must watch the testator sign or be shown his signature, and the testator must publish, make it known that the witnesses are signing a will

Question 18

Attesting witnesses in NY need not sign in the presence of each other, but

Answer 18

Both witnesses must sign the will within 30 days of each other. There is a rebuttal presumption that this 30-day period requirement has been met

Question 19

Witnesses must sign

Answer 19

in the presence of the testator. A will cannot be legally executed under NY laws when the will is not in the presence of the decedent and witness to be identified by the decedent to the witnesses as to the paper itself and as to the testator’s signature

Question 20

One of the requirements for a will to be valid it must be witnessed by

Answer 20

two (2) uninterested witnesses

Question 21

Any added provision, alteration, or modification made after the will’s execution

Answer 21

Is invalid whether inserted above or below the testator’s signature. The timing of the alteration may be established by extrinsic evidence, such as a handwritten change in a will

Question 22

The testator’s signature must be subscribed

Answer 22

At the end of the will. The surrogate will totally disregard any language written beneath the testator’s signature, except for the attestation clause and witnesses signatures. The surrogate may invalidate the entire will if the will is so incomplete that it cannot be understood without the post-signatuare language or if omitting such language will subvert the testator’s general testamentary plan

Question 23

What gives rise to a presumption of compliance with all the statutory provisions when executing a will in NY

Answer 23

Execution is supervised by an attorney; a will’s attestation clause; witnesses’ self-proving affidavit

Question 24

what particular form or style does the EPTL prescribe when drafting a will?

Answer 24

The EPTL does not prescribe any particular form or style to be used when drafting a will. A will can be handwritten, typed or on a printed form. However, the EPTL does prescribe certain procedural requirements which require strict observance when executing a will

Question 25

A will and its codicil are regarded as

Answer 25

as a single instrument for the purpose of determining the testator’s intent

Question 26

What are the only ways to revoke a will

Answer 26

The only way to revoke a will in its entirety is by physically destroying it or executing a subsequent will that is inconsistent with the first, or has a clause in the second will that cancels and revokes the prior will. Physical destruction has to be done by the testator or at the direction and in the presence of the testator, and witnessed by two disinterested witnesses

Question 27

A codicil cannot

Answer 27

Totally revoke a will

Question 28

What is a codicil

Answer 28

A codicil is a supplement to a will. It may add to, partially revoke, alter or confirm the provisions of a prior will by republication. When a codicil is executed, it resets the date of the will to the date of the codicil

Question 29

valid holographic or nuncupative wills become invalid when made by a:

Answer 29

1. member of the armed forces, upon expiration of one year following the testator’s discharge from the armed forces.
   2- Person who accompanies members of the armed forces upon the expiration of one year from the testator’s ceasing to accompany such armed forces; or
   3- Mariner while at sea upon the expiration of three years from the time the will was made.

However, if the holographic or nuncupative will was the last will made and the person became incompetent before the statutory period, the wills remain in effect pasted the point of normal expiration

Question 30

NY recognizes holographic wills only if executed

Answer 30

by a domiciliary of a jurisdiction that recognized holographic wills either on the date of the testator’s death or on the date the testator executed a holographic will; or with a jurisdiction recognizing holographic wills as valid

Question 31

validity of a nuncupative or holographic will in NY

Answer 31

Only if made by: A member of the armed forces or in a warzone or on the eve of embarking to a war zone; A person who serves or accompanies the armed forces while the armed forces are engage in actual military or armed combat; or a mariner at see

Question 32

How does the estate account for missing heirs who have not been hear from in at least three years

Answer 32

After a diligent search including use of the internet, the surrogates can use the presumption that a family member has been heard from for three continuous years, and his/her absence cannot be explained, the surrogate can presume death, and the missing heir died without issue. If the missing heir returns after the surrogates court has presumed the heir is deceased, the heir will not be entitled to collect

Question 33

A holographic will

Answer 33

is one written and signed entirely in the hand writing of the testator. It need not be attested to by any witnesses, except for limited circumstances NY does not permit holographic wills. NJ permits holographic wills

Question 34

A nuncupative will

Answer 34

is an oral will, to be valid the existence and provisions of a nuncupative will must be clearly established by at least two witnesses (fox hole wills)

Question 35

Disqualification by a parent under intestacy laws

Answer 35

if a parent’s rights are terminated because of neglect, abandonment, or child abuse, the abusive parent’s intestacy rights to the child’s intestate estate are also terminated

Question 36

What are letters of administration?

Answer 36

Letters of administration give the administrator authority to act for the decedent’s estate and permit the administrator to transfer stock, realty, bank accounts, etc. Letters of administration can be considered power of attorney to act for the intestate estate

Question 37

Who receives letters of administration

Answer 37

Letters of administration “shall” be issued to those persons who are entitled to inherit

Question 38

When is an executor appointed, and by who?

Answer 38

Whenever a decedent dies with a will, letters of probate are issue by the surrogate to the person named as executor in the decedent’s will

Question 39

What are the duties of a fiduciary related to wills, trusts and estates?

Answer 39

Fiduciaries must carry out their duties with “utmost good faith.”

Question 40

What are letters of probate?

Answer 40

Letters of probate give the executor authority to act for the testator’s estate and permit the executor to transfer assets into the executor’s name from the deceased. Letters of probate can be considered power of attorney to act for the probate estate

Question 41

What are fiduciaries under the EPTL and SCPA?

