Wills

Procedure for Self-Proving Affidavit

(1) Affidavit can be signed at any time after the Will is executed, but is USUALLY signed at the same time as the Will. (2) Will is admissible to probate on the strength of the sworn recitals in the Affidavit UNLESS an interested party objects, in which case the formal rules of proof of due execution apply.

Test for Establishing Paternity for Purposes of Inheritance Rights of Nonmarital Children

(1) Father marries mother after the child's birth (legitimation by marriage); OR (2) An order of filiation in a paternity suit is entered adjudicating the man to be the child's father; OR (3) The father files a witnessed and acknowledged (before a notary public) affidavit of paternity with the putative Father Registry; OR (4) Paternity is established by clear and convincing evidence (which can include: DNA/genetic marker test, openly and notoriously acknowledging the child as his own (by saying "this is my kid" or putting name on a birth certificate), participating in school activities, giving gifts, etc.); monetary support is not enough

To Determine Whether Power of Appointment Violates RAP and/or Suspension Rule: Step-by-Step Analysis

(1) Identify the Power of Appointment (2) Is the power itself valid? (3) Are the interests created by the power valid?

Reasons for having an Attestation Clause

(1) If the witness has a bad memory: "Probate of a Will does not turn on the memory of attesting witnesses." (2) If the witness is hostile: i.e. if the witness recalls signing a Power of Attorney or some other document, the Attestation Clause can be used to rebut the witness' evidence.

Four Statutory Exclusions to Ademption

(1) Insurance Proceeds for Lost, Damaged or Destroyed Property: Beneficiary takes insurance proceeds to extent they are 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 Specifically Bequeathed Property: If person who executes a will that makes specific dispositions later comes incompetent and committee or conservator sells specifically devised assets, beneficiary entitled to receive money or property into which proceeds from sale or transfer can be traced. If cannot trace --> ademption (4) Change of Form But Not Substance: If there is a change of form but no change of substance, ademption does not apply (i.e. where T's will make a gift of his interest in a partnership and thereafter the business is incorporated, beneficiary takes all of T's interest in the business)

Grounds for Denial of Probate

(1) Lack of testamentary capacity (2) Undue influence (3) Fraud (4) Mistake (5) Defective Execution (6) Valid Revocation

Procedural Rules for Election

(1) Must be made within 6 months of letters of administration and 2 years of death (2) Election can be revoked (3) Right of election personal to surviving spouse (if surviving spouse dies, personal representative cannot exercise right of election) (4) All beneficiaries and intestate distributees contribute on pro rata basis to satisfy elective share (5) Surviving spouse's election is superior to ex-spouse's claim under separation agreement

If Testator Had Child or Children When Will Executed, Pretermitted Child Gets:

(1) Nothing if other children not provided for (2) Shares in gift to his siblings if substantial gifts made to other children (3) Intestate share if only limited provision made for existing children

Killers Cannot Inherit

(1) Person who wrongfully kills person cannot take under victim's will or intestacy (distributed as though killer predeceased victim) (2) No right of survivorship in tenancy by entirety property when one spouse kills another; joint tenant convicted of murder not entitled to take any money in joint bank account contributed by deceased joint tenant PROOF OF WRONGFUL KILLING: est. by conviction for murder, or first or second degree manslaughter; if no conviction, proof of wrongful killing must be established by PREPONDERANCE OF THE EVIDENCE

Order of Priority for Appointment as Administrator

(1) Surviving spouse (2) Children (3) Grandchildren (4) Parent (5) Sibling (6) Any other distributee

Requirements for Dependent Relative Revocation (DRR)

(1) Testator's revocation must be premised or dependent upon a mistake of law (i.e. that revocation of the later Will validates the prior Will) (2) 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.

Presumptions Re: Revocation of Wills

(1) When Will last seen in testator's possession or control not found after death, presumed that testator revoked Will by physical act; (2) When Will last seen in testator's possession or control found in damaged condition after testator's death (i.e. torn in two, presumed that testator was the one who revoked it by physical act Neither presumption arises if Will last seen with someone adversely affected by Will contents Evidence to rebut presumption of revocation admissible

When a Spouse Is Disqualified as Distributee

(1) final decree of divorce or annulment terminating marriage prior to decedent's death (2) final separation decree AGAINST surviving spouse (3) surviving spouse obtained divorce in another jurisdiction, not recognized as a valid divorce in New York (4) marriage bigamous or incestuous (5) surviving spouse abandoned deceased spouse, and abandonment continued until his or her death (6) surviving spouse failed or refused to support deceased spouse

Elective Share Calculation - Survivorship Estate Involving Testator and Surviving Spouse

1/2 is testamentary substitute.

Effect of Divorce, Legal Separation or Annulment on Will

A FINAL DECREE of divorce, legal separation, or annulment of a marriage following execution of a will revokes ALL testamentary provisions in favor of the former spouse, including fiduciary appointments as executor or trustee. Will takes effect as though former spouse had predeceased the testator. The statute also applies to certain nonprobate transfers, like life insurance policies. This rule does not apply to former spouse's RELATIVES -- will not revoke those gifts upon divorce, legal separation, or annulment All gifts and fiduciary appointments in favor of the ISSUE of the former spouse are NOT revoked by operation of law An appointment of the former spouse as GUARDIAN of the couple's children is NOT affected If couple reconciles and remarries ALL provisions in favor of former spouse are restored

Probate Proceeding

A Surrogate's Court proceeding to: (1) Judicially determine whether the testator's Will was validly executed and determine the intestate distributees; AND (2) Appoint the executor to administer the testator's estate

Foreign Wills Act

A Will is admissible to probate in New York if it was validly executed under: (1) The law of the state where the Will was Executed, regardless of the testator's domicile at that time; OR (2) New York law; OR (3) The law of the state where the testator was DOMICILED, either when the Will was executed or at death. Rules apply only to determine whether the Will is admissible to probate in New York. Once the Will is admitted to probate, New York law governs construction and application of its provisions.

Holographic Will

A Will that is entirely in the testator's handwriting and signed, but not witnesses --> VOID IN NEW YORK, but valid for members of the armed forces during declared or undeclared war (but void one year after discharge) and mariners at sea (but void 3 years after discharge) NOTE: If a holographic Will is valid and executed in another state, it will be admissible to probate in New York.

