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
Revocation: changes on the face of will after it has been executed
Ways to make changes to will
(1) write a new will that revokes the first one
(2) make a codicil that changes earlier parts
Revocation: bar exam twists
(1) words added to will after it is signed are not recognized
(2) no partial revocation by physical act
Revocation: no revival of revoked wills
(1) if testator executes a will that is revoked by a later will containing a revocation clause, the first will cannot be revived by testator merely revoking the later will
(2) revived in two possible ways: signed again with two witneeses; validly execute a codicil making the wanted changes
Revocation: dependent relative revocation
(1) permits revocation of a later will to be disregarded
(2) requirements: (i) testator’s revocation must be premised or dependent on a mistake of law; (ii) disposition that results from disregarding the revocation of the later will must come close to the dispositions the testator intended when he attempted to revive the earlier will
(3) unclear if they apply in NY (argue both sides on essay)
Revocation: lost wills statute
(1) used for DRR and truly lost wills
(2) Lost will proponent must prove that: (i) lost or later will was duly executed; (ii) lost or later will was not revoked; (iii) will’s provisions are clearly and distinctively proven by each of at least two credible witnesses, or by a copy or draft of the will proved to be true and complete
Anti-lapse statute
(1) if a beneficiary dies during testator’s lifetime the gift to the beneficiary lapses unless the gift is saved by the state’s anti-lapse statute
(2) NY anti-lapse: two conditions: (i) predeceased was T’s issue, brother or sister; (ii) predeceased beneficiary leaves issue
Lapse in residuary gift
absent a contrary provision in the will, if testator’s residuary estate is: (i) devised to two or more persons; (ii) the gift to one of them fails or lapse for any reason; (iii) and the anti-lapse statue does not apply, then the other residuary beneficiaries take the entire residuary estate in proportion to their interests
Class gifts: rule
Absent a contrary provision in the will, if a will makes a gift to a group of persons described as a generic class and some members of the class predecease the testator, the class members who survive the testator take in equal share
Class gifts: how to determine members of the class
Look at who is alive at the time of testator’s death
Class gifts: when testator names beneficiaries individually, not as a class
if one member predeceases, share lapses but goes to residuary
Class gifts: construction of a class gift implicating an adopted out child
(1) if a child is adopted by a new family the adopted out does not take as a beneficiary of a class gift made in the will of a member of the child’s birth family
Class gifts: rule of convenience
(1) the class closes at the time a distribution to the class must be made
(2) later born class members are excluded from taking as members of the class
(3) later born class members are not excluded from taking as members of the class if “gestation” principle applies
Class gifts: when class closes
(1) outright gift by will: closes on testator’s death
(2) A life estate or an income interest with a remainder to a class of beneficiaries: class closes at death of life tenant or income beneficiary
Simultaneous death
(1) absent a will provision to the contrary if a person dies under circumstances where there is insufficient clear and convincing evidence to prove that such person is to have survived the other by 120 hours, the property of that person is distributed as though he or she predeceased the other person
(2) jointly-held property passes as though each co-owner survived the other; severs right of survivorship
Changes in testator’s family after will is executed: testator marries
(1) marriage after the execution of a will has no effect on the validity of the will, but it may affect gifts and dispositions under the will
Changes in testator’s family after will is executed: testator unmarries
(1) if court renders a final decree of divorce, annulment or separation after the execution of a will, all gifts and fiduciary appointments in favor of former spouse are revoked by operation of law (read will as if spouse predeceased testator)
(2) exclusions: (i) gifts and fiduciary appointments in favor of the issue of a former spouse are not revoked; (ii) an appointment of the former spouse as guardian of the couple’s children is not affected; (iii) if the couple reconcile and remarry, all provisions in favor of the former spouse are restored
Changes in testator’s family after will is executed: testator’s child is born or adopted after the will is executed
(1) EPTL only protects pretermitted children who are: (i) not provided for by any settlement; (ii) neither provided for nor mentioned in the will
(2) If the testator had one or more children when the will was executed and no provision is made for any children, the pretermitted child inherits nothing (equal footing with all children)
(3) if will made gifts to other children, pretermitted child shares in the amount to other children as if class gift was made
(4) if it appears that the testator’s intention was only to make a limited provision to the children living at the time the will was executed, the pretermitted child takes his intestate share
Changes in testator’s family after will is executed: testator had no children when the will was executed
(1) child gets intestate share
Negative bequests: common law rule
(1) when a will does not make a complete distribution of the estate, words of disinheritance in the will are ineffective with respect to property passing by intestacy
Negative bequests: New york’s negative bequest rule
Words of disinheritance are given full effect in partial intestacy
Lifetime gift to beneficiary: common law
A lifetime gift to a beneficiary named in testator’s will was presumptively made in partial or total satisfaction of the legacy, to be taken into account when distributing the testator’s estate at death
Lifetime gift to beneficiary: NY rule
