Wills Flashcards
Will Formalities
(1) writing
(2) present testamentary intent (understands the act)
(3) Testator signed in joint presence of two witnesses (or testator later acknowledges that that is his signature)
(4) Witnesses understand significance of the act
Presumption of proper execution if supervised by disinterested attorney
Presumption of validity if will contains attestation clause
Testator’s Signature in will
Signature is the end of the will. Language added after signature is invalid.
Formal name is not required.
Testator Capacity
At least 18yo
Of sound mind (determined at time of execution)
Interested Witnesses
Will beneficiaries can serve as a witness.
BUT NY uses “purge theory” = gift to interested witness cannot exceed intestate share. Any excess is void
Compliance with will formalities
Document may be probated if clear and convincing evidence of intent for document to be a will and substantial compliance with formalities
Holographic wills
Only for US serviceman in active duty during time of war or armed conflict, person servicing with armed forces, or mariner at sea.
Nuncupative will
Oral will. Only valid for limited personal property made in contemplation of immediate death by a person who could make a holographic will (servicemen).
Codicil
Alter, amend, or modify a will. Must conform to will formalities.
Will is republished as of the date of a codicil. Can validate an otherwise invalid will.
Foreign wills
admitted to probate if will executed under NY law OR under law of state where it was executed OR where testator was domiciled at the time of death or execution.
Will substitutes
Any non-probate asset distribution. E.g., revocable trusts, pour-over wills, bank accounts and securities registered in beneficiary form, payable-on-death clauses, deeds to take effect or be delivered on death of grantor, Totten trusts, gifts made in contemplation of death
Ways to revoke a will
Testator must possess intent to revoke.
(1) valid subsequent instrument (expressing intent to revoke or implied by inconsistent terms)
(2) Destruction of will with intent to revoke (only entire revocation is permitted)
(3) Operation of law (divorce)
Lost wills
Presumption that testator destroyed the will with intent to revoke it. A proponent must prove the will’s existence by clear and convincing evidence.
Revocation of Codicils
Revoking a codicil does not revoke the entire will.
But revoking the will revokes all codicils attached to it.
Revival of Wills
Republication is required. Revoking a new will does NOT revive the pervious one.
Dependent Relative Revocation (DDR)
Testator’s revocation is disregarded if based on a mistake of law or fact and would not have been made but for that mistake. The original will is revived.
Classification of gifts
(1) Specific = gift is distinguishable with reasonable accuracy from other property
(2) General = gift satisfied from general assets of the estate
(3) Demonstrative = gift from a particular source, but if source is insufficient, considered a general gift
(4) Residuary = remaining estate when all other gifts are satisfied.
Incorporation by reference
Not recognized by NY (but pour-over exception)
Acts of independent significance
Allows testator to refer to acts that have significance beyond testimentary prupose—things that will change after the will is executed. (“I leave $5,000 to each of my employees” = employees will change)
Lapse
If giftee pre=deceases, property passes to residuary.
Anti-lapse statute = gift passes to dead giftee’s issue or sibling. If to a class, class can take the gift.
Abatement
Gifts are reduced or eliminated when estate is insufficient to pay all debts and make all gifts. Abated in following order:
Intestate property
o Residuary bequests
o General bequests to people other than relatives
o General bequests to relatives
o Specific bequests to people other than relatives
o Specific bequests to relatives
o Dispositions to SS that qualify for estate tax marital deduction
Ademption
If a gift is missing/destroyed/not owned at time of gift, the giftee takes nothing. Also adeemed if testator transfered inter vivos to the giftee with intent to adeem the devise.
Securities:
Pre death changes = includes additional shares if action was initiated by corporate entity (i.e., share divisions)
Post-death changes = specific bequests carry all post-death income. General bequests carry interests beginning one year after testator’s death.
What is the homestead exception? how long does it last?
Homestead exemption = spouse gets value of real property up to $150,000 exempt from creditors claims. Lasts until the later of the wife’s death or when the youngest surviving child reaches the age of majority.
What property is subject to the spouse elective share?
Property subject to elective share = D’s estate, intestate distributions of property, and testamentary substitutes made during D’s lifetime (including those benefiting SS)
Advancement of intestate share
Deceased must declare in contemporaneous writing OR heir acknowledge in writing that the gift was an advancement.
Pretermitted Children
Intestate share if testator has no living children at time will executed OR other living children were disinherited. Equal share w/ testator’s other children otherwise.