Nuncupative Will

A Will that is oral (could be filmed) --> VOID IN NEW YORK, but valid for members of the armed forces during declared or undeclared war (but void one year after discharge) and mariners at sea (but void 3 years after discharge)

When a Class Closes

A class closes on testator's death (if Will gives life estate or an income interest with a remainder to a class of beneficiaries, then class closes at death of the life tenant or the income beneficiary)

No-Contest ("In Terrorem") Clauses

A clause in a will that says if anyone objects to my will, they will get nothing IN MAJORITY OF STATES: Given full effect, unless Court finds that contest was brought in good faith and with probable cause NEW YORK RULE: enforced even if no probable cause for contesting will EXCEPTIONS TO NEW YORK RULE: No-Contest not enforced if: (1) claiming forgery or that will was revoked by later will (2) filed on behalf of infant or incompetent (3) objection to jurisdiction of court in which will offered for probate (4) action to construe will terms (5) contest filed but subsequently withdrawn (6) discovery to see if grounds to contest will

General Power of Appointment

A donee can appoint to self, her creditor, or her estate --> as if she owned the property herself Donee's creditors can reach property subject to a presently exercisable general power, but cannot reach property subject to a testamentary general power unless the donee is also the donor General presently exercisable power of appointment also a testamentary substitute for purposes of elective share --> surviving spouse can reach trust property General testamentary power of appointment NOT a testamentary substitute

Separation Decree

A final decree of separation was rendered against the surviving spouse. This disqualifies a spouse from taking their intestate share (the surviving spouse is not disqualified if the final decree of separation was rendered against the deceased spouse). A separation agreement does not result in disqualification unless there is specific language in the agreement waiving the surviving spouse's rights under the EPTL.

General Gift

A general amount given to beneficiary "I give the sum of $5 million to my daughter Diane."

Demonstrative Gift

A general amount, but the testator designates a specific source FROM WHICH the amount is to be paid. "I bequeath $5 million, to be paid from the proceeds of the sale of my GM stock, to my daughter Diane." A demonstrative gift/legacy will turn into a general legacy if there is no cash available from the source designated.

Bequests of Shares of Stock and Other Securities

A gift of shares of stock in a closely held corporation is presumptively a SPECIFIC BEQUEST. (they adeem if they don't exist) A gift of shares in a publicly traded corporation is classified as a GENERAL LEGACY in the absence of language indicated a contrary intent (If testator bequeaths, "my...stock" --> specific gift

Satisfaction of Legacy

A lifetime gift to a Will beneficiary.

Decedent

A person who dies without a will.

Safe Harbor Provisions

A person who is considering contesting will that contains a no-contest clause may examine in discovery (1) Person who prepared will (2) attesting witnesses (3) will proponents (4) nominated executors

Executor

A personal representative named in the Will to administer the estate of a testator

Administration Proceeding

A proceeding initiated by a distributee to appoint an administrator and administer the estate of the decedent.

Specific Gift

A specific item bequeathed to the beneficiary "I devise Blueacre (my computer) to my son Seth."

Death of a Beneficiary During the Testator's Lifetime

A testator cannot make a gift to a deceased person

Contractual Wills

A will of two people in one document A contract to make a will or not revoke a will can only be established by an express statement of intent that the will's provisions are intended to constitute a contract between the parties Rights of beneficiaries of a contractual will are superior to rights of surviving spouse to take elective share Court will not find that contract of non-revocation was intended merely b/c joint will uses possessive pronouns (w, us, our) in making dispositions of the combined estates If one spouse predeceases, and other spouse remarries and executes new will --> submit 2nd will to probate, creating constructive trust for beneficiaries of first will, but assets in 2nd will not assigned in first will can be probated

Advancements

AT COMMON LAW: A lifetime gift to a child was presumptively an advancement (i.e. advance payment) of his intestate share, to be taken into account when distributing the estate at death. NEW YORK RULE: New York has rejected the "advancement" presumption by statute. Thus, there is no advancement unless proven by: (1) a contemporaneous writing made at the time of the gift, and (2) signed by donor or donee

Surviving Residuary Beneficiaries Rule

Absent a contrary provision in the Will, if the testator's residuary estate is: (1) Devised to two or more persons; AND (2) the gift to one of them fails or lapses for any reason; AND (3) the anti-lapse statute does not apply, THEN, the other residuary beneficiaries take the entire residuary estate in proportion to their interests NOTE: Anti-lapse trumps the "surviving residuary beneficiaries" rule, so if predeceasing beneficiary was testator's issue, brother or sister, then issue of predeceasing beneficiary take their share

Order of Abatement

Absent a provision in the Will, the order in which a testator's property abates is: (1) Intestate property (2) Residuary estate (3) General gift (4) Demonstrative gift (5) Specific gift (6) Items that qualify for estate tax marital deduction

Mistake

Absent suspicious circumstances, it is conclusively presumed that testator read will and intended its consequences. Thus, plain meaning of the will won't be overturned by extrinsic evidence Wrong will signed --> Relief Granted Mistake in Inducement (but no fraud or undue influence) --> No Relief Granted Mistake as to Contents of Will --> Relief May be Granted Extrinsic Evidence Admissible to Cure Ambiguity

Acts of Independent Significance - Nontestamentary Acts

Acts performed by testator AFTER the will is executed which have purpose or motive independent of any testamentary purpose are given full effect when distributions are made. EXAMPLE: Terrence executed a will that bequeathed "the automobile that I own at my death" to his nephew Nicholas --> At death, Terrence owns a Porsche --> Nicholas gets Porsche For all tangible property except title documents (i.e. deeds, stock certificates, bank passbooks --> can only be transferred as mandated by law)

Adopted Child

Adopted child treated same as birth child; inheritance rights to birth parents are cut off TWO EXCEPTIONS: (1) if birth parent marries adopting parent, adopted child treated as child of both birth parents and of adoptive parent (2) if child adopted by family member, therefore related to decedent by both birth relationship and adoption, child inherits only under birth relationship unless decedent is adopting parent, in which case child inherits under adoptive relationship only

Inheritance Rights of Adopted Children

Adopted children and their issue have full inheritance rights from the adopted family and vice versa, if the adopted child dies first. However, the child has NO inheritance rights from the birth parents or other members of the birth family. EXCEPTION: A child adopted by the spouse of a birth parent can inherit from the adopting parent and either of the birth parents. (i.e. if a parent dies, the surviving parent remarries, and the new spouse adopts the children). However, the birth family of the deceased cannot inherit from the children.