Answer 41

Administrators, executors, and trustees

Question 42

Who are ineligible fiduciary parties under the SCPA Section 707

Answer 42

1- Infants
2- Mental incompetents
3- Non-domicile aliens, except if, in the court’s discretion, when serving as a co-fiduciary with a NY resident
4- Felons; and
5- Persons who lack qualification because of substance abuse or lack of understanding or who are otherwise unfit; unable to read or write english

Question 43

what is the scope of the surrogate’s court subject matter jurisdiction

Answer 43

The surrogates court has subject matter jurisdiction over the “affairs” of decedents, “but has no jurisdiction over disputes unrelated tot he administration of an estate that involve living parties

Question 44

The right to die in NY

Answer 44

Every adult of sound mind has a right to determine what shall be done with his or her own body and cannot be subjected to medical treatment without consent

Question 45

Under the rules of intestacy if there is only a surviving parent, and the decedent has no issue

Answer 45

The surviving spouse receives the entire estate

Question 46

Under the statutory framework of EPTL 4-1.1(a)(1) and 5-1.1 A (a)(2) a surviving spouse is guaranteed

Answer 46

The first $50,000 of the decedents estate, whether the decedent dies with or without a will, but will split the remaining intestate estate with the surviving issue

Question 47

When is a parent disqualified from benefiting through the intestate distribution of a deceased child’s estate

Answer 47

If the parent failed to support the child or abandoned the child

Question 48

NY’s definition of Death includes

Answer 48

The irreversible cessation of all functions of the entire brain

Question 49

Proper execution of a health care proxy

Answer 49

must be signed and dated by the principal in the presence of two witnesses. the person named as the agent cannot be one of the witnesses

Question 50

A health care proxy cannot authorize

Answer 50

the withholding of nutrition and hydration if the patient’s wishes “are not reasonably known and cannot with reasonable diligence be ascertained

Question 51

The proxy agent’s decisions are required to use

Answer 51

Reasonable diligence to ascertain the principal’s wishes and to make decisions in accordance with those wishes. Consideration of the principal’s religious and moral beliefs to the extent those beliefs are reasonably known or the principal’s best interest

Question 52

A living will determines

Answer 52

how an incapacitated person is to be medically treated during the period of incapacity

Question 53

The legislature’s intent under intestacy statutes

Answer 53

provides default rules for distribution in the absence of a recognized expression of the decedent’s intent. The legislature scheme favors surviving spouses and children of the decedent to inherit

Question 54

If an intestate decedent dies with both surviving children or issue, the surviving spouse is entitled to

Answer 54

The first $50,000 of the decedent’s intestate estate, but will split the remaining intestate estate with the surviving children–one half of the intestate balance to the surviving spouse, one half to the remaining issue

Question 55

What does “net estate” mean?

Answer 55

It means the remaining part of the decedent’s estate less administrative costs, funeral costs, legal fees, and taxes, which are all deducted before the estate is paid out to the legatees or distrubutees

Question 56

What is a will?

Answer 56

A will is an instrument that directs the disposition of one’s property upon death

Question 57

who can make a will?

Answer 57

A will can only be made by an adult, someone who is over the age of 18. Anyone who dies under the age of 18, dies intestate

Question 58

What is the effect of a person (related to wild) who dies under the age of 18

Answer 58

The minor dies intestate and minor’s estate passes to the minor’s parents

Question 59

what are the requirements of a valid will?

Answer 59

SWEPT
1- Must be in writing
2- Signed by the testator at the end
3- Witnessed by two disinterested witnesses
4- The testator must “publish” and make known to the witnesses that it is the testator’s will being executed and witnessed
5- The witnesses’ know they are signing a will

Question 60

What is dying intestate mean?

Answer 60

it means a decedent did not have a will and therefore, in NY a person that dies intestate, has his/her estate pass “through the intestacy” laws of NY and subject to the the NYS legislatures statutes under the EPTL

Question 61

What are the reasons for dying intestate

Answer 61

If a decedent does not execute a will. If a will is subsequently: Destroyed, Revoked, Deemed in valid for lack of execution, duress/fraud, or lack of mental capacity to execute a will

Question 62

EPTL 4-1.1

Answer 62

sets forth the statutory scheme for distribution property through intestacy. The rules of intestacy are intended to distribute the estate absence of an expression of intent from the deceased, in a manner in which the legislature expects the average testator would deem appropriate

Question 63

When is an administrator appointed and by who?

Answer 63

An administrator is appointed whenever a decedent dies intestate. The administrator is appointed by the surrogates court

Question 64

If a person is unable to communicate his desires due to incapacity, dementia, unconscious, and has not left any written instructions in a living will, the following people, listed in order of priority, can make the medical decision

Answer 64

1- court appointed guardian
2- a spouse
3- a domestic partner
4- an adult child
5- a parent
6- a sibling 
7- a close friend; or 
8- if non of the above, a physician can be the decision maker

Question 65

Any intestate property passing to the decedent’s issue or siblings passes

Answer 65

by “representation,” if all classes of members are alive, then they equally divide the intestate estate. If however, some members of the class have predeceased the decedent leaving issue who survive the decedent, such issue will share the predeceased distrubutee’s piece of the intestate estate by representation

Question 66

Anything passing intestacy to great-grandchildren or grandparents (first cousins once removed) shall pass

Answer 66

per capita, and split evenly among the surviving class and the deceased members of the first cousins does not pass to the issue of the deceases class members, being the first cousins once removed

Question 67

A valid will must be SWEPT

Answer 67

SIGNED by an adult testator
in WRITING 
Signed at the END by the Testator
PUBLISHED 
TWO witnesses (who do not have to be adults) must sign, in the testator's presence within 30 days of each other

Question 68

DAMN CAR LAW can alter an existing will

Answer 68

DIVORCE 
AFTER BORN children
MARRIAGE of the testator
NO CONTEST CLAUSE Breach
CY pres of charitable bequests
ADVANCEMENT of a bequest
RENUNCIATION by a beneficiary
LAPSED legacies ( NY has a Anti-Lapse Statute)
ADEMPTION or abatement 
WRONGFULLY killing the testator

Question 69

If you can BRA2GIT J.P. you will increase your right of election, under Elective Share for a spouse

Answer 69

Jointly held US savings BONDS
50% of decedent’s RETIREMENT plan
Shareholder AGREEMENTS entered into after the marriage that restrict sale or testamentary disposition of testator’s closely-held corporate stock
ANNUITY payments surviving decedent’s death
GIFTS causa mortis
INTER VIVOS gifts, even to charity, exceeding $14,000 if made within the one year period to the testator’s death (absent written waiver by other spouse)
Pre-or post-marriage TOTTEN trust bank accounts
Post-Marriage JOINTLY-held bank accounts, stock brokerage accounts, or jointly-held real property or personal property, but only to the extent that consideration was furnished by decedent
PAY on Death Securities

Question 70

A beneficiary that uses I-DROPS is deemed to predecease the testator

Answer 70

INTERROREM clause breach
DADS decree
RENOUNCES
Death within ONE HUNDRED and 20 hours from the testator's death 
PREDECEASES the testator
SLAYS the testator

