Wills Flashcards
NY law governing wills and estates
(1) estates powers and trusts law (EPTL)
2) Surrogate’s court procedure act (SCPA
Definitions: intestate
when a person dies without a will
Definitions: decedent
A person who dies with a without a will
Definitions: distributee
Person who inherits property under intestate succession
Definitions: issue
All persons who have descended from a common ancestor, including those in direct line of inheritance with the decedent
Definitions: administrator
Person appointed as a personal representative to administer the estate of decedent
Definitions: administration proceeding
Proceeding initiated by distributee to appoint an adminstrator and administer the estate to the decedent
Definitions: intestate property
assets held in the decedent’s name alone that do not pass by operation of law or by will and which the administrator administers in accordance with the EPTL
Definitions: operation of law
Property that passes automatically because of the way the property’s title is held, regardless of the existence of a will or intestacy
Residuary
Balance of decedent’s estate after all claims, taxes and particular bequests have been distributed
Intestacy: application of intestacy rules
(1) decedent left no will
(2) The will does not make a complete distribution (partial intestacy)
(3) a distributee successfully challenges the will and will is denied probate
Intestacy: order of priority for appointment as administrator
(1) surviving spouse
(2) children
(3) grand children
(4) parent
(5) siblings
(6) any other distributee
Intestacy: distribution of decedent if survived by spouse and no children
Surviving spouse takes the whole estate
Intestacy: distribution of decedent if survived by spouse and children
(1) Surviving spouse takes 50,000 + 1/2 of residuary
(2) issue takes left over residuary
Intestacy: distribution of survived by children only
(1) passes to children in equal shares
Intestacy: distribution if survived by children and issue of predeceased children
(1) Passes to alive children and issue of the dead children by representation or per capita at each generation
(2) aggregate all shares of any dead children and share it equally with grandchildren
Intestacy: distribution when not survived by spouse or issue
(1) all parents or surviving parents
(2) all to issue of parents (siblings and issue of decease siblings)
(3) 1/2 to maternal grandparents or surviving grandparent or to their children and grand children per capita and 1/2 to paternal grandparents or surviving grand parent or to their children and grandchildren who take per capita
(4) all to grandparents or their children and grand children on the other side
(5) 1/2 to maternal great grand children in equal shares and 1/2 to paternal great grand children in equal shares
(6) all to great grandchildren on one side
(7) estate escheats to the state of new york if nearest kin are great grandchildren of grandparents or issue of great grandparents
Intestacy: per stirpes
(1) opposite of default rule, issue of predeceased children take the child share and share it equally only amongst the child’s other children/issue and not with issue of other predeceased children
Intestacy: Inheritance rights of adoptive children
(1) full inheritance is general rule
(2) if adopted into a new family, no inheritance rights from birth parents or other members of birth parents family; exception if the child is adopted by the spouse of a birth parent (can inherit from either birth parent)
(3) if adopted by relative inherit under birth relationship unless decedent was the adopting parent, then inherit from the adopting relationship
Intestacy: inheritance rights of non marital children
(1) non marital child has full inheritance rights from the mother/mother’s family
(2) four tests to establish paternity: During father’s life: (i) father marries the mother after child’s birth; (ii) order of filiation in a paternity suit is entered adjudicating the man as father; (iii) father files a witnessed and acknowledged (before notary) affidavit of paternity with putative father registry; after or before death (iv) paternity is established by clear and convincing evidence: (a) DNA test; (b) openly and notoriously acknowledge child as his own
Intestacy: circumstances disqualifying spouse from taking intestate share (DISMAL)
(1) divorce
(2) invalid divorce procured by surviving spouse
(3) separation decree must be specific language in the agreement waiving the surviving spouse’s right under EPTL
(4) marriage is void (incestuous or bigamous or fraud)
(5) Abandonment or lack of support
Intestacy: how to distribute if spouse is disqualified
(1) assume surviving spouse predeceased and drop their share to kids or next in line
(2) no slayer statutes in NY per say, but constructive trust is created
Intestacy: lifetime gifts to intestate distributee advancements
(1) NY rule: no advancement unless proven by: (i) contemporaneous writing made at time of gift; (ii) signed by donor or donee
Intestacy: disclaimer by intestate distributee
(1) No one can be compelled to be a distributee or take property by operation of law
(2) person who disclaims is considered to have predeceased
(3) valid disclaimer must be: (i) in writing, signed and acknowledged; (ii) accompanied by separate affidavit stating that no consideration was received for disclaiming; (iii) irrevocable; (iv) filed with surrogate’s court within 9 months after date of death
Definitions: testate
When a person dies with a will
Definitions: testator
person who dies with a will
Definitions: beneficiary
person who receives bequest under will
Definitions: executor
A personal representative named in the will to administer the estate of a testator
Definitions: probate proceeding
(1) judicially determine whether the testator’s will was validly executed and determine the intestate distributees
(2) appoint the executor to administer the testator’s estate
Definitions: probate
Assets held in the testator’s name alone that do not pass by operation of law which the executor administers in accordance with the testator’s will
Definitions: satisfaction of legacy
Lifetime gift to a will beneficiary
Requirements of duly executed will (7 point test)
(1) must be 18 years old
(2) signed by testator or someone at the testator’s direction and in her presence
(3) signature must be at the end thereof
(4) Testator must sign will or acknowledge earlier signature in presence of a witness
(5) must publish will (communicate to witnesses that they are witnessing a will)
(6) Must be at least 2 attesting witnesses
(7) execution ceremony which starts to run when 1st witness signs
(8) Codicil or later amendment to will has same requirements
Burden of proof due execution
(1) will proponent has the burden of proving due execution: If one witness is not available to testify the testimony of the other suffices; if no witnesses are able to testify, will proponent must prove the signature of both the testator and one witness; Will is not self-proved
(2) Attestation clause recites all elements of due execution; have one if witness has bad memory or is hostile
(3) self-proving affidavit: substitute for live tesitmoy
Interested witness statute
(1) the validity of a will is not affected if a will beneficiary is also an attesting witness but the bequest to the witness is void unless: (i) at least 3 witnesses and 2 were disinterested; or (ii) the interested witness would be an intestate distributee if testator dies w/o a will (takes lesser of bequest under will or intestate share)
Foreign wills act
(1) a will is admissible to probate in NY if it was validly executed under: (i) the law of the state where the will was executed; (ii) NY law; (iii) the law of the state where the testator was domiciled, either when will was executed or at death
Revocation: two ways
(1) subsequent testamentary instrument executed with appropriate formalities
(2) by physical act with intent to revoke
Revocation: express revocation
“i hereby revoke all wills heretofore made by me”
Revocation: revocation by implication
(1) to extent possible read two instruments together and the codicil only revokes the first will to the extent of inconsistent provisions
(2) exception: if second will is wholly inconsistent with first, first will is revoked by implication
Revocation: revocation by physical act of another
(1) must be: (i) at testator’s request; (ii) in testator’s presence; (iii) witnessed by at least two witnesses
Revocation: presumptions
(1) when will was last seen in testator’s possession or control is not found after death it is presumed to have been revoked by physical act
(2) when a will was last in testator’s possession or control is found damaged, presumed T was the one who revoked by physical act