Issue

All persons who have descended from a common ancestor, including those in direct line of inheritance with the decedent (i.e. children, grandchildren, etc.) - distinguishable from "children"

Interested Party

An intestate distributee or Will beneficiary (current or prior) who is adversely affected by the admission of the Will to probate.

Alterations on Face of the Will

Any addition, alteration, interlineation, deletion made after will has been signed and attested is ineffective to change will unless will is reexecuted w/proper formalities (newly signed & attested)

Renunciation of Intestate Share, Gift, or Transfer

Any interest can be disclaimed, in whole or in part, including testamentary substitutes, such as life insurance proceeds or Totten trust accounts. Disclaimer = irrevocable; can be made on behalf of infant, incompetent, or decedent, but not effective unless approved by court having jurisdiction over estate of infant, incompetent or decedent; agent under durable power of attorney can disclaim on behalf of principal w/court approval Disclaimed interest passes as though disclaiming party predeceased decedent. To disclaim: (1) Must be in Writing, Signed, and Acknowledged (before notary public) (2) Must be Accompanied by Affidavit (indicating no consideration was received in making disclaimer), and must be Filed with Surrogate's Court w/in NINE MONTHS after (a) date of transfer or (b) beneficiary's 21st birthday

Standing to Contest Will

Any person with economic interest that would be adversely affected by will's admission to probate may file objections to probate of will or any portion thereof

Attestation Clause

Appears below the testator's signature line and above the witnesses' signature lines, and recites all the elements of due execution: "On the above date, the testator declared to use that the foregoing instrument was her Will and she asked us to serve as witnesses thereto. She then signed the Will in our presence, we being present at the same time. We then signed the Will as attesting witnesses." Clause is prima facie evidence of the facts presented, but NOT a substitute for live testimony (merely corroborative of the witnesses' testimony. A Will proponent must still call the witnesses to testify or prove their signatures) NOT legally required in any state PRESUMPTION OF DUE EXECUTION

Lost Wills Statute

Applied in DRR and with truly "lost" Wills "Lost Will" proponent must prove: (1) The "lost" or later Will was duly executed (7 pt. test) (2) The "lost" or later Will was not "revoked" (either (a) overcome the presumption of revocation that arises from the Will's non-production; OR (b) prove that the revocation should be disregarded under DRR) (3) The Will's provisions are "clearly and distinctly proven by each of at least two credible witnesses, or by a copy or draft of the Will proved to be true and complete."

Rule for Predeceased Children

Applying the Rule: (1) Property is divided into as many shares as there are issue at the FIRST GENERATIONAL LEVEL at which there are survivors (2) All living issue at the first generational level take on share each (3) The shares of the deceased issue at the first generational level are combined and then divided equally among the takers at the NEXT GENERATIONAL LEVEL in the same way RULE OF THUMB: Issue in the same generation will always have equal shares.

Health Care Proxy

Appoints agent to make health care decisions on behalf of principal and does not become effective until principal becomes incapacitated; must be: (1) in writing; (2) signed by principal or another at his direction; (3) witnessed by two adults Can appoint anyone except an owner, operator, or employee of a healthcare facility at which the principal is receiving care, unless that individual is related to the principal

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 Estates Powers and Trusts Law (EPTL) Even if there's a Will, partial intestacy may result if the gift cannot be bequeathed and the Will has no residuary clause. EXAMPLE: "I give $5 million to my good friend, Frank Fried." Frank Fried predeceased me, and his issue doesn't qualify for anti-lapse b/c he's my friend

Probate Estate

Assets held in the testator's name ALONE that do not pass by operation of law and which the executor administers in accordance with the testator's Will.

Self-Proving Affidavit

Attached to the back of the Will, and is a mechanism set forth by the legislature which recognizes that the validity of most Wills is not contested. Witnesses sign a sworn statement in the presence of an attorney that recites all the statements they would make if called to testify in court. This is a substitute for live testimony of witnesses. It serves the same function as a deposition or an interrogatory (i.e. it is sworn testimony) NOT legally required in any state

Power of Appointment

Authority created in a person (donee) to designate, within the limits prescribed by the creator of the power (donor), the persons who will take the property and the manner in which they will take it When donee exercise power, it is deemed to relate back to the donor's will so that appointee takes title directly from donor (b/c donee acts as donor's agent) Power of appointment personal to donee -- cannot delegate it or assign it Can be exercised by any instrument effective to transfer title to property

Nonmarital Child

Automatically inherits from mother in all cases Only gets inheritance rights from father and father's kin if: (1) child legitimated by father's marriage to mother (2) order of filiation entered during father's lifetime (3) father files acknowledged, witnessed statement of paternity w/Putative Father Registry (4) paternity established by CLEAR AND CONVINCING evidence (i.e. DNA evidence, but child support insufficient)

Undue Influence

BURDEN OF PROOF: On Will Contestant Contestant must prove by FAIR PREPONDERANCE OF THE EVIDENCE: (1) Existence and exertion of an influence (2) Effective operation of such influence as to subvert the mind of the testator at the time of execution of the will (3) Execution of a will that would not have been executed but for such influence The testator's mind must be OVERPOWERED Insufficient Evidence of Undue Influence: (1) Opportunity to exert the influence (2) Susceptibility to influence b/c of age or illness (3) Unequal dispositions not enough Inference of Undue Influence if: (1) Will makes gift to one in a confidential relationship; AND (2) Person was active in preparing Will If shown, beneficiary must show that gift was freely made (w/more than her own testimony)