Question 71

ALIS can use the anti-lapse statute

Answer 71

ANTI-LAPSE

ISSUE or SIBLING of testator

Question 72

A DADS judgment are

Answer 72

DIVORCE
ANNULMENT
DISSOLUTION or SEPARATION judgment

Question 73

A DADS judgment impliedly revokes the survivorship interest of the former spouse named in TRIP JAW

Answer 73

a TOTTEN trust
a REVOCABLE lifetime trust
a life INSURANCE policy
a PENSION plan (if not inconsistent with federal pension plan law)
a JOINTLY held real property or joint bank account
a power of ATTORNEY, or
a WILL

Question 74

A killer is permitted to acquire property from the victim’s estate if the killing was in SIN

Answer 74

done in SELF-DEFENSE
the killer was INSANE at the time of the homicide
the homicide was accidental (NEGLIGENT homicide)

Question 75

Where the decedent died intestate was survived by: Surviving Spouse, and no issue

Answer 75

Then the surviving spouse gets 100%

Question 76

Where the decedent died intestate was survived by Surviving spouse and issue

Answer 76

The surviving spouse gets $50,000 plus 1/2 of the balance and the issue gets other 1/2 by representations

Question 77

Where the decedent died intestate was survived by Issue but no surviving spouse

Answer 77

Issue gets 100% by representation

Question 78

Where the decedent died intestate was survived by no spouse, no issue

Answer 78

Then decedent’s parents and siblings are alive, then parents take 100%

Question 79

Where the decedent died intestate was survived by no spouse, no issue, no parents but siblings are alive

Answer 79

Then siblings (or issue of predeceased siblings [nephews and nieces] under anti-lapse] take 100% by representation

Question 80

Where the decedent died intestate was survived by no spouse, no issue, no parents, no siblings, no issue of siblings

Answer 80

The net intestate estate is divided into two equal parts with one part passing to the decedent’s maternal grandparent’s side and one-part to the paternal grandparent’s side of the family [in search of living heirs (grandparents, aunts, uncles, 1st cousins, but only as distant as children of first cousins)]

Question 81

If there are no surviving heirs within the degree of kinship to pass through intestacy laws then the intestate estate

Answer 81

escheats to the State of New York

Question 82

Abatement: EPTL 13-1.3: Interests in the Testator’s estate are extinguished by abatement in the following order:

Answer 82

1. the intestate distributees forfeit first; then
2. The residuary legatees, “all the rest, residue and remainder I leave to X and Y”; then
3. General legacies (sums of money); then
4. Specific and demonstrative legacies; and then
5. The last to abate is a disposition to a surviving spouse regardless of whether it is a specific, demonstrative or a general legacy

Question 83

Exempt Property EPTL 5-3.1 means that

Answer 83

Exempt property passes outside of the estate and is not considered part of the estate for intestacy or right of election purposes. Exempt property cannot be claimed by the decedent’s judgment creditors.

Question 84

Exempt property passes directly to:

Answer 84

A surviving spouse, or, if there is no surviving spouse, to children under the age of 21.

Question 85

Which property is not an asset of the estate but vests in the surviving spouse or children

Answer 85

1. All housekeeping items, clothing of the decedent, computers, musical instruments, electronic devices, clothing, furniture, appliances, and jewelry unless not to exceed $20,000. This does not include items used exclusively for business purposes.
2. Videotapes, discs, software, religious items, pictures, and books not to exceed $2,500, but only after payment of funeral bills
3. Cash or other personal property not to exceed $25,000 net value; and
4. Domestic and farm animals, feed for 60 days, farm machinery, a tractor, and lawn tractor not to exceed $20,000

Question 86

If the automobile’s value exceeds $25,000, the spouse can

Answer 86

take the care and reimburse the estate for the value exceeding $25,000. The spouse can take the value of the car (not to exceed $25,000) in lieu of the car itself.

Question 87

If a testator made a specific bequest of a car to someone else other than the spouse, the spouse can

Answer 87

Enforce the spousal exemption and defeat the bequest, but if the car’s value exceeded $25,000, then the excess amount paid back to the estate by the spouse goes to the specific legatee

Question 88

Exempt property (which can total up to $92,500), together with the right of election or intestate right guarantees

Answer 88

the surviving spouse approximately $142,500.

Question 89

How can the surviving spouse’s right to exempt property can be specifically waived

Answer 89

It can be waived in a prenuptial agreement

Question 90

The term “issue,” is a term of art and it means

Answer 90

Lineal descendants of the person’s blood line.

Question 91

You always determine what type of estate for distribution

Answer 91

The “NET” estate

Question 92

When a residuary clause is inserted in the testator’s will (all the rest, residue, and remainder of my estate),

Answer 92

it indicates that the testator’s strong intent that he/she does not want his/her property to pass under the law of intestacy

Question 93

When a residuary clause names at least two parties (X and Y), and one of the parties predeceases (Y dies before the testator), then

Answer 93

Then Y’s 50% of the residuary estate does not pass through the intestacy laws, but is given to X, and therefore X has 100% ownership of the residuary share/estate

Question 94

What is a holographic will

Answer 94

Wills written in the testator’s handwriting and only signed by the testator

Question 95

Generally, NY does not allow holographic wills, except

Answer 95

for individuals that are serving in the military, people accompanying the service men in the military (news reports, red cross) but not officially in the military, and individuals on the evening of departure to war

Question 96

What is the time period a holographic will is valid for

Answer 96

1- a holographic will is valid for up to one year after the person is discharged from the military, or if a new will is created. However, if the person becomes incompetent prior to the one year statute, then the holographic will remains valid.

Question 97

When answering questions about the validity of a trust, your answer should include what language

Answer 97

The general rule in New York for a valid will is signed by an adult testator, the will is in writing, signed at the end of the will by the testator, the testator published to the two disinterested witnesses that it is the will of the testator being signed, and it is signed in the presence of two disinterested witnesses in front of the testator. The EXCEPTION in NY is holographic wills (explain the holographic means), or a will that is properly executed in another state and then the person is in NY when they die will be valid

Question 98

Nuncupative wills

Answer 98

a.k.a. foxhole wills, are oral wills that are immediately written down, and are valid in certain jurisdictions, and are part of the exception in NY

Question 99

Any provision appearing under the testator’s signature in the will (other then the witnesses signature and attestation clause(

Answer 99

is ignored by the surrogates court even though the writing was on the will, when the will was properly executed. The surrogate court will not accept anything appearing after the signature of the testator

Question 100

Any amendment (not a codicil) after the will was executed or whether inserted above or below the signature

Answer 100

is invalid and will not be accepted by the surrogates court

Question 101

When are the requirements for a third person to sign for the testator

Answer 101

A third person can for the testator but it MUST be (1) at the testator’s direction and (2) in the presence of the testator. Therefore, in order to have a properly executed will, in which someone else signs for the testator, there must be four signatures: (1) the person signing the testator’s name; (2) the person who signed the testator’s name must sign their own name; (3) Disinterested Witness 1; and (4) Disinterested Witness 2

Question 102

Witnesses do not have to sign the will at the same time, but it must be signed by both witnesses

Answer 102

within 30 days of each witness, or not later than 30 days after the first witness signs, the second witness must sign

Question 103

What are the two things that can follow the testator’s signature on the will

Answer 103

1- Attestation clause

2- Witnesses signature

Question 104

A codicil does what to a will

Answer 104

It either changes part of the will or is an addition to the will, but it also republishes the will from that point. You must execute a codicil in the same formality as a will

Question 105

What are the requirements of witness that attested to a will

Answer 105

1- the witness need to be competent
2- it does not have to be an adult, and
3- a Blind person cannot witness a will

Question 106

RULE: How is an “interested witness” defined

Answer 106

An interested witness is a beneficiary named in the testator’s will. At the time of the will’s execution the parties need to be disinterested at the moment of the will’s execution, which means the witnesses are not receiving any bequest from the will

Question 107

What is the effect of an interested witness’s bequest in a will

Answer 107

If the interested witness is a “necessary will witness” then the will is valid and the interested witness forfeits the bequest. This prevents fraud. Therefore, if there are two other non-interested witnesses, the third witness (who is an interested party), super numerary, will not lose the bequest

Question 108

RULE: The exception to the general rule when a will that was executed, and one of the interested parties is a necessary witness, and the interested witness will qualify as an “intestate distributee” (a relative who will benefit if there is no will, that interested party is entitled

Answer 108

or permitted to take the bequest or intestate share, “whichever amount is less.”

Question 109

RULE: A necessary witness is not disqualified from

Answer 109

1- taking under a subsequent codicil, naming the witness as a beneficiary, or 2- the interested witness can act as a trustee or executor named in the testator’s will, since the fees paid to a trustee or executor are considered compensation for services earned and not a testamentary bequest

Question 110

What are the proper procedures required for an attorney (or someone in the attorney’s firm) who drafts a will for the testator, and the testator wants the attorney to be the executor or trustee

Answer 110

The testator MUST acknowledge in a separate document (not the will), signed by the testator and a disinterested witness (no one from the attorney’s office can be the disinterested witness), that the testator knows anyone can be an executor, and if the testator uses the attorney as the executor, the attorney will be entitled to two fees, the attorney’s fees and executor’s fees

Question 111

Failure to comply with the drafting attorney’s disclosure requires of being an executor for the testator’s will results in

Answer 111

a 50% reduction in the attorney’s fees as an executor

Question 112

A will’s Incorporation by reference

Answer 112

NY is the minority view, and does not recognize incorporation by reference, which means an “unattested document” does not become part of the will even though the will references the unattested document

Question 113

A will’s Incorporation by reference can ONLY occur when

Answer 113

when the will references an “attested document” (such as another will), i.e., is a husband’s will referencing his wife’s duly executed will

Question 114

What is a pour-over trust

Answer 114

A pour-over trust is a trust that will have assets from a testator’s will “pour-over” into the trust. However, the trust MUST be signed and acknowledged in the same manner to record a deed at the time the will was executed.

Question 115

What violates or invalidates a bequest to a pour-over trust

Answer 115

A trust that is not duly executed, or not in existence at the time the will is properly executed. Therefore, if the trust is established after the will, the pour-over provisions in the will, fail and the legacy goes to the residuary beneficiaries.

Question 116

A codicil CANNOT

Answer 116

revoke a will

Question 117

The execution of a codicil may effect

Answer 117

1- Advancements
2- Rights of After Born Children
3- A divorced Surviving Spouse’s rights

Because the codicil republishes the will as of the date that the codicil is executed. therefore, it republishes the will as of the date the codicil is executed

Question 118

A will and a codicil are regarded as

Answer 118

a single instrument for the purpose of determining the testator’s intent

Question 119

what are the ways that a will can be revoked

Answer 119

A will can be revoked by:
1- Another will, which indicates the revocation of the prior will, or the two wills are so inconsistent that both cannot be probated, and impossible to administer both
2- Destroying the will, cutting, tearing, obliterating

Question 120

What effect does properly revoking a will have on a codicil

Answer 120

A revocation of a will is an implied revocation of all codicils

Question 121

A revocation of a codicil only

Answer 121

revokes the codicil. keep in mind that if the codicil withdrew a legacy, then the withdrawing of the codicil does not “reinstate” the withdrawn legacy

Question 122

Who can revoke a will?

Answer 122

1- the testator

2- A 3rd person at the testator’s request, and in the testator’s presence, heard by two disinterested witnesses

Question 123

What is the presumption when the testator dies, and there is no will found

Answer 123

That the testator revoke the will, however, this is a rebuttal presumption.

Question 124

Revocation of a will MUST be a

Answer 124

complete revocation, and therefore, there is no “partial” revocation of a will or clause by a physical act, such as cutting, the paragraph out, crossing the paragraph out. Partial alteration can only be done by a duly executed Codicil

Question 125

What is an implied revocation of a will

Answer 125

when a subsequent will is duly executed, and it is so inconsistent with the prior will, that there is no way to execute both wills, and the subsequent will “impliedly” revoked the first will because of the inconsistency

Question 126

What is an elective share?

Answer 126

NY Law says you cannot disinherit your surviving spouse, so if the testator excludes his wife, or attempts to disinherit her, then the spouse can “elect” to take a 1/3 “share” of the testator’s estate

Question 127

When is an elective share not permitted?