Exceptions—
(1) omission was intentional;
(2) T provided for child outside of will
(3) T otherwise provided for or mentioned child in will
Bars to Succession
(1) Homicide
(2) Disclaimer
(3) Disqualification of spouse (for abandonment or failure to support) or parent (for failure to support, abandonment, or abuse)
Types of will contests
(1) Lack of capacity (testator only needs the ability to understand, not actual comprehension)
(2) insane delusion = no factual or reasonable basis for belief
(3) Undue influence = must show existence and exertion of influence AND confidential relationship. (affection or gratitude is insufficient)
(4) Fraud (fraud in inducement / fraud in execution)
(5) Duress
Living Will
Instruct healthcare providers not to provide life-sustaining treatment that the patent does not want.
Durable Healthcare Powers / Health care proxy
Designates someone to make medical decisions in the case of incapacity.
Execution = competent adult may sign/date written proxy in presence of two witnesses
Revocation = at any time orally, in writing, or other act showing intent to revoke
What are powers of attorney? How are they created, revoked and terminated?
Make any legal decisions on behalf of the person.
Durable Power of Attorney = continues despite principal’s later disability/ incompetency
Execution = by competent principal and agent, with signatures acknowledged with same formalities as for real property
Revocation = powers can be revoked by principal at any time
Termination = death of principal
What must a testator know/appreciate in order to have testamentary capacity at the time he executes a will?
Has the “ability” to know
(1) the nature of his act;
(2) the nature, character, and value of his property;
(3) the natural objects of his bounty;
(4) the fact that he is executing a will; AND
(5) his planned disposition of assets.
Presumption that testator knows this; burden on contestant to prove otherwise.
In NY, can a surviving spouse retain an interest in a survivorship estate/joint bank account held between the deceased spouse and a third party? What test is used?
“Consideration furnished” test = surviving spouse has the burden of establishing the amount of decedent’s contribution to the estate / amount in bank account.
If the account/estate was created more than 1 year before death of the deceased spouse OR more than 1 year before the couple’s marriage, only 1/2 is counted as a testamentary substitute.
What are the exceptions to no-contest clauses in a will?
(1) Forgery,
(2) Revocation of a will by presenting a subsequent will,
(3) jurisdiction,
(4) proceedings brought on behalf of infants or incompetents
(5) proceedings brought for construction of a will’s terms.
When a spouse exercises the spousal elective share, from what property is the elective share satisfied? How does it reduce the share taken by others?
In this order:
(1) apply property already received by the spouse (don’t count life estates
(2) apply money from the rest of the estate
What is an intestate surviving spouse entitled to?
If decedent has no issue = Everything
If decedent has issue = $50,000 + 1/2 of entire estate
What is issue of a intestate decedent entitled to?
After surviving spouse takes, if there is one, remainder of the state is split up by “representation” (per capital at each generation).
What is the statute that governs wills in NY?
The Estates, Powers and Trusts Law (EPTL)
When is intestacy used?
(1) person dies without a will
(2) person drafts a will that is found invalid
(3) person fails to dispose of entire estate (partial intestacy)
What individuals take under rules of intestacy?
(1) Surviving spouse, if there is one
2) any descendants (children, grandchildren, etc.
What counts as a “spouse” for purposes of intestacy?
Only actual marriage. Divorce eliminates surviving spouse status, but separation or mere divorce proceedings do not.
Abandonment eliminates surviving spouse status if abandonment is…
(1) voluntary
(2) permanent, AND
(3) Non-consensual
What counts as a “surviving” spouse in NY? I.e., simultaneous death statute
NY presumes spouses died simultaneously if they die within 120 hours (5 days) of each other.
What is the effect of simultaneous death on a person estate distribution?
Each person’s estate is distributed as if the other person had died first.
What is distribution by “representation”?
Per capita distribution at each generational level. “Equally near, equally dear.” Approach followed by NY.
What is distribution “per stirpes”?
Estate is divided by each descendant line, giving each child the same regardless of whether that child predeceased the testator.
What is the “modern per stirpes” distribution approach?
Similar to per stirpes, but the initial division is made at the nearest generation that has a living class member. (E.g., only comes into play if all the decedent’s children are dead. In this case, all grandchildren take an equal share of the estate)
What counts as “issue” for intestacy purposes?
(1) natural-born, biological children
(2) posthumously born children
(3) any adopted children
(4) any issue of children (lineal descendants) if the child is dead
Does adoption cut off inheritance rights for the adopted child from the natural parent?
Not under these conditions:
(1) decedent died after Aug 31, 1987
(2) decedent was adopted child’s grandparent or descendant of a grandparent, AND
(3) adoptive patent is married to the child’s biological parent.
Note: inheritance only flows in one direction, to the child.
When can a non-marital child inherit from the mother in intestacy?
Always. Non-marital children are treated as a biological child of the mother for all purposes.
When can a non-marital child inherit from the father in intestacy?
(1) Marriage: marries natural mother
(2) Behavior: father holds child out as his own AND clear and convincing evidence acknowledges the paternal relationship
(3) Blood Test: Paternity is established during the father’s lifetime through blood genetic marker test AND clear and convincing evidence acknowledges the paternal relationship
(4) Adjudication: paternity was adjudicated during lifetime of the father OR natural parents executed an acknowledgment of paternity
(5) Written Acknowledgment: father executed a document acknowledging paternity, it was proven in the form required by a deed AND filed within 60 days with the Putative Father Registry.
Can remote relatives (not spouse or issue) take through intestacy?
Only if decedent dies without a surviving spouse or issue. Distribution in this order:
(1) surviving parents
(2) issue of parents (decedent’s brothers, sisters)
(3) surviving grandparents
(4) issue of grandparents (decedent’s aunts, uncles, cousins)
No one beyond a first cousin once removed takes.
What is “integration” in the context of wills?
Doctrine that allows all pages that are present at the time of execution and are intended to form part of the will to be integrated into the valid will. NY courts are liberal in willingness to include additional documents are part of the will. Connection can be shown by (1) physical connection of the pages OR (2) ongoing nature of the language of the will.
To whom does the NY anti-lapse statute apply?
(1) siblings
(2) issue
Either one must have issue of their own.
What two ways do courts use to avoid ademption of gifts?
(1) treat the disposition as general (dollar amount) instead of specific.
(2) Treat extinction as change in form, not substance
Will NY courts allow extrinsic evidence to resolve ambiguities or mistakes in a will?
Yes.
What 5 protections does a surviving spouse enjoy?
(1) homestead exception
(2) personal property set aside
(3) elective share
(4) social security
(5) pension plans
What is the surviving spouse homestead exception in NY?
Surviving spouse and surviving children entitled to $150,000 of real property
What is the surviving spouse’s property set aside in NY?
Spouse gets day-to-day stuff up to certain statutory caps. Includes family pictures, videotapes, computer tapes and software, the family Bible, a car, farm machinery, household furnishings, appliances, and money and personal property.
When can a spouse not take the spousal elective share?
Only if there is a prenuptial agreement.
Can a spouse waive her elective share?
Yes. Must be in writing and acknowledged. No consideration needed.
How do you calculate the spousal elective share?
Net estate subject to elective share =
(1) testamentary assets
(2) + intestate property
(3) + testamentary substitutes
(4) –debts/expenses (not taxes)
(5) – exempt property (i.e., life insurance and irrevocable transfers)
Net elective share amount =
(1) $50K or 1/3 of net estate (after debts, administrative expenses and funeral expenses, but before taxes)
(2) – any testamentary, intestate, or testamentary substitute dispositions to spouse
(3) if 7 months pass since issuance of letters of testamentary to executor, spouse gets 6% interest on value.
Can a spouse be disqualified from taking her elective share?
Yes, if
(1) abandonment,
(2) failure to support, OR
(3) murder of other spouse.
What are the grounds for disqualification from inheriting?
(1) failure to support
(2) abandonment
(3) abuse
Can a will impose a restraint on marriage?
Total restraints on marriage are void. Partial restraints are valid.
Are no-contest clauses allowed in wills?
Recognized by strictly construed and disfavored.
Who has standing to challenge a will’s validity?
Standing = only (1) those who benefit from will OR (2) would have taken in the case of intestacy
In a challenge to a will based on lack of capacity, does the testator need to actually understand his act and the value of his property?
No. Only the capacity to know these things is required.
What court in NY is responsible for probating a will?
Surrogate’s court
What is “notice” probate?
Formal probate. Requires notice to all potentially interested parties and provides protection against creditors and final judgments.
When may a individual challenge a will despite a no-contest clause and not trigger the clause? (three situations)
(1) claim of forgery
(2) challenge on behalf of a child or incompetent
(3) objection to jurisdiction of the court
Is a no-contest clause enforceable if the individual challenging the will is successful and the will is struck down?
No. Person will take.
In the absence of a person designated a personal representative to probate a will, who is appointed?
In this order:
(1) surviving spouse
(2) children of decedent
(3) decedent’s parents
(4) siblings of decedent
(5) any person who is a distributee and eligible.
What are the principal duties of a personal representative who probates a will?
(1) inventory and collect decedent’s assets
(2) manage assets
(3) receive and pay claims of creditors and tax collectors
(4) distribute assets to people entitled to them
What is “probate property”?
Property that passes under intestacy or under decedent’s will. Typically, this gets addressed in distribution AFTER non-probate property.
What is “non-probate property”?
Property that passes under an instrument other than a will. (e.g., joint tenancy property, life insurance, pension plan proceeds, etc.) Typically, this gets addressed in distribution BEFORE probate property.
What is small-estate administration in probate?