Lack of Testamentary Capacity

BURDEN OF PROOF: Will Proponent Testator must have sufficient capacity to: (1) Understand nature of act he is doing; (2) Know nature, condition, and extent of his property; (3) Know names of, and relationship to, natural objects of his bounty (i.e. who he's giving property to) (4) Understand the scope and meaning of the provisions of his will Even if testator had mental problems (i.e. incompetent and had a guardian), jury could still find that will was written during LUCID INTERVAL) Capacity must exist at TIME OF EXECUTION of will --> may be invalid if made during insane delusion, but drunkenness, eccentricity, or physical infirmity do not constitute incapacity

Durable Power of Attorney

By statute, power of attorney = durable (survives disability or incapacity of the principal) unless it expressly provides that it is terminated by the principal's incapacity

Incorporation by Reference

COMMON LAW: unattested docs. not present at time of will execution can be incorporated if (1) in existence at date of will's execution and (2) identifiable from will w/reasonable certainty NEW YORK: Cannot incorporate by reference in New York unless: (1) refer to gifts made by another person's will (2) gift by will to inter vivos trust executed prior to or concurrently w/will (3) gift to charitable corporation that incorporate that charity's documents (4) attached lists disposing of tangible personalty

Disclaimer after Acceptance of Property

Cannot disclaim after beneficiary has accepted distribution of property or any of its benefits, entered into contract to transfer or mortgage property, or exercised any control over property Acceptance of death benefits under pension plan does not preclude disclaimer of gifts under will

Republication by Codicil

Codicil may revive a previously revoked will only when earlier will is properly executed. Cannot republish defectively executed earlier will or a will revoked by physical act unless the codicil contains the provisions of the earlier instrument

Estates Powers and Trusts Law (EPTL)

Contains the rules of descent and distribution of property (both real and personal) in intestacy, which typically apply when: (1) the decedent left no will or did not properly execute it; (2) the will does not make a complete distribution of the estate (typically b/c of poor drafting by an attorney) and results in partial intestacy; or (3) a distributee successfully challenges the will, and the will is denied probate

Spouses Disqualified from Exercising Election Rights

DISMAL

Circumstances Disqualifying a Spouse from Taking Intestate Share

DISMAL (1) Divorce or annulment (2) Invalid Divorce (3) Separation Decree (4) Marriage is Void (incestuous, bigamous, or via fraud) (5) Abandonment or Lack of Support (surviving spouse abandoned or refused to support the deceased spouse) In NY, no "slayer statute", but if you kill your spouse unjustifiably, then the court will create a constructive trust (if there is joint property btwn. the husband and wife, the court severs joint tenancy and the slayer spouse gets the amount they put in).

Per Capita Distribution

Default distribution in New York in both intestacy and in a will (but can always put in words to the contrary).

Exoneration

Discharge of any encumberances on specifically bequeathed property using the residuary estate

Subsequent Marriage and the Will

Does not affect will b/c surviving spouse has protection of the elective share statute

Testamentary Power of Appointment

Donee can appoint only by will

Presently Exercisable Power of Appointment

Donee can exercise power now in their lifetime, maybe in inter vivos trust

Putnam Scrutiny

Even if no objection filed, Surrogate's Court automatically inquires into whether a bequest to drafting attorney was voluntarily made

Bequests to Will's Drafting Attorney

Even if no objection filed, Surrogate's Court automatically inquires into whether a bequest to drafting attorney was voluntarily made - Putnam Scrutiny NEW YORK LAW: If attorney drafts a will that names herself (or her employee) as executor, she must disclose to client that: (1) any person can be named executor (2) executors are entitled to statutory commission; (3) absent execution of a disclosure acknowledgment, the attorney's commission as executor will be ONE HALF OF THE STATUTORY COMMISSION (4) attorney also will be entitled to attorney's fees for any legal services rendered to the estate Client must sign written acknowledgment in front of two witnesses; court may waive disclosure requirement for good cause shown Disclosure must be separate doc.

Class Gift Dispositions Subject to Condition of Reaching Given Age

For present gift to class contingent on members reaching designated age -- class remains open until first member of class reaches designated age, at which time class closes For future gift to class continent on members reaching designated age -- class remains open until: (1) preceding estate terminates, and (2) first class member reaches designated age

Gift Conditioned on Survival

Gift in will conditioned on beneficiary's surviving the testator precludes application of anti-lapse statute

New York Anti-Lapse Statute

If a beneficiary dies during the testator's lifetime, the gift does not lapse but VESTS in the deceased beneficiary's ISSUE if BOTH of the following conditions are satisfied: (1) the predeceased beneficiary was the testator's issue, brother, or sister (2) the predeceased beneficiary leaves issue who survive the testator ISSUE includes: children, nonmarital children, adopted-out children specifically named in will (w/respect to step-children, they are not issue, but common law lapse rule applies) BROTHERS AND SISTERS: does not include brothers-in-law and sisters-in-law NOTE: A condition to a bequest (i.e. "if he survives me") trumps the anti-lapse statute

Anti-Lapse Statute

If a beneficiary dies during the testator's lifetime, the gift to the beneficiary lapses (fails) UNLESS the gift is saved by the state's anti-lapse statute (each state has their own) NOTE: A condition to a bequest (i.e. "if he survives me") trumps the anti-lapse statute

Failure to Exercise General Power

If a donee does not exercise a general power of appointment and there is no gift in default, the property passes to the DONOR'S heirs or residuary legatees

Partial Ademption

If a portion of the specifically bequeathed property remains in the estate at death, that portion does not adeem, but passes to the specific beneficiary

Ademption

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 the doctrine of ademption (w/o regard to testator's probable intent) ADEMPTION ONLY APPLIES TO SPECIFIC GIFTS

"At the end thereof" Signature Rule

If a testator signs in the middle of a document, the words following the signature are not given effect. However, an entire Will is declared invalid if the matter following the signature is so material that giving effect to that above the signature and not giving effect to that below the signature would defeat the testator's intention.

Suppression of Lost Will

If a will is suppressed or destroyed by someone who would benefit under a prior will or intestacy, and the "lost" will cannot be proven, the remedy is a CONSTRUCTIVE TRUST in favor of the testator's intended beneficiaries

Disclaimer & Shares of Other Disputees

If disclaimer would result in distribution of property by representation, interest passes as though disclaimant died on the same date as, but immediately after, decedent (see ex. on p. 5 of wills) THIS APPLIES ONLY FOR PURPOSE OF PRESERVING REPRESENTATIONAL SHARE OF DISCLAIMANT WHEN "PER CAPITA AT EACH GENERATION RULE" APPLIES --> for all other purposes, disclaimant deemed to have predeceased decedent.

Intestate Not Survived by Spouse or Issue

If no spouse or issue survive, estate passes to decedent's parents equally if both survive; all to the surviving parent if one survives Parent cannot inherit from his child if he failed or refused to support the child or abandoned the child while the child was under 21, whether the child dies before or after age 21. If no parents --> per stirpes to siblings (no distinction btwn. whole & half siblings) If no siblings --> half to maternal grandparents, half to paternal grandparents If grandparents dead --> to their issue (up to grandchildren/decedent's first cousins) If no grandchildren (grandparent's issue) --> great-grandchildren; one-half in equal shares passes to great-grandchildren on maternal side, and one-half on paternal If none of above, then estate ESCHEATS TO THE STATE

Cy Pres

If testator expressed general charitable intent as reflected in will, but it has been frustrated b/c the specific direction in will is not possible, court will select another beneficiary whose work most closely approximates the testator's specific charitable intent. Court will looks to testator's primary purpose, but potential beneficiaries have no standing to sue as they have no greater interest than the general public. Attorney general is charged with duty to supervise and enforce charitable bequests

Abatement of Legacies

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 will abate; don't give effect to gifts so that creditors' claims can be satisfied

"Whichever is Least" Rule

If there is an interested witness that would be an intestate distributee if the testator died without a will, then the witness-beneficiary takes the lessor of (1) the bequest under the will; OR (2) his intestate share

Satisfaction of Legacies (Will)

In New York, lifetime gift to beneficiary not treated as satisfaction of the legacy unless proven by: (1) writing, contemporaneous with gift (2) writing signed by donor evidencing her intention that give be treated as advancement OR donee acknowledging that such was intention SAME AS ADVANCEMENT IN INTESTACY

Advancement (Intestate Succession)

In New York, lifetime gift to distributee not treated as advancement unless proven by: (1) writing, contemporaneous with gift (2) writing signed by donor evidencing her intention that give be treated as advancement OR donee acknowledging that such was intention If advancement found --> added to net value of estate for purpose of computing intestate share; intestate share of advancee reduced by amount advanced (if greater than intestate share, does not have to give back excess)

Satisfaction of Pretermitted Child's Intestate Share

In satisfying pretermitted child's intestate share, bequests to will beneficiaries are reduced pro rata. Abatement rules applicable to creditor's claims DO NOT APPLY.

Will

Instrument to take effect on death that is revocable until death and that: (1) makes disposition of property; (2) directs how property shall not be disposed of; (3) disposes of testator's body or any party thereof (4) exercises power of appointment (5) appoints fiduciary Will has no legal effect until testator's death

If Testator Had No Children When Will Executed, Pretermitted Child Gets:

Intestacy share he/she would have inherited had testator died w/o will

NON-Testamentary Substitutes

LOGPIT L: Life insurance - whether payable to surviving spouse or third party O: One-half qualified pension and profit-sharing benefits (if testator named beneficiary before Sept. 1, 1992 and did not change beneficiary thereafter) G: Gifts of less than $14,000 made w/in one year of death (except gifts causa mortis) P: Pre-marriage irrevocable transfers (i.e. gift to friend prior to marriage) I: Irrevocable transfers made more than one year before death (transfers where testator did not retain power to revoke, invade, consume, or dispose of principal, or name new beneficiaries) T: Transfers (irrevocable) made during marriage, where testator retains life estate (if irrevocably transferred before Sept. 1, 1992)

Codicil

Later amendment or supplement to a will executed with the same formalities In cases in which it is important to determine the date on which the will is deemed to have been executed, the will is treated as having been executed on the date of a validly executed codicil thereto.

Special Power of Appointmentt

Limited Power of Appointment Donee CANNOT appoint to self --> typically limited class to whom donee can appoint Donee's creditors cannot reach property subject to a special power. This is true even if the donee of the special power is also the donor, unless the transfer was in fraud of the donor-donee's creditors

Per Stirpes Distribution

MOST STATES; The issue of a predeceased child takes the share that the predeceased child would have taken, if alive. (not distributed evenly among takers in a generation)

Effect of Disclaimer on Medicaid Recipient

Medicaid recipient cannot renounce interest in decedent's estate w/o being denied Medicaid eligibility

Latent Ambiguity

Misdescription --> error not evident by looking at the will EXAMPLE: Thomas's will provides: "I give $10,000 to my nephew John Paul Jones." Thomas has a nephew named James John Jones, and a nephew named Harold Paul Jones, but no nephew named John Paul Jones. Extrinsic evidence admissible to clarify or find meaning of testator's words, including: (1) "Facts and circumstances" evidence (2) Evidence of testator's declarations of intent to third parties (3) Evidence of testator's statements to attorney who prepared Will If extrinsic evidence doesn't clarify --> gift fails

Fraud in the Execution

Misrepresentation as to nature or contents of the instrument (i.e. testator is told he is signing power of attorney, but it is his will)

Wills Executed in Duplicate

Must account for both copies; if cannot, will proponent must prove that either: (1) missing duplicate was in existence at time of testator's death, or (2) absence doesn't flow from act of decedent

Rules for a Valid Disclaimer

Must be: (1) in writing, signed and acknowledged (before a notary public); AND (2) accompanied by a separate affidavit stating that no consideration was received for disclaiming; AND (3) irrevocable; AND (4) filed with the Surrogate's Court w/in 9 mo after the date of death

Suspicious Circumstances

Must show testator knew contents of will If circumstances indicate that testator might not have known content of will, will proponents have burden of establishing that testator knew of contents by reading will or hearing it read

Specific Gifts of Encumbered Property

NEW YORK RULE - No Exoneration of Liens: Liens on specifically bequeathed property are NOT exonerated (paid off from residue) unless the will directs exoneration. A general direction in the will calling for payment of the testator's debts is not considered an expression of intent that liens be exonerated. EXAMPLE: Proceeds for life insurance policy payable to named beneficiary, but if insured borrowed against value of policy, beneficiary takes subject to lien, with no personal liability. If beneficiary does not pay off debt, creditor will foreclose, so beneficiary under practical compulsion to pay under COMMON LAW beneficiary is entitled to have lien exonerated

