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.
4 types of disposition
1) Specific
2) Demonstrative
3) General
4) Residuary
Order of satisfaction of debts
1) Intestacy
2) Residuary beneficiaries
3) General beneficiaries
4) Demonstrative beneficiaries
5) Specific beneficiaries
NY Anti-lapse statute
Gifts so siblings or issue will not lapse.
Presumption only. If will indicates intent of survivorship, anti-lapse statute does not apply.
Class gifts
If one member of a class dies, bequest does not fail, but goes to living class member.
MUST be “group minded” disposition.
Ademption
If testator did not and did not intent to get rid of the property, ademption applies.
1) recharacterize specific bequests as general bequests.
2) treat extinction as a change in form, not substance.
Extrinsic evidence rule
NY allows extrinsic evidence to clarify ambiguities or mistakes in wills.
Protections for surviving spouse
- All are statutory transfers, free from creditors.
1) Homestead exception
- $75k-150k depending on counties.
2) Personal property set aside
- stuff of day-to-day life, a car, etc.
3) elective share = $50k OR 1/3 of net estate
- gross estate includes gifts made in contemplation of death, joint bank accounts, tenancies, inter vivos trusts, deferred compensation plan, pension plan, death benefit plan, stock bonus plan, profit-sharing plan, BUT NOT life insurance or irrevocable transfers made prior to marriage.
- net estate = gross estate - debts and expenses of estate.
- EXCEPTION: valid prenup can extinguish right to elective share.
Inter vivos gifts to children
If gifts during life are accompanied by contemporaneous writing indicating it is part of inheritance, will be offset against inheritance.
Pretermitted child
If born after will, omission presumed mistake, UNLESS separately provided for through trust or life insurance, etc.
1) no other children –> intestate share.
2) other children –> entitled to same type of inheritance as other kids.
3 bars to succesion
1) Homicide
2) Disclaimer/renunciation
- treated as having predeceased.
3) Disqualification
- abandonment or abuse.
5 grounds to challenge mental state of the testator
1) Lack of testamentary capacity. testator must understand:
i) nature of the act
ii) nature and value of property
iii) natural objects of bounty
iv) that he is executing will
v) plan of the attempted disposition.
- if challenge is successful, whole will is struck down.
2) Insane delusion
- no factual or reasonable basis
3) undue influence
- burden is on challenger, BUT presumption will shift to beneficiary if confidential relationship + suspicious circumstances.
4) Fraud
- result of fraud in inducement = constructive trust in favor of people who would have benefited if not for fraud.
5) Duress
Notice probate
MUST give notice to all affected parties.
- Standing to challenge will: MUST be someone who would benefit from the will being struck down.
NY: no challenge clauses
NY recognizes no challenge clauses, but lists a few things as NOT included:
1) claim of forgery
2) challenge on behalf of child or incompetent person
3) objection to jurisdiction
Default order of personal representative
1) surviving spouse
2) children of the decedent
3) grandchildren of the decedent
4) parents of the decedent
5) siblings of the decedent
6) any other eligible person.
Duties of personal rep
1) inventory and collect assets
2) manage assets
3) receive and pay claims
4) distribute remaining assets to those entitled
Termination of power of attorney
1) death of principal
2) revocation
3) incapacitation
4) specific revocation with no replacement
5) agent resigns, is incapacitated, or dies.
6) court revokes power of attorney.
7) purpose is completed.