Answer 127

When a spouse specifically waives the right of election, under the elective share rights, in a pre-nuptial agreement or separation agreement. NY COA requires that there is bright-line rule, so the waiver must be in writing (a formal acknowledgment)

Question 128

How do you determine the value of a surviving spouses elective share of a decedent’s estate

Answer 128

The elective share is increased by any testamentary substitutes

Question 129

What is a gift causa mortis

Answer 129

It is a contingent gift based on the person dying, so if the person does not die, then the gift is revoked

Question 130

what is the amount that can be gifted, and what amount will be brought back to the estate for elective share purposes

Answer 130

A gift can be for up $14,000, anything above that will be credited back to the estate for the purpose of elective share, unless the surviving spouse waives any right to the amount above $14000

Question 131

What is a totten trust

Answer 131

it is a bank account paid on death to another party

Question 132

How can you revoke a totten trust?

Answer 132

1- Withdraw the money from the bank account that is left to be paid on the testator’s death
2- Bequest in a will that specifically names the bank, amount and another legatee
3-Change the beneficiary at the bank

Question 133

RULE: property that is jointly held with a surviving spouse

Answer 133

Gives rise to a conclusive irrebuttable presumption that one half of the consideration was furnished by the decedent, thus only 1/2 of that jointly held asset is brought back to decedent’s estate for the surviving spouse’s elective share

Question 134

Life insurance policies have what effect on testamentary substitutes

Answer 134

Life insurance policies on the testator’s life are not testamentary substitutes, and not credited back to the estate for elective share rights

Question 135

What is the formula for determining the Elective Share Net amount?

Answer 135

Value of the net probate estate

+ Value of the testamentary substitutes (which includes all the substitutes, including to the spouse)

• The total value of the testamentary substitutes, bequests that the spouse received

= the net amount owed to either the estate or the surviving spouse

Question 136

RULE: How does the court determine what the legatees are obligated to pay to the elective share amount

Answer 136

To determine how much each beneficiary must contribute to the surviving spouses elective share the surrogates court will require each beneficiary to contribute “ratably” (proportionately)

Question 137

RULE: When must a surviving spouse exercise her right of election, and how

Answer 137

A surviving spouse must exercise her right of election by serving the estate by filing the election with the surrogates court within six months from when the estate’s executor / administrator is appointed but not later then 2 years from the decedent’s death. The surrogates court has discretion to extend this time period, but no later than 1 year from when the estate’s representative was appointed

Question 138

How does a divorce, allulment, dissolution, separation agreements of a marriage effect the testator’s estate

Answer 138

Divorce is when the marriage breaks down irretrievably and the spouse is no longer entitled to any part of the spouses estate either intestate or testamentary

Question 139

RULE: What is the rule applied to third party institutions that pay benefits to surviving spouse

Answer 139

A third party is not liable for paying benefits to a surviving spouse, if the testator either divorced, separated or dissolved the marriage, but did not give the third party written notice, and properly served notice under CPLR 308, the 3rd party is not held liable for paying out the benefits. The estate has to proceed against the party that received the benefits

Question 140

Lapsed Legacies RULE

Answer 140

is a Bequest in a will that fails (Lapses) if a named beneficiary dies before the testator. The general rule of lapse legacies, is that the beneficiary dies before the testato

Question 141

A bequest in a will “lapses” if the named beneficiary does any of the following:

Answer 141

1- violates the “interroram clause”
2- the bequest was “renounced”
3- The beneficiary did not survive the testator by one-hundred twenty hours
4- The Beneficiary predeceased the testator
5- The slayer rule, the beneficiary does not benefit from his wrong doing

Question 142

What is an interroram clause

Answer 142

It states that if anyone who receives a testamentary gift contests the validity of the will for fraud, capacity, execution, and loses the challenge will forfeit the testamentary gift

Question 143

What is the “exception” to the Anti-Lapse legacies, in the anti-lapse statute.

Answer 143

The anti-lapse statute involves ONLY the bequests made to the testator’s issue or siblings, and these bequests do not lapse, if the siblings or issue of the testator died after the execution of the will, but before the testator. Therefore, the legacy to the sibling or issue “drops down” to the predeceased beneficiaries estate

Question 144

When writing the essay portion of a trust and estate question on the NY Bar, the answer should always include

Answer 144

The general rule in New York, under the EPTL, is that …

Question 145

When writing the essay portion of a trust and estate question on the NJ Bar, the answer should always include

Answer 145

The general rule under the Uniform Probate Code, is that

Question 146

What is the general rule when a gift lapses

Answer 146

The general rule in New York, under the EPTL, is that if a beneficiary predeceases the testator, the gift to that beneficiary lapses and falls into the residuary estate

Question 147

What is the exception in NY to the general rule when a gift lapses?

Answer 147

An exception is found in New York’s anti-lapse statute, which provides that if the beneficiary is a sister, brother, or issue (descendent) of the testator and the beneficiary leaves issue, then the gift does not lapse but will be shared by the beneficiary’s issue per capita at each generation

Question 148

What is the method to renounce a testamentary gift?

Answer 148

The rule in New York, under the EPTL, is that a beneficiary who validly renounces, in writing, his/her interest in the testator’s estate will be treated as though he/she predeceased the testator for the purpose of executing the will. The general rule in New York, under EPTL, is that if a beneficiary predeceases the testator, the gift to the beneficiary lapses and falls into the residuary estate. However, an exception is found in New York’s anti-lapse statute, which provides that if the beneficiary is a sister, brother, or issue (descendent) of the testator and the beneficiary leaves issue, then the gift does not lapse but will be shared by the beneficiary’s issue per capita at each generation

Question 149

What happens to the disposition of personal property that was bequest to a beneficiary who died simultaneously with the testator

Answer 149

NY has adopted the Uniform Simultaneous Death Act (USDA) that applies when a will does not contain a provision if the testator and beneficiary have a simultaneously. Under the USDA, if both parties die within 120 hours of each other than both parties are treated as predeceasing in the other’s will. The anti-lapse statute protects a bequest when the intended beneficiary who died simultaneously

Question 150

Can a testator bequest the residue of his/her estate to a trust in his/her will

Answer 150

The rule in New York, under the EPTL, is that reference by incorporation is impermissible documents referred to in the will must be executed with the same formalities required of a will in order to be valid. An exception exists for a pourover gift made in a will to a trust.