Gifts by Implication

NEW YORK RULE: court can find that testator intended to make gift even though will does not contain language that expressly makes gift

Rights of Unmarried Cohabitants

New York does not permit common law marriage, but recognizes common law marriage validly contracted in a state that permits them --> enables surviving spouse to inherit or file for elective share in New York

Tortious Interference w/Inheritance

New York doesn't recognize right of action for tortious interference w/prospective inheritance; proper recourse = constructive trust

Privity of Contract - Will Preparation

New York have privity of contract defense Attorney only owes duty to client --> if client dead, intended beneficiaries cannot sue; BUT Personal representative can sue attorney for losses to estate resulting from negligent estate planning advice

Dependent Relative Revocation (DRR)

Not commonly applied in New York, so typically should argue both sides RULE: DRR permits a revocation of a later Will to be disregarded. The effect would be to permit probate of the later Will. For DRR to be applied, disposition that results from disregarding revocation must come closer to effectuating what the testator tried (but failed) to do than would an intestate distribution.

Patent Ambiguity

Obvious error on face of the will EXAMPLE: Sluggo's will provides "I give the sum of twenty-five dollars ($25,000) to my good friend Steve." Extrinsic evidence admissible, including: (1) "Facts and circumstances" evidence (2) Evidence of testator's statements to attorney who prepared Will Evidence of testator's declarations of intent to third parties NOT admissible

Burden of Proof of Due Execution of Will

On will proponent; whether will validly executed question of fact to be determined by court (or jury)

Springing Power of Attorney

One that is effective at future time or upon the occurrence of a specified contingency (i.e. incapacity)

How to Make Changes on the Face of the Will After Execution

Only TWO ways a testator can make changes to her Will: (1) Write a new Will, which revokes the 1st Will; OR (2) Make a codicil to 1st Will, which changes only part of the Will Both must be DULY EXECUTED (7 pt. test) Words added to Will after signing disregarded

Death Presumption

Person absent for continuous three-year period after diligent search and has not been seen or heard from = presumed dead 3 years after date of disappearance

Testator

Person who dies with a will

Distributee

Person who inherits property under intestate succession.

Beneficiary

Person who receives a bequest (sometimes called a legacy or devise for those who inherit real property) under a will

Takers in Default of Appointment

Persons designated to take the property if the donee fails to effectively exercise her power of appointment

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.

Elective Share Statute

Protects surviving spouse against disinheritance by giving him or her a MINIMUM SHARE OF TESTATOR'S PROBATE ESTATE Elective share is greater of $50,000 or 1/3 of the estate (net probate estate) If elective share is not SATISFIED for surviving spouse, others contribute proportionately or pro rata Amount to which surviving spouse is entitled = elective share amount MINUS value of all outright dispositions passing to spouse under the will or as testamentary substitutes RIGHT OF ELECTION NOT AVAILABLE TO SPOUSE OF DECEDENT WHO WAS NOT DOMICILED IN NY AT TIME OF DEATH. Elective share applies to all of decedent's real and personal property wherever located. Surviving spouse has right of election even if decedent left no will to protect spouse from decedent's depleting estate by making gifts that would qualify as testamentary substitutes and then dying intestate

Requirements for Signing by Testator Proxy

Proxy must: (1) Also sign her name; (2) Cannot be counted as an attesting witness; AND (3) Must affix her address (BUT failure to affix does not invalidate the Will)

Inheritance Rights of Nonmarital Children

RULE: A nonmarital child has full inheritance rights from the mother and the mother's family. However, a nonmarital child inherits from the birth father only if paternity is established.

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 (i.e. "children", "siblings", etc.) and some members of the class predecease the testator, the class members who survive the testator take in equal shares. ONLY SURVIVING MEMBERS OF A CLASS TAKE THE CLASS GIFT (unless anti-lapse applies b/c gift was to issue, brothers, and sisters of testator) Dispositions to brothers and sisters include half-siblings Dispositions to cousins presumptively include only first cousins Dispositions to issue take per capita at each generation (absent a contrary provision NOTE: Anti-lapse trumps the "class gift" rule. NOTE 2: If a child is adopted by a new family, the "adopted out" child does NOT take as a beneficiary of a class gift made in the Will of a member of the child's birth family, unless she's adopted by a member of the birth family.

Revocation by Implication

RULE: If a 2d Will is made subsequent to a 1st, to the extent possible, you read the two instruments together. The second instrument is treated as a codicil, and only revokes the 1st Will to the extent there are inconsistent provisions. EXCEPT, if the 2d Will is wholly inconsistent with the first (i.e. the first Will leaves "all my property to Moe" and the second Will leaves "all my property to Larry"), the first Will is revoked by IMPLICATION

Revival of Revoked Wills

RULE: If a testator executes a Will that is revoked by a later Will containing a revocation clause, the first Will CANNOT be "revived" by the testator merely revoking the later Will. The first Will can only be revived in one of two ways: (1) Re-execution/Republication: signed again by the testator and 2 witnesses; OR (2) Doctrine of "republication by codicil": testator validly executes a codicil, making changes (the NO REVIVAL rule also applies to codicils); OR (3) a later writing executed with testamentary formalities

Special Rule for Children Adopted by Relatives

RULE: If an adopted child is related to the decedent by both a birth relationship and an adopted relationship, the child inherits under the birth relationship UNLESS the decedent was the adopting parent, then the child inherits under the adoptive relationship (see p. 10 for ex.)

Decedent Survived by Children Only

RULE: If the decedent is survived by children only (and no child has predeceased the decedent): the estate passes to the children in equal shares.

Decedent Survived by Some Children, with Some Predeceased Children

RULE: If the decedent is survived by children, but some children have predeceased the decedent, the estate passes to the alive children and the issue of the dead children by representation or per capita at each generation.

Decedent Survived by Spouse and No Children

RULE: If the decedent is survived by her spouse but not by any children or issue of children, the surviving spouse takes THE WHOLE ESTATE.