No satisfaction of legacy unless proved by: (i) contemporaneous writing made at time of gift; (ii) signed by donor/donee
Incorporation by reference
NY rule: does not recognize incorporation by reference to an extrinsic document; everything must be formally executed
Acts of independent significance (nontestamentary acts)
(1) Acts performed by the testator after the will is executed which have a purpose or motive independent of any testamentary purpose are given full effect when distributions are made
(2) Title documents can only be transferred as mandated by law
Classification of gifts:
(1) specific gift
(2) demonstrative legacy: general amount, but testator designates a specific source from which the amount is to be paid
(3) general legacy: general amount
(4) residuary disposition
(5) intestate property
Abatement (reduction) of legacies: rule
If there are more claims against the estate than there are assets to cover all gifts made under the will, the gifts under the will abate
Abatement (reduction) of legacies: order of abatement
(1) intestate and residuary property
(2) general legacies (pro rata)
(3) demonstrative legacies (pro rata)
(4) specific gifts
(5) items that qualify for estate tax marital deduction
Ademption failure of the gift: rule
If a testator makes a specific gift of property and the property cannot be found or is no longer owned by the testator at the time of her death, the gift fails under doctrine of ademption
Ademption failure of the gift: reason demonstrative legacies do not adeem
Turn into general legacy
Ademption failure of the gift: statutory exclusions
(1) Insurance proceeds for lost, damaged or destroyed property; Beneficiary takes insurance proceeds to extent paid after death
(2) Proceeds received under an executory contract; beneficiary gets proceeds which are paid after death
(3) Proceeds from a guardian or conservator’s sale of a specifically bequeathed property; beneficiary is entitled to receive money or property into which proceeds from sale or transfer can be traced; if no tracing, ademption
Specific gifts of encumbered property
(1) under common law if a testator makes a specific gift of property that is subject to a mortgage or other lien on which testator is personally liable, beneficiary is entitled to have lien exonerated
(2) NY rule: liens on specifically devised property are not exonerated unless will directs exoneration
Bequests of shares of stock: publicly-traded
General gifts that don’t adeem
Bequests of shares of stock: closely-held corporation
Specific gifts which adeem if they don’t exist
Bequests of shares of stock: stock splits
Treated as a specific bequest for purpose of split
Non-probate assets (not subject to disposition by will or intestacy): categories of non-probate assets
(1) property passing by right of survivorship
(2) property passing by contract (includes life insurance)
(3) property held in trust
(4) property over which decedent held power of appointment
Elective share: basic calculation
(1) Greater of $50,000 or 1/3 of estate
(2) beneficiaries of testamentary substitutes and or intestate distributees contribute pro rata
Elective share: testamentary substitutes (LEG UP)
(1) totten trusts
(2) survivorship estates (joint tenancies, joint bank accounts, survivor bank accounts)
(3) Lifetime transfers with strings attached: (i) transfers where testator retains the power to revoke, invade, consume, or dispose of the principal or name new beneficiaries; (ii) transfers made during the marriage where testator retained a life estate
(4) employee pension, profit-sharing, and deferred compensation plans
(5) gifts made within one year of death: (i) gifts in excess of $14,000; (ii) gifts causa mortis (made in fear of impending death)
(6) U.S. government bonds and other POD (payable on death) arrangments
(7) powers of appointment: testator held a presently exercisable general power of appointment
Elective share: not testamentary substitutes (LOGPIT)
(1) life insurance
(2) one half of qualified pension and profit-sharing benefits
(3) gifts of less than 14,000 except gifts causa mortis
(4) premarriage irrevocable transfers
(5) irrevocable transfers made more than one year before death
(6) transfers (irrevocable) made during marriage
Elective share: calculating elective share w/r/t testamentary subs
(1) full value of testamentary substitute except: (i) survivorship estates involving testator and third party (consideration furnished test); (ii) survivorship estates involving the testator and the surviving spouse (half is a t sub, half in half out)
Elective share: procedural rules
(1) notice of election must be filed within 6 months after letters are issued
(2) if no estate administration, notice of election must be filed no more than two years after testator’s death
(3) Personal right, does not belong to heir
(4) Waiver: can be wiaved without consideration in writing signed and acknowledged before a notary public: (i) before or after marriage; (ii) as to a particular will or testamentary sub, or as to all wills and testamentary subs in general
Elective share: multi-jurisdictional problems
(1) only a spouse of decedent domiciled in NY at the time of death has a right of election
(2) exception if surviving spouse can claim an elective share with regard to the testator’s real property in NY if the testator expressly states in will that the disposition of property is to be governed by NY law
Elective share: exempt property
(1) in addition to elective share, surviving spouse is entitled to exempt personal property up to 92,000
(2) includes: (i) one car up to $25,000; (ii) furniture, appliances, electronics up to $20,000; (iii) cash allowances up to $25,000; (iv) animals, farm machinery, tractors up to $20,000; (v) books, dvds, cds, software up to $2,500
Elective share: circumstances disqualifying spouse from taking elective share (DISMAL)
(1) divorce
(2) Invalid divorce procured by surviving spouse
(3) separation decree
(4) marriage is void
(5) abandonment or lack of support
Powers of appointment: definitions
(1) donor: creator of power
(2) donee: person given power to use
(3) power of appointment: authority create in a donee enabling the donee to designate within limits prescribed by the donor, the persons who shall take the donor’s property and the manner in which they take