Question 151

What are the requirements for a pour-over trust to be valid in a will?

Answer 151

The requirements of a pour-over trust are that the trust was validly executed, the trust was revocable, and the trust existed before (or was created simultaneously with) the will

Question 152

What is the rule in NY when a will fails to distribute all the property?

Answer 152

The rule in New York, under the EPTL, is that when a will fails to properly distribute all property, there is a partial intestacy. Any property not accounted for in the will (including the residuary estate) will be governed by the intestacy statutes in New York under EPTL 4-1.1.

Question 153

Ademption

Answer 153

a specific disposition is a bequest of a specific identified item of the testator’s property, and the specific bequest is no longer available because it was lost, destroyed, sold, or given away. Ademption only applies to a specific legacy

Question 154

What is the exception to the rule of Ademption

Answer 154

To the extent the sale proceeds can be traced and are still in existence, then the proceeds are paid to the specific legatee, when the testator is incompetent and the guardian sold the bequest to fund or otherwise use the funds

Question 155

What are after born children?

Answer 155

After born children, include marital children, non-marital children or adopted children who are born/adopted after the testator executed the will

Question 156

What is the general rule for an after born child’s inheritance rights?

Answer 156

if the testator’s children are born after the testator’s will was executed, and the testator does not have any other children, the after born child is entitled to an intestate share of the estate

Question 157

If the testator had children at the time of the will’s execution, and provided for those children, then had an after born child, what are the after born child’s inheritance rights

Answer 157

The after born child will share in the other children’s bequest “ratably”

Question 158

If the testator had children at the time of the will’s execution, and DID NOT provided for those children, then had an after born child, what are the after born child’s inheritance rights

Answer 158

Any after born child is not entitle to share in the testator’s estate

Question 159

Non-marital children’s rights

Answer 159

1- is entitled to inherit by intestacy through a testamentary bequest
2-Anti-lapse statute applies
3-Can sue for a parent’s wrongful death
4- Biological father can be proven through a paternity test; father filed a signed acknowledgement; paternity is established by “clear and convincing evidence” that is the “father openly and notoriously acknowledged the child as his own.

Question 160

If a codicil is written after both a will was executed, and then a child was born subsequently, what happens to the status of the after-born child

Answer 160

A codicil will or can change the status of an after born child, and the child is no longer considered an after-born child, and the after-born child is not entitled to the intestate share because the codicil is “providing” for the after-born child

Question 161

What is the rule for treating marital children and non-marital children

Answer 161

Non-marital children are treated exactly the same as marital children, thus whenever an instrument refers to “issue, children, grandchildren, decedents, heirs” the court will construe the terms to include adopted and non-marital children

Question 162

When a question is posed about the effect of the will being duly executed and subsequently a beneficiary dies prior to or at the time of the testator’s death, the rule paragraph should state the following:

Answer 162

Under the general rule under the EPTL is that the pre-deceased legatee’s estate is not entitled to receive a bequest from the testator. However, the exception to the general rule, is NY’s anti-lapse statute. The anti-lapse statute allows a predeceased family member (siblings and their issue) gift not to lapse, but pass to the relatives issue. Here, the bequest does not lapse. Therefore, it will pass to the testator’s siblings issue.

Always check the anti-lapse statute when you an fact pattern has the testator’s siblings dying before the testator

Question 163

How is a renunciation treated?

Answer 163

Under the EPTL, a renunciation is treated as if the person (legatee or heir) predeceased the testator, which allows the gift to pass to pass back to the estate and then to the next legatee who is lawfully entitle under the will or statutes.

When the anti-lapse occurs and the bequest “falls to the next generation, the representation or share is passed.”

Question 164

When you have a renunciation in a fact pattern by a sibling or sibling’s issue, you have to consider what other rule?

Answer 164

Under the EPTL, you want to check NY’s anti-lapse statute

Question 165

What is the procedure to renunciate?

Answer 165

1- The renunciation must be made in writing;
2- The renunciation must occur no later than 9 months after the testator’s gift
3- The renunciation must be in writing
4- The renunciation must be filed with the Surrogates Court

Question 166

What is the rule of law in NY on how a share will pass from one generation to the next under the anti-lapse statute, or if the testator does not include the intent on how to pass to the next generation

Answer 166

Under the EPTL, in NY the share will pass by either representations, per capita, or NY style per stirpes

Question 167

What is the requirement for a legatee or heir to receive a bequest in NY

Answer 167

The general rule in NY under the EPTL, the legatee or heir must survive the testator by 120 hours. However, the exception to the general rule in NY is that if the estate will escheat to the State, the 120 hour survival requirement will not be applied.

Question 168

The anti-lapse statute does not apply to what situation and legatees?

Answer 168

In NY under the EPTL, the law does not apply the anti-lapse to bequests given to friends and parties that are not “siblings or issue of siblings.” Therefore, a friends bequest would lapse if the friend died with the testator or prior to the testator, but subsequently after the will was executed.

Question 169

How do you determine if a gift of residue granted in a will to a trust is valid? In other words, is the trust a valid “pour-over” trust?

Answer 169

Under the EPTL, the court has to first determine if the will was properly executed. A will in NY must be 1- signed by the testator at the end of the will, 2- it must witnessed by two disinterested parties, 3- it must be known to the witnesses, that they the are signing the testator’s will, so the testator must publish the will, 4- and must be in writing.

The second step is to determine if the trust under the EPTL was properly executed. In NY a trust must be executed in the same manner as a will and the next step is the trust must be funded (res/property put into the trust).

Question 170

What is the rule of law in NY regarding an income trust?

Answer 170

Under the EPTL an income trust will only pay out the income to the income beneficiaries. However, the exception holds that in some instances, the trustee can invade the principal of the trust. One of the exceptions is for “necessities” of the income beneficiaries.

Question 171

What is the doctrine of Cy Pres?

Answer 171

Under the EPTL, Cy Pres addresses bequests to charities in a testator’s will. Cy Pres, generally, allows a court the discretion to allow the trust for the charity to be paid to similar or like charities, if the testator’s choice of charity is no longer in existence. Trusts for charities can run in perpetuity.