Decedent Survived by Spouse and Children

RULE: If the decedent is survived by his spouse and issue, whether of his current marriage or an earlier marriage: (1) the surviving spouse takes $50,000 + half the residuary (2) the issue take the leftover residuary If the estate is less than $50,000, then the whole estate goes to the surviving spouse.

Disclaimer ("Renunciation") by Intestate Distributee

RULE: Person who disclaimed is considered to have predeceased the decedent. No one can be compelled to be a distributee or to take property by operation of law. A distributee can therefore disclaim (or renounce) her interest in the decedent's estate in whole or in part. Distributees disclaim to avoid taxes and creditor's claims. HOWEVER, a distributee cannot disclaim to effect Medicaid or Medicare.

Revocation by Physical Act of Another (By Proxy)

RULE: The physical act must be: (1) At the testator's request (2) In the testator's presence; AND (3) Witnessed by at least two witnesses That means that at least 4 people have to be in the room.

Interested Witness Statute

RULE: The validity of the Will is not affected if a Will beneficiary is also an attesting witness BUT the bequest to the witness is void UNLESS: (1) There are at least 3 witnesses and 2 were disinterested (not beneficiaries) - the SUPERNUMERARY RULE - therefore, the signature of the witness-beneficiary is not needed to admit the Will to probate so that witness-beneficiary can receive their bequest; OR (2) The interested witness would be an intestate distributee if the testator died without a will --> the "whichever is least" rule applied If an interested witness and NOT a distributee, then will lose entire bequest, and the Will will still be good. Compensation for an executor does not make an individual an "interested witness" for the purpose of the statute

Rule for a Disqualified Spouse in Intestacy

RULE: We assume that the surviving spouse predeceased and we drop their share to their kids or whoever is next in line.

Revocation of Wills

RULE: Will can be revoked in one of two ways (1) By a subsequent testamentary instrument executed with same formalities as required for execution of Will; OR (2) By physical act (i.e. burning, tearing, cutting, canceling, obliterating, or other act of mutilation), BUT MUST HAVE the intent to revoke (an accident isn't good enough) - physical act must cancel out words on the page (i.e. writing VOID across each page, or CROSSING OUT SIGNATURE) Typical express revocation language: "I hereby revoke all Wills heretofore made by me." NEW YORK RULE: NO PARTIAL revocation by physical act recognized Revocation of Will revokes all codicils (but not vice versa)

Requirements of a Duly Executed Will (7 PT. Test)

Remember SPEW AT 30 (1) Must be at least 18 y.o. (A) (2) Must be signed by the testator or by someone at the testator's direction and in her presence (S) (3) Testator's signature must be at the END thereof (E) (4) Testator must sign the Will or acknowledge her earlier signature in the presence of each witness (W) (5) Testator must "publish" the will (communicate to witnesses that they are witnessing a will by declaring the document to be her "Last Will and Testament") (P) (6) There must be at least TWO attesting witnesses; AND (T) (7) Execution ceremony must be completed in 30 days (clock starts running when 1st witness signs, NOT when testator signs) (30)

Codicil Revocation

Revoking a codicil does NOT revoke the entire Will. Provisions in the Will that were not changed by the codicil remain in effect

Classification of Gifts

Specific Gift/Legacy Demonstrative Gift/Legacy General Gift/Legacy Residuary Disposition Intestate Property

Waiver of Right of Election

Spouse may waive right of election before or after marriage - need not be supported by consideration Waiver can be general or may be to specific will or specific testamentary substitute Waiver must be in writing, signed, and acknowledged before notary public

Living Will

States individual's desires regarding: (1) whether to administer, withhold, or withdraw life-sustaining procedures (2) whether to provide, withhold, or withdraw artificial nutrition or hydration (3) whether to provide treatment to alleviate pain NEW YORK: Patient's right to decline treatment guaranteed by common law. Patient's intent to terminate life-sustaining measures may be oral or written but must be established by clear and convincing evidence

Adoption by Estoppel

Stepchild or foster child not adopted --> generally no inheritance rights; BUT under this doctrine, stepchild or foster child can inherit from or through stepparents or foster parents as though legally adopted if stepparent or foster parents took custody of child under agreement with birth parents that he/she would adopt the child, and never carries out agreement --> estopped from denying valid adoption in inheritance context

Posthumous Children

Take as distributees if conceived during lifetime, but born alive after decedent's death Child born more than 280 days after man's death presumed to have been fathered by someone else

Lapsed Gift

Testamentary beneficiary must survive testator in order to take her gift. A will cannot make a gift to a dead person. If beneficiary predeceases testator, her gift lapses

Testamentary Substitutes

Testatementary Substitutes need a LEG UP - Generally, if testator still has interest in property, it's a testamentary substitute --> almost all non-probate transfers are testamentary substitutes T: Totten Trusts (including bank accounts in the testator's name in trust for another, like "A, Trustee for B", an payable on death securities S: Survivorship Estates (including joint tenancies, tenancies by the entirety, joint bank accounts, and survivor bank accounts, if created on or after Sept. 1, 1966) L: Lifetime Transfers with Strings Attached - (1) transfers where testator retains power to revoke, invade, consume, or dispose of principal, or name new beneficiaries, AND (2) transfers (irrevocable) made during marriage, where testator retained life estate (if irrevocably transferred on or after Sept. 1, 1992) E: Employee pension, profit-sharing, and deferred compensation plans (if testator designated beneficiary of plan on or after Sept. 1, 1992) - If plan is called a "qualified plan", only 1/2 is a T-Sub regardless of beneficiary G: Gifts made w/in one year of death - (1) Gifts in excess of $14,000 (annual gift tax exclusion), AND (2) Gifts Causa Mortis (made in fear of impending death, regardless of amount of gift) U: U.S. government bonds and other "pay on death" (P.O.D.) arrangements P: Powers of Appointment - property over which testator held a presently exercisable general power of appointment

Fraud in the Inducement

Testator is fraudulently induced into making will or particular gift by misrepresentations as to facts that influence his motivation (i.e. testator false told that potential beneficiary has cheated him or is dead)

Residuary Disposition

The "rest" of the state, not already allocated to any beneficiary "I give all the rest, residue and remainder of my estate to my son Seth."

Residuary

The balance of the decedent's estate after all claims, taxes and "particular" bequests have been distributed. The "rest" of the estate.

