Wills Flashcards
Intestate share of surviving spouse
1) if not kids, everything.
2) if kids, $50k + 1/2 of net estate.
MUST be “true spouse.”
- abandonment will disinherit if voluntary, permanent, and nonconsensual.
Simultaneous death
If spouses die within 5 days of each other, presumed to have died at same time, and each is treated as having predeceased the other.
Issue inheritance in NY
Per capita by generation: “equally near, equally dear”.
Divide - distribute - rebundle - divide again.
Per stirpes (NOT NY approach)
Divide along familial lines.
Modern per stirpes approach (NOT NY approach)
Division begins at nearest generation with a living class member.
Rights of inheritance for adopted child
Adopted child may inherit throughadoptive parent AND natural parent IF:
1) person died after August 31, 1987.
2) decedent was adopted child’s grandparent or descendant of grandparent; AND
3) adoptive parent is married to biological parent.
- 1-way ONLY: natural parent may NOT inherit through child.
Inheritance of nonmarital children
May inherit from father ONLY IF:
1) Father subsequently married natural mother.
2) Father held child out as his own + other clear and convincing evidence.
3) Paternity established via blood test.
4) Paternity was adjudicated or acknowledge according to law.
5) father executed instrument recognizing paternity with formalities of deed and deposited with Dep. of social services within 60 days.
Order of intestate inheritance by remote collaterals
1) Parents
2) Issue of parents, i.e. siblings
3) Grandparents
4) Issue of grandparents
NOT anyone beyond first cousin once removed.
IF no relatives, then escheats to state.
3 Requirements of will formality
1) in writing.
- EXCEPTION: nuncupative wills, ONLY for armed services member in time of war.
2) signed.
- MUST be at end. any material after that is ignored.
- X or signed by someone else is okay if done with authority.
3) signed by 2 competent witnesses.
- need not be simultaneous, just within 30 days of each other.
- EXCEPTION: holographic wills (NOT recognized in NY), i.e. wills in testator’s own handwriting.
- competent = disintered.
- if witness is beneficiary of will, then will is struck down. In NY, will is saved, and beneficiary inheritance in limited to intestate share.
Codicils
= amendments to will. same formalities as will.
3 ways to modify a will
1) Integration
- any documents presented along with will at time of signing.
2) Acts of independent significance
- significant beyond testamentary intent.
3) Incorporation by reference
- NOT recognized in NY, EXCEPT for pour-over gifts into a lifetime trust.
Will substitutes
1) Revocable trusts
2) Pour over trusts
3) Bank accounts for benefits of someone else.
4) Contracts with payable on death provisions.
5) Life insurance.
6) Joint tenancies.
7) Totten trusts.
8) Gifts causa mortiae.
Revocation of will
1) Operation of law
- divorce revokes bequest to spouse.
2) Physical act
- destruction: tearing, canceling, burning with INTENT to revoke. must touch vital parts of the will.
- NY does NOT allow partial revocation by physical act.
- revocation presumed if will was in testator’s possession at time of death is missing.
- 3p revocation: must have testator permission, in testator’s presence, with 2 witnesses.
3) Subsequent testamentary instrument.
- later will expressly revokes.
- later will impliedly revokes to extent of inconsistencies (if not entirely inconsistent, then a codicil).
- revocation of a will revokes all codicils to the will.
- revocation of codicil revives previous will.
Republication by codicil
If codicil executed to valid will, will is presumed republished at date of codicil.
Revocation based on mistake
If testator’s intent to revoke was based on mistake, the revocation is not effective.