Question 172

How does the surrogates court, generally, interpret the meaning and purpose of a residuary clause

Answer 172

The residuary clause implies that the testator DID NOT want his estate to pass through the laws of intestacy

Question 173

Will as an Ancient Document means that

Answer 173

A will may be admitted into evidence without proof of its proper execution if the instrument is over 30 years old, found in its natural place of custody (e.g., among the decedent’s papers or in her attorney’s safe), and unsuspicious in appearance.

An ancient will can be admitted to probate without proof of the witnesses’ handwriting

Question 174

Normally, if an attesting witness has predeceased the testator, what steps will the court generally take.

Answer 174

The Surrogates Court, normally, where the attesting witnesses have predeceased the testator, their signatures must be proven through evidence of their handwriting.

Question 175

The Testator’s Publication of the WIll must include

Answer 175

Uncontroverted proof that the attorney-draftsman announced to the other subscribing witnesses, in decedent’s presence, that the decedent was executing a will is sufficient to satisfy the requirement of an express declaration.

Under case law, in a limited number of exceptions, although a decedent did not expressly request that either witness sign the will, such a request may be inferred from her conduct and from circumstances surrounding execution of the will. Those circumstances are limited, which include the request made by the attorney-draftsman, in the presence of the decedent and with her silent permission and approval, that the witnesses sign the will.

Question 176

Inconsistent acts by the testator has what effect on a will?

Answer 176

Any conveyance, settlement, or other act of the testator wholly inconsistent with a testamentary disposition, revokes that disposition

Question 177

What is the Doctrine of Dependent Relative Revocation?

Answer 177

The Doctrine of Relative Revocation, also known as conditional revocation, is an English rule followed in the U.S. and in New York, and it is primarily used to avoid intestacy where intestacy was not the Testator’s intent.

The doctrine frequently arises where the testator marks-up an existing valid will, indicating an intent to draw a new will, but the new will either is not drawn or is not properly executed. In such a case, the court may revert to the original will to avoid intestacy

Question 178

Mere notations on a will have what effect on the will?

Answer 178

Mere notations on a will that do not obliterate or cancel the will are sufficient to destroy or revoke the will.

Question 179

Where a testator removes one page and, inserts a new page, replacing the page of the will has what effect, and how does the court handle the page replacement

Answer 179

The Surrogates Court will not recognize the change because (1) there can be no partial revocations of a will in NY, other than a document executed with the formalities of a will; and (2) Dependent relative revocation, where a will is altered in whole or part, the attempt to revoke Will #1 is dependent on the validity of Will #2.

Question 180

Incorporation by reference in NY

Answer 180

Is not recognized, thus an unattested paper of a testamentary nature cannot be take as part of the will even though referred to expressly by the will. The exception in NY is that the incorporation by reference is to an “attested” document, such as a trust or spouse’s duly executed will.

Question 181

What is the purpose of probate?

Answer 181

the purpose of a probate proceeding is to settle every possible pecuniary claim so that title to the assets of the state passes to the rightful beneficiaries free and clear of adverse claims.

Question 182

Under NY Law when must the Attorney General be contacted on matters related to probate matters?

Answer 182

The New York Attorney General is required to be contacted (1) if there are no known distributees (escheat), and (2) if there are charitable beneficiaries.

Question 183

The Right of Election in New York, generally holds that

Answer 183

In New York, a surviving spouse cannot be disinherited. A surviving spouse is entitled to at least $50,000 or one-third of the decedent spouse’s net estate, whichever amount is greater. EPTL 5-1.1

Question 184

The elective share entitles the spouse to

Answer 184

seek an elective share of the “net estate,” including all property wherever situated passing outside of the will by reason of the spouse’s death (“testamentary substitutes”).

Question 185

Where the surviving spouse elects against the estate, in other words, the surviving spouse enforces his/her rights under the elective share statute

Answer 185

The spouse receives the 1/3rd share outright and all legatees including those receiving testamentary substitutes, contribute ratably, i.e., proportionately, to the elective share.

Question 186

What is the statute of limitations in regard to a spouse taking under his/her right of elective share?

Answer 186

A surviving souse has six months from the appointment of an executor by the surrogate to exercise his or her right of election, but not later than two years after the decedent’s death. The Surrogate has discretion to excuse a late filing, but if more than twelve months have elapsed since the issuance of letters or more than two years have passed since the decedent’s death.

Question 187

Waiver of right under EPTL 5.1-1-A(e)(2)

Answer 187

A spouse, prior to or during the marriage can waive his or her own right of election or can drastically limit the right of election (e.g., prenuptial, nuptial, or separation agreement), but the agreement’s signatures must be acknowledged in the same formal way as required for recording a deed.

Question 188

What is the “implied waiver” related to spouses under the EPTL

Answer 188

A surviving spouse loses the right to elect against the deceased spouse’s estate if the surviving spouse abandoned the other spouse and the abandonment continued until the abandoned spouses death. EPTL 5-1.2(a)(5). Also, if the surviving souse had the duty to support the other spouse and he or she failed or refused despite having the ability to do so, then the right of election as well as the right to intestacy is waived by law. EPTL 5-1.2(a)(6).

Question 189

Creditor’s rights to testamentary substitutes

Answer 189

Creditors have access to non-probate assets if the decedent maintained the power to dispose of those assets during his or her lifetime. Life insurance proceeds, however, are protected from creditors of the decedent’s estate by Insurance Law Section 3212(b).

Question 190

Property left in an instrument to “issue,” such issue take by

Answer 190

“Representation. EPTL 2-1.2. Distribution passes “by representation” in the following way: members of the nearest generation each receive one share, and the remaining shares of predeceased members will be combined among the issue in the next generation.

Question 191

For a renunciation to be effective:

Answer 191

1. The renunciation must be in a signed and acknowledged writing filed with the Surrogate’s Court within nine months from the date of the death, or to renounce a future interest, nine months from when a future interest created in the will becomes a present possessory interest (after the life estate ends)
2. The renouncing party must not have accepted the property or any of its benefits;
3. The renunciation must be accompanied by an affidavit that the renouncing party has not and will not receive any consideration from a person whose interest will be accelerated by the renunciation, unless such payment has been authorized by the Surrogate;
4. Where the interest passes to an infant, the disclaimer can be made within nine months after the infant reaches the age twenty-one. In order for a guardian to gain the Surrogate’s approval to renounce an infant’s interest, the guardian must be able to show that renunciation will somehow benefit the infant, otherwise the infant’s renunciation will not be approved.