Rule of Convenience - Class Gifts

The class closes at the time a distribution to the class must be made. Later-born class members (those born after testator dies) are excluded from taking as members of the class (unless the GESTATION RULE APPLIES) If, for example, testator gives per capita gift to "children of B" and no children of B are in the class at the testator's death, the gift fails

Decedent Not Survived by Spouse or Issue

The distribution is: (1) All to parents or surviving parent (2) If not survived by parents, all to issue of parents (i.e. siblings and issue of deceased siblings), who take per capita at each generation (3) If not survived by parents or issue of parents, 1/2 to maternal grandparents or surviving grandparent or (if neither is living) to their children and grandchildren, who take per capita at each generation AND 1/2 to paternal grandparents or surviving grandparent or to their children and grandchildren, who take per capita at each generation For more, see p. 6 of notes

Will Proponent

The person who offers the Will for probate (usually the executor) RULE: Has the burden of proving due execution-- (1) If one witness is not available to testify: The testimony of one witness suffices if the other witness is dead, absent from the state, incompetent or cannot with due diligence be found (2) If none of the witnesses are able to testify: The Will proponent must prove the signature of both the testator and one witness (3) If the Will is not self-proved: Both attesting witnesses must testify as to the facts necessary to show due execution

Invalid Divorce

The surviving spouse procured a divorce or annulment not recognized as valid under New York law. This disqualifies a spouse from taking their intestate share (the surviving spouse is not disqualified if the deceased spouse procured the invalid divorce or annulment)

Net Probate Estate

The value of the estate after payment of debts, but before payment of estate tax

Privity in Lawyer Malpractice

There is no privity of contract between the beneficiaries of a Will and the lawyer. The duty is only to the client who contracted the lawyer's services (who is now the testator). However, there IS privity between the executor of an estate and the lawyer.

Nonprobate Assets

Three kinds: (1) Property passing by contract (i.e. life insurance proceeds, employment benefits) (2) Property passing by right of survivorship (3) Property held in trust Nonprobate assets cannot be disposed of by will

Disclaimer and Tax Liability

Timely disclaimer avoids gift tax liability if made within nine months of (a) decedent's death or (b) beneficiary's 21st birthday Timely disclaimer will defeat creditor's claims, but cannot be used against federal tax lien If life tenant renounces, future interests are accelerated

Augmented Estate/Elective Share Estate

To prevent testator from defeating elective share statute, elective share includes probate estate AND testamentary substitutes, collectively known as augmented estate or elective share estate

Bequest of Shares of Stock Where a Stock Split Occurs

Treated as specific bequest for purposes of the split (irrelevant whether testator used "my" language and/or whether stock was publicly-traded or closely-held) --> beneficiary gets what's there EXAMPLE: If beneficiary bequeathed 100 shares of Kodak stock, and stock splits so that there are now 200 shares, beneficiary gets 200 shares of Kodak stock, even though he would have only gotten the value of 100 shares had the testator sold the stock before he died. Does not include additional shares produced by a dividend. Specific legatee entitled to all cash and stock dividends and stock splits declared and paid after the testator's death

Pretermitted Child Statute

UNDER EPTL: Parent not compelled to leave ANY property to his children, but child born or adopted after execution of a will and not provided for or mentioned in the will shares in the estate. Afterborn Children include: (1) Adopted Child (2) Posthumous Child (3) Nonmarital Child (child of mother or child of father if paternity is established in one of ways recognized by intestacy statute) Grandchild NOT protected HOWEVER, child born after will executed but before republication via codicil is NOT pretermitted Statute DOES NOT APPLY if: (1) afterborn provided for by any settlement (any form of lifetime transfer including Totten trusts, life insurance policies, savings bonds, etc., size of apportionment irrelevant) (2) afterborn mentioned or provided for in any way by Will

NY Reqs. for Testator Witnesses

Unlike most states, New York does not require that witnesses sign in each other's presence or in the testator's presence. Attesting witnesses must attest to the testator's signature when the testator signed the Will (or acknowledged her signature). If the testator forgot to sign when the witness signed, and added her signature in the witnesses' presence later, the Will is denied probate. (but a "contemporaneous transaction" is okay)

Estate Distribution w/Spouse

When a decedent is survived by a spouse, the estate is distributed as follows: Spouse + one or more children: Spouse receives $50,000 + half of estate; remaining half passes to children or their issue per capita at each generation (distributees in the same degree of kinship to the decedent always take in equal shares, i.e. the shares of deceased persons at the first generational level are combined and divided equally among the takers at the next generational level) Spouse + no children or issue: Spouse takes entire estate

Testate

When a person dies with a will

Intestate

When a person dies without a will.

Consideration Furnished Test

When calculating an elective share, if survivorship estate involves a third party, the surviving spouse has burden of proving the amount of the decedent spouse's contribution to the asset If survivorship estate created BEFORE MARRIAGE involving testator and THIRD PARTY --> use consideration furnished test, but only a maximum of ONE HALF of the property's value is a testamentary substitute b/c we consider the other half a pre-marriage irrevocable transfer. (Same rule applies for joint bank accounts btwn. testator and third party made before marriage)

Revised Uniform Simultaneous Death Act (RUSDA)

Where title to property depends on priority of death, individual who is not established by CLEAR AND CONVINCING EVIDENCE to have survived decedent by 120 hours is deemed to have predeceased decedent (whoever's property is being distributed) In case of joint-tenancy, jointly-held property passes as though each co-owner survived the other --> severs the right of survivorship

Doctrine of Integration

Will Execution Problem --> arises when e.g. pages not physically connected and no internal coherence. surrounding circumstances are considered to determine what was intended to be the will

Fraud

Will or particular gift invalid if result of fraud Elements of fraud: (1) False representations that speaker knew to be false; (2) made with intent to deceive testator; (3) testator's ignorance of falsity; (4) reliance upon such representations, resulting in different will than he otherwise would have made

Power of Attorney

Written authorization for an agent to act on behalf of the author or grantor of the power

Administrator

a person (usually a distributee) appointed as a personal representative to administer the estate of the decedent.

Revocation of Health Care Proxy

can be revoked by notifying either agent or the principal's health care provider orally or in writing