Informal probate. Available if $20,000 or less in personal property. Do not count real property or any allowance/property set-aside.
What is notice probate?
Formal probate. Commences after notice is given to all interested parties. Used to probate a will, block an informal proceeding, or secure a declaratory judgment of intestacy.
What kinds of creditors can contest a will.
Only judgment creditors of a beneficiary under the will. General creditors CANNOT challenge a will because they have the same rights whether or not a will is probated.
Can a spouse of a beneficiary under a will contest the will?
No.
Can a surviving spouse receive worker’s survivor benefits from social security? Can anyone else?
Yes. Only the surviving spouse.
How are specific bequests of securities treated?
Deemed to include any additional shares of that security or of another security acquired by reason of…
(1) stock split
(2) stock dividend
(3) reinvestment, or
(4) merger
Not entitled to include any pre-death cash dividends or distribution.
How are generic bequests of a security treated (i.e., does not specify a number of shares)?
Beneficiary does not take any additional shares.
Can a surviving spouse take the pension plan of a decedent?
Under ERISA, pension plans give spouses survivorship rights. But a spouse can waive her rights in the pension plan.
What is the personal property set-aside in NY?
Spouse and minor children are entitled to certain property upon testator’s death. Personal property exception subject to caps (car = up to $25,000)
When can a testamentary substitute be subject to the spouse’s elective share?
(1) transfer was made to benefit the spouse or a third party
(2a) if revocable = can be before or after marriage to spouse
(2b) if irrevocable = must have been made after marriage to the surviving spouse
In order to provide for a spouse’s elective share, whose interests must be curtailed?
Recipients of (1) testamentary substitutes, (2) testamentary beneficiaries, and (3) intestate distributees contribute ratably.
What is the statute of limitations for the spouse’s elective share?
6 months from issuance of letters of testamentary or administration. No more than 2 years after death of decedent.
Must be exercised within spouse’s lifetime (no posthumous elections).
What is the spousal right to set aside transfers? When can it be used?
Spouse can set aside inter vivos transfers of the decedent if made
(1) during the marriage
(2) without spouse’s consent, and
(3a) within one year of testator’s death, OR
(3b) retained an interest in the property transferred, OR
(3c) received less than adequate consideration
In NY, can a surviving spouse retain an interest in a survivorship estate/joint bank account held between the deceased spouse and the surviving spouse?
Yes. Only 1/2 of the estate will be considered a testamentary substitute that transfers to the spouse.
Can a will exonerate a executor from fiduciary responsibilities?
No. Any clause attempting to do this is invalid.
If a party is disqualified from inheritance due to conviction of murder of the decedent, can the killer’s issue take?
Yes.
What is the difference between a “devise” and a “bequest” or “legacy”?
Devise = real property
Bequest / legacy = personal property
What are the requirements for a valid disclaimer of a testamentary gift?
(1) in writing, executed, and acknowledged
(2) with sworn affidavit stating there was no consideration paid for the disclaimer
(3) irrevocable
(4) filed within 9 months of decedent’s death
What elements are required for a finding that a parent failed to support a child?
(1) failed to support a child under 21yo
(2) had means to support
(3) no mitigating circumstances
(4) received a request from the other parent for support
When can a foster child/stepchild inherent from foster parents / stepparents despite never being formally adopted?
Equitable adoption—Two elements:
(1) Foster relationship began during child’s minority AND continued during lives for foster parent
(2) Clear and convincing evidence shows foster parent/stepparent would have adopted the child but-for a legal barrier
If a foster parent intends to adopt a child, but does not, can the child still inherit in intestacy?
Equitable adoption—child can be treated as issue of the parent if
(1) foster parent entered agreement with natural parents to adopt the child, AND
(2) foster parent treated the child as his own.
What happens when an attorney both drafts a will and takes a gift under the terms of the will?
Under “Putnam scrutiny,” there is a rebuttable presumption that the attorney exercised undue influence. Attorney has burden of rebutting undue influence.
After a witness is purged from a will, when can the witness receive an intestate share? And how much of it?
If witness would have inherited under rules of intestacy, that witness is entitled to the LESSER of (1) the gift under the will, or (2) intestate share.
Are there any exceptions to ademption that occurs as a result of a sale of a gift mentioned in a will?
Yes. If the testator is incompetent at the time of the sale, ademption does not occur UNLESS the will was executed prior to incompetency.
What warnings must an attorney give a client before serving as the client’s estate executor? What is the consequence of failing to give warnings?
Warnings must be IN WRITING and SIGNED by testator in presence of 2 WITNESSES:
(1) any person can be named executor;
(2) commissions are paid to executors; and
(3) attorneys fees will also be charged in representing the estate.
Failure = reduction of 50% in commission otherwise entitled to earn