(4) takers in default: persons who take property if donee fails to exercise power
Powers of appointment: classification of powers (remember to always classify the power first)
(1) general power of appointment: donee can appoint to herself, creditors or estate as if owned property herself
(2) special power of appointment: donee cannot appoint to herself
(3) presently exercisable power of appointment: donee can exercise right now, in lifetime
(4) testamentary power of appointment: donee can appoint only by will
Powers of appointment: elective share
(1) general presently exercisable power of appointment is a testamentary substitute
(2) general testamentary power of appointment is not a testamentary substitute
(3) special power of appointment is not a testamentary substitute
Powers of appointment: donee’s creditor’s rights to donor’s property
(1) creditors can reach assets in general presently exercisable power of appointment
(2) cannot reach special presently execisable power of appointment
(3) cannot reach general testamentary unless party was both donor and donee or exercised the power in favor of the estate
Powers of appointment: RAP step by step analysis
(1) identify the type of power
(2) is power itself valid
(3) are the interest created by the power valid
Powers of appointment: RAP how are interests creation measure
(1) Date of the instrument creating the power, not date of powers execised for remainder interests
(2) date of exercise of power for income interests
Powers of appointment: RAP checklist
(1) identify the interest
(2) determine when you are measuring from the date of creation or date of exercise
(3) determine whether the second look doctrine applies (general testamentary or special power of appointment)
(4) give the RAP rule
(5) find a life in being and run with it
(6) most likely apply the NY reform statute
(7) give suspension rule
(8) look to see if there is an income interest in an unborn beneficiary, and state that the income interest is void
(9) go further giving statutory spendthrift rule (income beneficiaries cannot assign or convey their income interest) and state that the income interest is void (may be saved by NY reform)
(10 don’t forget to deal with remainder interests
Will contests: Mistake
(1) absent suspicious circumstances it is conclusively presumed that testator read the will and intended consequences
(2) plain meaning of will will not be overturned by extrinsic evidence
Will contests: latent ambiguity
(1) misdescription not evident by looking at the will
(2) extrinsic evidence is admissible to clarify or find the meaning of the testator’s words
(3) if extrinsic evidence does not cure the ambiguity the gift fails because there is no ascertainable beneficiary
Will contests: patent ambiguity
(1) an obvious error on the face of the will
(2) Extrinsic evidence is admissible: facts and circumstances; testator’s statements to attorney who prepared the will
(3) evidence of testator’s declarations of intent to third parties is not admissible because won’t allow 3rd party evidence that contradicts what the will says
Will contests: conditional wills
(1) expressly provides that it will be operative only if a condition is met
Will contests: contract to make a will (joint will)
(1) will of 2 parties in 1 document
(2) Can only be established by an express statement of intent that the will’s provisions intended to be a contract between the two
(3) What if party breaches by executing a later will: (i) probate leases new will; (ii) impose constructive trust in favor of intended beneficiaries
Will contests: testamentary capacity
(1) must have capacity to: (i) understand nature of act; (ii) nature and and approximate value of property; (iii) know natural object of bounty; (iv) understand disposition of gifts
(2) capacity to make will is less than any other legal instrument (could have capacity even if adjudicated incompetent)
Will contests: insane delusion
Persistent belief in supposed facts that are against all evidence probability and control which cause or effect the testor’s testamentary act
Will contests: undue influence
(1) what you need to prove: (i) existence and exertion of an influence; (ii) effect of such influence was sufficient to overpower the mind and will of testator; (iii) product is a will or gift in a will which would not have happened but for that influence
(2) evidence of undue influence: (i) an opportunity to exert influence; (ii) susceptibility to undue influence due to age or illness; (iii) unequal dispositions
(3) inference of undue influence: (i) will makes a gift to one in a confidential; person was active in preparing the will
(4) court will always scrutinize gift to drafting attorney
(5) drafting attorney who is named executor must give written disclosure to testator that: (i) any person can be named an executor; (ii) executor receives a statutory commission; (iii) attorney will also be entitled to legal fees
Will contests: no-contest clauses
(1) a clause in the will that says if anyone objects the get nothing
(2) in NY clause is given full effect even if there was probable cause to challenge
(3) exceptions to NY rule: (i) claiming forgery or that the will was revoked by a later will; (ii) will contest is filed on behalf of infant or incompetent; (iii) construction proceeding to construe terms of will; (iv) objection to jurisdiction of court
(4) safe-harbor (discovery allowed); can be drafted around: (i) person who prepared will; (ii) attesting witness; (iii) will proponents; (iv) nominated executors
Powers of attorney, health care proxies and living wills
(1) power of attorney is a written authorization for an agent to act on behalf of the grantor of the power: (i) non-durable is revoked by operation of law at grantor’s death or incapacity; (ii) durable power extends beyond incapacity unless specific language
(2) health care proxy is a durable power of attorney: must be (i) in writing; (ii) signed by grantor; (iii) witnessed by at least two adults
(3) living will (vegetative state regarding health care): (i) life sustaining procedures; (ii) artificial nutrition or hydration; (iii) treatment to alleviate pain