Question 192

Abatement is…

Answer 192

Abatement is where the altruistic wishes of the testator exceed the size of the testator’s net estate. Abatement means to decrease. It describes how to deal with situation where a testator makes so many bequests that they exceed the total amount available for distribution

Question 193

When a testator’s bequests exceed the assets of the estate, the available funds will be distributed in the following manner:

Answer 193

1. Funeral expenses and administrative fees (e.g., lawyer’s and executor’s fees) of the estate
2. Dispositions to a surviving spouses; then
3. Specific legacies (bequests of certain items of the testator’s property); then
4. Demonstrative legacies. These are bequests of funds or stock payable out of a particular fund or security, “140,000 out of the sale of my IBM stock.”
5. General dispositions (sums of money); then
6. Residuary legacies (“all the rest, residue, and remainder”); then
7. Intestate property (distributive shares not disposed of by will).

Question 194

For purposes of abatement, a demonstrative legacy is treated as a

Answer 194

Specific legacy

Question 195

For purposes of ademption, general legacies and demonstrative legacies

Answer 195

are treated alike

Question 196

Ademption, under the general rule, is

Answer 196

where bequeathed property (e.g., watch, car, or real estate) is transferred or conveyed away prior to the testator’s death (e.g., gift, sale, lost, destroyed, or stolen), then the bequest “adeems” and the legatee takes nothing.

This rule relates only to specific legacies and doe snot apply to general legacies and demonstrative legacies.

Question 197

What are the exceptions to the general rules on ademption?

Answer 197

1. Where the testator, after executing a will, becomes incompetent and his guardian ad litem sells an asset and uses the proceeds to administer the estate, any remaining proceeds from the asset will go to the specific legatee.
2. When property of a specific legatee is damaged or destroyed (including condemnation through eminent domain) prior to the testator’s death and the proceeds of an insurance policy ( or eminent domain award) are “PAID AFTER” the testator’s death, then the proceeds of that insurance policy (or award) shall pass to the specific legatee. Note that if the property is destroyed after the testator’s death, the specific legatee clearly is entitled to the insurance proceeds thereon. If there was no insurance on the property, the specific legatee may have a cause of action against the executor of the estate for negligence in failing to protect and insure the assets of the estate.
3. Where a testator enters an executory contract to sell the property but dies before the contract closes, then, under the doctrine of “Equitable Conversion,” The specific legatee succeeds to the grantor’s legal rights to receive the purchase price of the property when title closes subject to the equitable rights of the buyer for specific performance of the contract. Thus, the legatee will take the net proceeds of the sale in lieu of the specific property bequeathed.

Question 198

Elements of a trust

Answer 198

1. a designated beneficiary;
2. a trustee (who may be the same person as the beneficiary under EPTL section 7-1.1);
3. a designated fund or property (known as the “corpus” or “principal”);
4. an effective actual delivery of that fund or property passing title to the trustee; and
5. a lawful purpose

Question 199

A Totten Trust is

Answer 199

Is when a deposit by one person of his own money in his own name as trustee for another. It does not establish an irrevocable trust during the lifetime of the depositor. It is revocable at will, until the depositor dies or completes the gift in his lifetime. If the depositor predeceases the beneficiary, “an absolute trust was created as to the balance on hand at the death of the depositor.”

Question 200

When are Totten trusts liable for such expenses of the estate?

Answer 200

When an estate is insolvent and there are outstanding debts, judgments, administration and funeral expenses, since a person may not cut off the rights of creditors through non-testamentary transfers when his or her own estate is insolvent

Question 201

When can a Totten trust be defeated?

Answer 201

1. In the depositor’s will, but only by specific direction in which the will describes the specific account as being in trust, and naming the account beneficiary, and financial institution
2. by the depositor closing out the account and withdrawing the funds
3. by writing where the signatures are acknowledged with the same formalities for recording a deed (e.g., a spouse’s separation agreement), which specifically names the account, beneficiary, and financial institution
4. If the beneficiary dies before the grantor

Question 202

Gifts- Joint Bank Account - Presumption of a Gift

Answer 202

When a depositor opens a joint bank account or joint brokerage account, and the signature contains “survivorship” language, there arises a rebuttable presumption, under Banking Law 675, that the person opening such an account intends to make an immediate gift of 50% of each deposit (a “moiety”) to the other person opening such an account, and also, “that the parties intended to create a joint tenancy with rights of survivorship” one party dies, 100% of the money remaining in the account passes to the survivor.

Question 203

Gifts–Required Elements

Answer 203

To prove the existence of a valid inter vivos gift, the donee must establish by clear and convincing evidence making it highly probable that a gift has been made:

1- “Acceptance” of a the gift by the donee, which the law presumes unless the facts clearly demonstrate non-acceptance
2- The donor’s “intent” to make an immediate, present gift; and
3- Effective “delivery” that places that gifted property beyond the donor’s control

Question 204

In Terrorem Clauses

Answer 204

A in terrorem clause is aptly phrases since it is intended to strike terror into the heart of a wills beneficiary if they try to contest the validity of the will. The clause simply provides that if a trust or will beneficiary attempts to contest the will’s validity (e.g., alleging lack of testamentary capacity, improper influence or lack of proper execution of the will) then the beneficiary will forfeit the will’s bequest. The surrogate who finds a breach of this interim clause will treat that beneficiary as immediately predeceasing the testator

Question 205

Rules of Construction

Answer 205

1- In constructing a will, the intention of the testator must be our “absolute guide”;
2- It is always the effort of the court to sustain, if possible, the will of the testator and to give force and effect to that scheme that he has devised for the benefit of those depending upon him
3- that the intent is to be ascertained ‘not from a single word or phrase but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed”
4- The testator is presumed to have intended to dispose of the whole estate by will, and did not intend intestacy as to any part of it
5- The presumption against intestacy is particularly weighty where the subject of the gift is the residuary estate

Question 206

Will challenges are based on

Answer 206

1- Fraud, duress, undue influence; or
2- Improper execution; or
3- Testamentary capacit

Question 207

Testamentary capacity means (informally)

Answer 207

That the testator had (1) a sound mind; (2) knew who the beneficiaries were; (3) understood that they were creating a will; (4) understood the value of his/her assets