Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

NY Bar > Wills > Flashcards

Wills Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

Intestacy

A

Property remaining after the intestate’s death passes to the intestate’s heirs, accoring to a state specific . (unalterable) scheme

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Intestacy Applicable Law

A

Which state’s intestacy laws apply?

  • Marital Rights - Law of domicle when acquired
  • Succession Rights -
    • Personal Property - Intestate’s domicile at death
    • Real Property - Law of situs
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Intestacy General Scheme

A
  1. Surviving Spouse’s Share
    • Spouse made an heir, spouse’s portion varies by state
  2. Share of Descendants
    • Per Stirpes
    • Per Capita With Representation
    • Per Capita at Each Generation
  3. Share of Ancestors and Collaterals
    • Parents, then siblings, then grandparents, etc.
  4. Escheat to State
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Per Stirpes (By Right of Representation)

A

Divide into shares at first generation below decedent even if no survivors; one share for each surviving child and one share for each deceased child that left descendents.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Per Capita With Representation

A

Divide into shares at first generation with survivors

If all children deceased and all property going to grand childer, each grandchild takes an equal share

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Per Capita at Each Generation

A

Divide into shares at first generation with survivors but then gives all equally related persons the same share.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Unworthy Heirs

A
  1. Heir Killing Statue
    • If heir murders the intestate heir will not take through a slayer statute or constructuve trust
    • Courts are divided on how to handle lesser degrees of killings
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Advancement

A

Intestacy

An irrevocable gift intended by the donor as prepayment of an inheritance

  • Many states require a writing

Effect of Advancement: Advancee must account for advancement–go into hodgpot–compute shares as if advancement were part of the estate

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Survival

A

Most states require an heir to outlive the intestate by a set period to inherit (generally 120 hours)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Disclaiming an Inheritance

A
  • In writing,
  • signed by disclaimant, and
  • acknowledgement before a notary,
  • filed within 9 months.

Can’t disclaim after acceptance

Disclaimers are irrevocable

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Compliance with Formalities of Wills

A

Most states require exact compliance

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Wills Applicable Law

A
  • Real Property
    • Law of Situs
  • Personal Property
    • Law of domicile at death
  • Savings Statutes (most states)
    • Will valid if it complies with
      • local law,
      • law where executed, or
      • law of decedent’s domicile at death or when executed
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Requirements of a Valid Will

A
  1. Legal Capacity
    • Generally, 18 years old
  2. Testimentary Capacity
    • Sound Mind
      • understand the action, comprehend effect, know the general nature and extend of property, recognize the natural objects of bounty
      • All at same time
  3. Testamentary Intent
    • Must intend instrument to be a will
  4. Formalities
    • In Writing
    • Signed by Testator or Proxy
    • Attestation (Witnesses)
      • at least 2, must have capacity, may need to know it is a will, in testator’s presence
      • Some states void gifts to interested witnesses
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Holographic Wills

A
  • Wills in testator’s own handwriting
  • State’s vary as to what can be in testator’s own handwirting
  • In about 1/2 states, holographic wills do not need witnesses
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Classifications of Testamentary Gifts

A

Based on Type of Gift

  1. Devise - Gift of Real Property
  2. Bequest - Gift of Personal Property
    • Specific - Exactly known
    • Specific of General Nature
  3. Legacy - Gift of not-sufficiently described personal property (often cash)
    • General
    • Demonstrative - Payble out of a designated fund
  4. Residuary Gift

Based on Type of Beneficiay

  1. Private gift (non-charitable)
  2. Charitable
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Ademption

A

For specific gifts

  • By Extinction (not in estate)
    • Generally, gift fails, unless
      • replacement item
      • balance of purchase price (after testator sells)
      • proceeds of condmenation or insurance
      • proceeds from sale by guardian or conservator
  • By Satisifaction
    • Similar to advancement of intestacy
    • May require writing for gift to be deemed a satisfaction
17
Q

Abatement

A

When estate it too small to satisfy all gifts, what gifts fail. Generally:

  1. Intestate property,
  2. Residuary property,
  3. General gifts,
  4. Demonstrative gifts,
  5. Specific gifts.

Within a class, abatement is pro rata.

18
Q

Lapse and Anti-Lapse

A

If beneficiary predeceases testator, gift lapses

Lapse Analysis:

  • Under express terms of will
  • Gift saved by anti-lapse statute (or cy pres for charity)
  • Via residuary clause
  • Via intestacy

Anti-Lapse Statutes

  • Vary by state (lineal descendents, all family, everyone)
19
Q

Cy Pres

A

Ability of a court to substitute equitably equivalent charity upon finding testator had charitable intent

Will consider extrinsic evidence

20
Q

Interpretation of a Will (General Principles)

A

Basic construciton maxims

  • will shows intent not to die intestate
  • most recent provision prevails in case of controdictory provisions
  • will is construed as a whole
  • attemt to give meaning to all words
21
Q

Ambiguity in Wills

A
  1. Patent (obvious) ambiguity - ambiguous on face
    • court will consider extrinsic evidence but won’t fill in blanks
  2. Latent (hidden) ambiguity - ambiguous on face but cannot be carried out wihout further clarification (e.g., who are “children”
    • will consider extrinsic evidence
  3. No apparent ambiguity - clear on face
    • Plain meaning rule
    • Modern rule - may consider extrinsic evidence
22
Q

Incorporation by Reference

A

Must have

  1. Intent to incorporate,
  2. Writing in existance when will executed, and
  3. Be clearly identified in will
23
Q

Revocation of Wills by Operation of Law

A
  • Marriage
    • Common Law States
      • Forced or elective share (regardless of what is in will)
    • Community Property State
      • Spouses already own undivided interest in properties earned after marriage
        • Spouse owns 50% of community property on death of other
  • Divorce
    • Privisions in favor of ex-spouse are void
  • Pretermitted or Omitted Children
    • Born after execution, generally receive a share
    • Exception for intentionally omitted
24
Q

Revocation of Wills by Physical Act

A

Requires

  1. Intent to Revoke,
  2. Mental Capacity
  3. Physical Act (can be by proxy in presence of testator)

Partial Revocation by physical act (written in changes)

  • depends on state, some state give effect if there is sufficient evidence to show testator made the changes
25
Q

Revocation by Subsequent Will or Codicil

A
  • Express Revocation
  • Revocation by Inconsistancy
    • only revokes inconsistant parts
26
Q

Revival

A

Will 2 revokes Will 1. Will 2 is later revoked, is Will 1 revived?

Depends on jurisdiction:

  • Revival approach = yes
  • No revival approach = no
  • Intent approach = depends on testator’s intent; look to facts
27
Q

Dependent Relative Revocation

A
  1. Revoking will 1 on presumption will 2 is valid, if will 2 is not valid, is will 1 revoked?
    * Look to testator’s intent
28
Q

Will Contests

A
  • Standing
    • Heirs and Beneficiaries
  • Burden of Proof on will contestent to prove will invalid
  • Grounds
    • Failure to Meet Elements of Will
    • Insane Delusions
      • persistent belief in facts against all evidence that have direct impact on disposition
    • Undue Influence
      • Influence must exist and be exerted
      • overpower the testator’s mind and will
      • must be but for cause
      • May consider circumstantial evidence
    • Duress
    • Fraud (courts can fix)
      • Fraud in factum
      • Fraud in inducement
    • Mistake
      • Mistake in factum (courts can fix)
      • Mistake in inducement (courts can’t fix)
  • No contest, forfeiture provisions
    • Generally enforceable unless contestant was in good faith and had probable cause to file the contest

NY Bar (16 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions