Wills

INTESTACY

Intestacy Situations

Order of Priority for Appointment of Administrator

Distribution Rules
-per capita and per stirpes
-inheritance rights of children (adopted/nonmarital)

INTESTACY APPLICATION

1. decedent left no will

2. partial intestacy

3. distributee successfully challenges leading to a denial of probate

ORDER OF PRIORITY FOR APPOINTMENT AS ADMINISTRATOR

1. surviving spouse
2. children
3. grandchildren
4. parent
5. siblings
6. any other distributee

INTESTACY

distribution rules

DECEDENT SURVIVED BY:

remember children includes all kids of decedent re: of relation to spouse

SPOUSE AND NO CHILDREN
-spouse takes whole

SPOUSE AND CHILDREN
-50K and 1/2 residuary to spouse
-1/2 residuary after 50 k to children

CHILDREN ONLY
-equal shares to all kids

CHILDREN AND ISSUE OF PREDECEASED CHILDREN
-shares divided for number of kids at first generation level then distributed to living, followed by combining remaining shares and dropping down for a per capita distrib at the next gen

NO SPOUSE OF ISSUE
-hierarchy starting with parents and then issue of parents (siblings and issue of deceased siblings, per capita at each generation)

INTESTACY

distribution rules

per stirpes v. per capita (by representation)

Per Stirpes:
-distribution method where issue of predeceased child takes the share his parent would have were he alive

Per Capita
-default rule in intestacy and probate

Will Exception: Will can be drafted to effect per stripes distribution in probate

INTESTACY

inheritance rights of adopted children

Adopted Children and Their Issue
-general rule: full inheritance rights from adopting family and vice versa

Child Adopted by New Family:
-no inheritance rights from natural parents or other members of the birth family
EXCEPTION: Children Adopted by Spouse of a Birth Parent: child and child's issue can inherit from both, adopting parent and either birth parent

Child Adopted by a Relative:
-If adopted child is related to the decedent by both a birth and adoption, child inherits under birth relationship only, unless decedent was adopting parent, then child inherits under adoptive relationship only

INTESTACY

inheritance rights of non-marital children

RULE TO INHERIT FROM MOM/
non-marital child has full inheritance rights from mother and mother's family

RULE TO INHERIT FROM BIRTH FATHER/
Must Prove Paternity using one of 5 methods depending on whether father was alive or dead:
---legitimation by marriage
---order of filiation
---affidavit of paternity with putative father registry
-paternity in probate
-blood genetic marker test (DNA)

INTESTACY

inheritance rights of non-marital children

PATERNITY ESTABLISHED DURING FATHER'S LIFE

Legitimation by Marriage
-father marries mother after birth

Order of Filiation
-in paternity suit judgment entered adjudicating man to be father

Affidavit of Paternity with the Putative Father Registry
-father files a witnessed and acknowledged document

INTESTACY

inheritance rights of non-marital children

PATERNITY ESTABLISHED AFTER FATHER'S DEATH (IN PROBATE)

PROBATE PROCEEDING STD TO EST PATERNITY
-clear and convincing ev, with the caveat that mere support is insuff (ex:participation in school activities and gifts)...
-...and father must have Openly and Notoriously acknowledged child as his own

DNA TEST
-must have been performed before death
-successful rebuttal will impose clear and convincing burden
-diff from equitable paternity test in dom rel

INTESTACY

variations to intestate distributions; circumstances disqualifying a surviving spouse from taking intestate share, leading to assumption that she pre-deceased and drop down of share to children

DISMAL

D - divorce
(final decree of divorce or annulment recognized as valid under NY law)

I - invalid divorce
(surviving spouse not disqualified if the deceased spouse procured invalid divorce or annulment)

S - separation decree
(a final decree of separation rendered against surviving spouse; separation agreement is not disqualifying unless there is specific language in agmnt waiving spouse's rights under EPTL)
(surviving spouse not disqualified if the final decree of separation was rendered against the deceased spouse)

M - marriage is void
(incestuous or bigamous)

AL - abandonment or lack of support (surv spouse not disqual)

INTESTACY

lifetime gifts to intestate distributee; advancements

COMMON LAW/ ADVANCE
lifetime gift to child was presumptively an advance pymnt of intestate share, to be taken into acct when distributing estate at death (parent would prob want to treat kids ='lly

NY RULE/ NEED WRITING OR NO ADVANCE
rejects advancement presumption, advancement by statute if:
-contemporaneous writing made at time of gift; and
-signed by donor or donee

INTESTACY

disclaimer (renunciation) by intestate distributee

EFFECT OF DISCLAIMER
-assume pre-deceased

REQUIREMENTS FOR VALID DISCLAIMER:
-in writing, signed and acknowledged
-accompanied by a separate affidavit stating that no consideration was received for disclaimer (unless surrogate's court authorizes consideration)
-irrevocable
-filed with surrogate's court within 9 months after date of death

INTESTACY

disclaimer

REASON; PARTIES ALLOWED TO

REASONS TO DISCLAIM:
-avoid taxes, avoid creditor claims

PEOPLE WHO CAN DISCLAIM
-will beneficiaries!...

REMEMBER TO AVOID INEQUITABLE RESULTS:
-disclaimer can never diminish/increase someone's legitimate share

WILLS

validity

DUE EXECUTION CHECKLIST:
S.W.E.P.T

1. Testator is 18+
2. Testator Signs
3. Signature at end thereof
4. T signs (or acknowledges earlier signature in the presence of each witness
5. Publication
6. Two Attesting Witnesses Sign
7. Ceremony is Completed in 30 days

WILLS

validity; due execution

PROXY FOR T's SIGNATURE

-proxy must also sign her name
-proxy cannot be counted as an attesting witness
-proxy must affix her address
--failure to affix address does not invalidate will

WILLS

validity; due execution

PUBLICATION

T must communicate to the witnesses that they are witnessing a Will (and not some other legal document), by declaring the document to be her last will and testament

WILLS

validity; due execution

2 WITNESSES

-witnesses need not sign in each other's or T's presence

-attesting witnesses must attest to T's signature when T signed the will or acknowledged his signature. If T forgot to sign when the witness signed, and added his sinature in the witnesses' presence later, the will is denied probate because it is not a contemporaneous transaction

WILLS

validity; due execution

CODICIL

-later amendments or supplement to a will are a codicil where they are duly exectued

WILLS

validity; due execution

BURDEN OF PROOF

RULE/
will proponent, the person who offer the will for probate (usually the executor) has the burden of proving due execution

-If 1 witness is not avail to testify: testimony of other witness will suffice where 1 is dead, absent from state, incompetent, or cannot with due diligence be found

-If none of the witnesses can testify: will proponent has burden of proof to T's signature + 1 witness's signature

-If Will is not Self-Proved: both witnesses must testify as to facts necessary to prove due execution

WILL VALIDITY

burden of proof; due execution

ATTESTATION CLAUSE

-clause appears below T's signautre line and above witness' signature line reciting all the elements of due execution

PROBATIVE VALUE:

NOT A SUBSTITUTE FOR LIVE TESTIMONY: merely corroborative, proponent must still call witness to testify as to signature

REASONS FOR USE
-bad memory witness
-hostile witness

WILL VALIDITY

burden of proof; due execution

SELF-PROVING AFFIDAVIT

-LEGISLATIVE MECHANISM
--attached to the back of the will which will allow recognition by statute that the validity is not to be contested
-Witness' sign a sworn statement in the presence of an atty reciting all statements they would make if called to testify in court

SUB FOR LIVE TESTIMONY
-unlike attestation caluses, a self-proving affidavit can be a sub for live testimony of witness

PROCEDURE:
-affidavit can be signed at any time after the will is executed
-will is admissible to probate on the strength of the sworn recitals in the affidavit UNLESS an interest party object, in which case the formal bop will apply

INTERESTED PARTY:
distributee who is adversely affected by the admission of the will to probate

WILL VALIDITY

burden of proof; due execution

ATTY MALPRACTICE

omitting a self-proving affidavit is not per se malpractice but pretty darn close

WILL VALIDITY

burden of proof; due execution

INTEREST WITNESS STATUTE

RULE/
to avoid fraud an witnesses who are also receiving a bequest in will, have their bequests voided unless:
-Supernumerary Rule (unnecc. signature)
-Interested Witness was Intestate Distributee in which the Whichever is Least rule will apply among the will bequest and intestate share

REMEMBER WILL IS STILL GOOD AND THIS ONLY APPLIES TO GIFT BEQUESTS (not someone's compensation as executor)

WILL VALIDITY

burden of proof; due execution

FOREIGN WILLS ACT

RULE/
wills are admissible to probate in NY only if validly executed: END:

-Executed, law of the state where will was executed, regardless of T's domicile at the time

-NY law

-Domicile: law of the state where T was domiciled either when will was executed or at death

Rule applies to determine whether will is admissible to probate in NY, once will is admitted to probate NY law governs construction and application of its provisions

WILL VALIDITY

burden of proof; due execution

HOLOGRAPHIC and NONCUPATIVE WILLS

HOLOGRAPHIC: will that is entirely in T's writing, signed but not witnessed

NONCUPATIVE: oral will (dvd, cd)

BOTH VOID unless:
-member of armed forces during declared or undeclared war (but void one year after discharge) and for mariners at sea (but void three years after discharge)
-state where will was executed recognizes holographic wills

WILL VALIDITY

ATTORNEY MALPRACTICE

generally there is no privity of K b/w will beneficiaries and the lawyer and so the duty owed to the client will not extend to them

WILL REVOCATION

valid revocation

TWO METHODS:

-Subsequent Testamentary Instrument (must be duly executed!)(express by language or implied)

-Physical Act (can't write void at the bottom of each page, need to write it across the whole thing; crossing out signature though is suff)
--can be done by proxy

WILL REVOCATION

revocation by implications

RULE/
where there is no express revocation in a subsequent testamentary instrument, the instruments will be read together to the extent possible, but the most recent will trump for any inconsistencies

-If the two are wholly inconsistent the previous will be revoked by implication

WILL REVOCATION

physical act by proxy

PROXY REQUIREMENTS

PHYSICAL ACT MUST OCCUR w/4 PEOPLE IN ROOM:
-at T's request; and
-in T's presence; and
-2 witnesses

WILL REVOCATION

presumptions

-where will was last seen in T's possession or control and is not found after death, it is assumed he revoked will by a physical act

-when a will was last seen in T's possession or control and is found in a damaged condition after T's death it is presumed T was the individual who revoked the will by a physical act

NO PRESUMPTIONS WHERE:
-will last seen in possession of an adversely affected party
-evidence is admissible to rebut presumptions when will cannot be found or when it is found in a damaged condition

WILL CHANGES

2 method

1. Writing a New Will (w/express revocation)

2. Make a codicil to 1st will to change the parts you want to change

TWISTS:
-no partial revocation by a physical act
-words added after signing and witnessing are disregarded
EITHER METHOD MUST FOLLOW DUE EXECUTION

WILL VALIDITY

revocation

NO REVIVAL

RULE/
if T executes a will that is revoked by a later will with an express revocation the first will cannot be revived by T by merely revoking later will.

REVIVAL REQUIRES:
-re-execution of a previous will (signature and witnessing)
OR
-Doctrine of Republication by Codicil: T validly executes codicil to first that revives it or makes changes

Rule of Thumb: Changes will require validly executed document

WILL REVOCATION

DRR: dependent relative revocation
(common law doctrine, also called second best solution, i.e., the first, giving effect to T's intent through a revival of earlier will is not possible b/c of NY EPTL)

RULE/
drr permits revocation of a later will to be disregarded, admitting later will into probate

-CL doctrine, applied in one appellate division case but never by the Ct of appeals, so argue both sides

REQUIREMENTS:

-T's revocation must be premised or dependent upon a mistake of law (i.e., that revocation of the later will validates a prior will, which is not otherwise enforceable!)

-disposition that results from disregarding the revocation of the later will must come close to the dispositions the T intended when he attempted to revive the earlier will and failed, or at least would be closer than an intestate distribution

status in NY unclear, argue it

WILL REVOCATION

lost will statute ?

APPLIES IN:
-DRR
-Truly "Lost" Wills

PROPONENT BURDEN:
-lost or later will was duly executed
-lost or later will was not revoked: (1)overcome presumption of revocation arising from non-production OR (2)prove that revocation should be disregarded under DRR
-will's provisions were 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

death of beneficiary during T's lifetime

ANTI-LAPSE STATURE ('does not fail')

RULE/
If a beneficairy dies during T's lifetime, the gift to the beneficiary lapses (fails) unless the gift is saved by the state's anti-lapse

NY ANTI-LAPSE STATUTE/
gift does not lapse, rather is vests in the deceased's beneficiary's issue if:
-predeceased beneficiary was T's issue, brother or sister
-pre deceased beneficairy leaves issue who survives testator

DISCLAIMER: assumes pre-deceased and so disclaimed gifts get anti-lapse benefit for the issue where applicable

RULE OF THUMB: a condition to bequest trumps anti-lapse

death of beneficairy during T's lifetime

ANTI-LAPSE STATUTE:

death of "adopted out" child: NY Ct of Appeals Case

where a child is adopted out, and T specifically names his adopted out son in his will, even though the adopted out child has no inheritance rights, he does get the benefit of anti-lapse to save a gift for his issue

death of beneficiary during T's lifetime

LAPSE IN RESIDUARY GIFT:
SURVIVING RESIDUARY BENEFICIARIES RULE

Absent a contrary provision in the will, if T's residuary estate is:

-devised to 2 or more persons; and
-gift to one fails or lapses for any reason; and
-anti-lapse does not save it

THEN other residuary beneficairies take the entire residuary estate in proportion to their interests

RULE OF THUMB: Anti-lapse trumps the surviving residuary beneficiaries rule

CLASS GIFTS

rule/rationale

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 T, the class members who survive take in = shares.

RATIONALE/
rule of contrcution based on presumed intent, group minded T must have wanted them to share ='lly

CLASS GIFTS

determining membership in class

Takers are those who are alive and qualify at the time of T's death

CLASS GIFTS

individuals named

-a class of named individuals, where one member dies during T's lifetime, and there is a lapse that does not get anti-lapse benefit results in the share going to the residuary, not the rest of the class

RULE OF THUMB: anti-lapse trumps class-gift rule

CLASS GIFTS

construction of gift involving adopted out child

If a child is adopted out, the child does not take as a beneficiary of a class gift made in the will of a member of the birth family

Adopted out child who is adopted by another member of the birth family would be entitled to share in a class gift

CLASS GIFTS

rule of convenience

RULE/
class closes at the time a distribution to the class must be made, so that later born class members (members after T dies) are excluded from taking

CLASS CLOSES:
-[outright gift in will] at T's death

-[life estate or an income interest with a remainder to a class of beneficiaries] closes at death of life tenant or income beneficiary

SIMULTANEOUS DEATHS

USDA

RULE/
where two people die w/no proof of who went first, it is presumed one outlived the other for purposes of figuring out how to distribute her property

-joint tenancy ex: A's 50% interest in ba passes by oper of law under A's will and vice versa

DISTRIBUTIONS OF PROPERTY BY ANY MEANS:
-intestacy, will, jt, w/ros, life insurance k-

ex: JT

Note: any ev indicating survival, even if really brief moots USDA

NY RULE:
after three years of diligent searching death is presumed, or you can show convincing evidence of substantial peril

SIMULTANEOUS DEATHS

USDA: jointly held property

Jointly held property passes as though each co-owner survived the other

FICTION: USDA theoretically severs the right of survivorship in cases of jointly-held property

changes in T's family after will is executed

T MARRIES

RULE/
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 T's family after will is executed

T UNMARRIES

RULE/
if ct renders a final decree of divorce, annulment, or separation after the execution of a will, all gifts and fiduciary appointment in favor of the spouse are revoked as an operation of law, thus the Will shall be read as though spouse pre-deceased T
-must be a final decree, not merely an application, not merely an agreement
-includes revocation of life insurance beneficiary status, trusts, totten trusts, and right of survivorship (becomes a joint tenancy in common)

EXCLUSIONS:
-gifts and fiduciary appointments for the Issue of former spouse
-appointment of former spouse as guardian of the couple's children
-if couple reconcile and remarry, all provisions are restroed

WILLS

SLAYER STATUTES

DEATH PRESUMED

SS: not in NY: the cl says can't wrongfully kills and take under will or intestacy (or anything else by ss presumably)

NY RULE FOR PRESUM DEATH
-3 yrs of diligent searching
-convincing evidence of subst peril

WILLS

lifetime gift calculation

1. Date of Death Value + Pot
2. Divide up by share
3. Subtract out Distributee's Cash in Hand

prospective inheritance problem

TORTIOUS INTERFERENCE WITH INHERITANCE

not recognized in NY with regard to a prospective inheritance, in such instances, seek imposition of a constructive trust

WILLS

children born or adopted post-will execution

PRETERMITTED
-EPTL protects children born after a Will is Executed, when not expressly provided for by settlement or will
EXCEPTION: T has one or more children at time of will execution and gave him nothing
-[where will makes gift to other children = preterm shares as though it were a class gift
-[where it appears T intended to make limited provisions to children in his will - preterm gets to take the benefit of his intestate share!
-[no other children, only preterm = intestate share]

WILLS

pretermitted child example

Duke Sr. devises $1M to Duke and $3M to Duke 2, and has one pretermitted child.

Add the two amounts and give the preterm a fair share of that amt, proportionally from other taking children

NEGATIVE BEQUESTS
ex: harry smokes too much cannabis, screw him
-CL RULE
-NY RULE

CL RULE/
where will leaves a partial intestate share, words of disinheritance lose effect and property will pass by operation of intestacy

NY RULE/
-words of disinheritance are given full effect, thus including in situations of partial intestacy
--anti-lapse would save issue gift for the issue of disinherited distributee (the assumedly pre-deceased cannabis smoker)

WILLS: Testate Distributions

VARIATIONS: Lifetime Gift to Beneficiary, "Satisfaction of Legacy

Same as Legacies in Intestacy

CL RULE: Advancement

NY RULE: No Advancement Unless

WILLS: Testate Distributions

VARIATIONS: Reference to Facts Outside Will

INCORP BY REFERENCE-EXTRINSIC DOC
-cl allows inc by ref where document was in existence at drafting , will shows an intent to incorporate the doc, and doc is clearly identified
-NY DOES NOT ALLOW INC BY REF: all documents must be duly executed

WILLS: Testate Distributions

VARIATIONS: acts of independent significance (non-testamentary acts)

Doctrine says that act performed by T after will execution that have a purpose or motive independent of any testamentary purpose are given full effect when distributions are made
ex:

TITLE DOCUMENT EXCEPTION:
-deeds, stock certificates, bank passbooks, can only be passed where the beneficiary is recorded on the title as well

CHANGING DISTRIBUTION OF TESTAMENTARY GIFTS

gift classifications

SPECIFIC GIFT

DEMONSTRATIVE GIFT

GENERAL LEGACY

RESIDUARY DISPOSITION

INTESTATE PROPERTY

TESTAMENTARY GIFT CLASSIFICATIONS

demonstrative gift

-general amount but it is from a specific source

ex: I bequeath $5bn to paid from the proceeds of the sale of the crown jewels to my daughter Anne.

TESTAMENTARY GIFT CLASSIFICATION

-specific
-general legacy

sg: gift of tangible property, ex: I give the crown jewels to my son Charles.

gl: ex: I give the sum of $5bn to my daughter Anne

TESTAMENTARY GIFT CLASSIFICATION

intestate property

-no anti-lapse protection and no residuary clause will lead to partial intestacy

CHANGING DISTRIBUTION OF TESTAMENTARY GIFTS

abatement (reduction) of legacies

RULE/
abatement occurs if there are more claims against estate that there are assets to cover all the gifts

CHANGING DISTRIBUTION OF TESTAMENTARY GIFTS

abatement order

absent will saying otherwise

-intestate and residuary property; then
--general legacies (pro rata);
---demonstrative legacies (pro rata);
------specific legacies; and finally
--------items that qualify for the estate tax marital reduction

CHANGING DISTRIBUTION OF TESTAMENTARY GIFTS

ademption (failure of gift)

RULE/ (only applies to specific gifts)
doctrine of ademption provides that where a specific gift does not exist the beneficiary is screwed

-demonstrative legacy will not adeem, instead another source to satisfy the gift will be found

STATUTORY EXCLUSIONS:
1. insurance proceeds for lost, damaged, or destroyed property

2. proceeds received under an executory K

3. proceeds from a guardian or conservator's sale of specifically bequeathed property (need traceability)

CHANGING DISTRIBUTION OF TESTAMENTARY GIFTS

ademption of specific gifts

STATUTORY EXCLUSIONS

1. -Beneficiary takes insurance proceeds for lost, damaged, or destroyed property to the extant they are paid after death-

2. -Beneficiary gets the sale proceeds received under an executory K when they are paid after death-
ex: Mary devises you ba, and then dies while the K is still executory, you get the proceeds when it closes
-note: eminent domain funds deposited before death would adeem

3. -Beneficiary is entitled to receive money or property into which proceeds from a guardian or conservator's sale or transfer of the property can be traced-
ex: Mary devises you ba, but gets sick before death and a guardian sells it to pay for her care, where those funds are not spent and traceable you get them at death.

CHANGING DISTRIBUTION OF TESTAMENTARY GIFTS

specific gifts of encumbered property - no exoneration of liens

CL RULE/
exoneration of liens for spec bequeathed prop using residuary estate when the MBE says so

NY RULE/
no exoneration on specifically devised prop unless will language specifically says so

CHANGING DISTRIBUTION OF TESTAMENTARY GIFTS

bequests of securities

PUBLICLY TRADED STOCK
-General Gift (no ademption), unless bequeathed as "my...stock" then specific (adeems)

CC STOCK
-specific gift (adeems)

STOCK SHARES THAT SPLIT
-specific gift for purpose of split only (my language and CC/public traded irrelevant for split purposes)

NON-PROBATE ASSETS

probate estate v. non-probate assets

Probate Estate: -property that T owned solely in his name at the time of his death, which will be disposed pursuant to term of his will of pass by intestacy-

Non-Probate Assets: -interests in property that are not subject to disposition under the Will or via intestacy-

NON-PROBATE ASSETS

categories

1. PROP PASSING by ROS
-e.g., joint bank account, joint stock account, payable on death securities

2. PROP PASSING by K
-incl life insurance policy or employee benefits payable to a beneficiary other than decedent or decedent's estate

3. PROP HELD in TRUST
-terms of trust govern diposition

4. POWER of APPT
-prop over which decedent hold POA

ELECTIVE SHARE STATUTE (ripe)

elective share and purpose

RULE/
es is calculated out of net probate estate, value after payment of debts but before payment of estate taxes, with any shortfall to be collected pro rata from other beneficiaries

ES: the greater of 50k or 1/3 estate

-meant to protect surviving spouse against disinheritance by giving spouse a minimum share of T's probate estate

ex: husband and wife still married and husband leaves will in will $42, one for each miserable year, with the rest to his mistress

APPLIES TO WILLS AND INTESTACY

ELECTIVE SHARE STATUTE

contributors

-beneficiaries under the will
-beneficiaries or testamentary subs
-intestate distributees

ELECTIVE SHARE STATUTE

T-SUBS (preventing T from defeating ess through transfer of non-probate assets to other persons)

RULE/
t subs are added into probate estate to create the augmented or elective share estate

tsubs: LEGUP
-generally wherever T still has interest in property is is a tsub

non-tsubs: LOGPIT
-generally where T retains to interest in property it is not a tsub with the major exception being life insurance

ELECTIVE SHARE STATUTE

T Subs need a LEG UP

T - totten trusts
S - survivorship estates
L - lifetime transfers w/strings attached
E - employee benefits..
G - gifts made w/m 1 yr of death
U - us government bonds (and pod)
P - powers of appointment

ELECTIVE SHARE STATUTE

L -tsubs need a leg up

LIFETIME TRANSFERS w/STRINGS

1. REVOCABLE TRUSTS: -transfers where the T retains power to revoke, invade, consume or dispose of the principal and name new beneficiaries-
AND
2. -transfers (irrevocable) made during the marriage, where T retained a life estate (if irrevocably transferred on or after Sept 1, 1992)

ELECTIVE SHARE STATUTE

F -tsubs need a leg up

GIFTS MADE w/n 1 YR of DEATH

1. -Gifts in excess of 13K-
(annual gift tax exclusion)

2. -Gifts Causa Mortis-
(gifts made in fear of impending death regardless of amount)
---automatically revoked if T survives expected peril
---gift is not gift cause mortis if T dies 'suddenly' after giving gift

ELECTIVE SHARE STATUTE

P -tsubs need a leguP

POWERS OF APPOINTMENT
(property over which T held a generally exercisable poa)
-note: prop over which t holds a general testamentary power is not a t-sub

ELECTIVE SHARE STATUTE

non t-subs: LOGPIT

L - life insurance
(whether payable to surviving spouse of third party)

O - not important

G - gifts of less than 13K made w/n 1 yr of death

P - pre-marriage revocable transfers (e.g., gift to friend)

I -irrevocable transfer made more than one year before death
(transfers where T did not retain power to revoke, invade, consume or dispose of the principal, or name new beneficiaries

T - transfers (irrevocable made during the marriage)
(where T retains a life estate, if irrevocably transferred before Sept. 1, 1992)

ELECTIVE SHARE STATUTE

calculating the elective share estate

RULE/
Full Value of T-Sub Included except:

1. -survivorship estates involving T and a third party-
(apply consideration furn test)

2. -survivorship estates involving T an surviving spouse-
(bright-line rule: half to t-sub)

3. -survivorship estates created before marriage involving T and a third party-
(apply consideration furnished test, w/caveat for any irrevocable gifts)

ELECTIVE SHARE STATUTE

calculating the elective share estate: exception to full value of t-sub

SURVIVORSHIP ESTATE INVOLVING: T and TP

CONSIDERATION FURNISHED TEST
-BoP on surv spouse to prove amount of decedent's contribution to the asset's acquisition or in the case of a bank account the amount on deposit

ELECTIVE SHARE STATUTE

calculating the elective share estate: exception to full value of t-sub

SURVIVORSHIP ESTATE INVOLVING: T and SURV SPOUSE

BRIGHT LINE RULE:
half to the t-sub.

ELECTIVE SHARE STATUTE

calculating the elective share estate: exception to full value of t-sub

SURVIVORSHIP ESTATE CREATED BEFORE MARRIAGE INVOLVING: T AND TP CREATED

CONSIDERATION FURNISHED TEST
-test applies but only to half the value, i.e., in a pre-marriage irrevocable transfer, third party joint tenant may have been given an irrevocable gift that is not to be counted in T-sub

-also applies to bank accounts created before marriage

ELECTIVE SHARE STATUTE

calculation example

CALCULATE ES
1. -Start w/ New Probate Estate-

2. -Add 1/2 in and leave 1/2 half out of any survivorship estates b/w spouses-
(ex: joint bank acct)

3. -add in any value proven by consideration furnished-

4. 1/3 = es

SATISFY ES
1. Minus any amts passing in will/intestacy
2. Minus 1/2 out from any ins
3. Remainder = net elective share

BENEFICIARIES CONTRIB CALC
-net elective share/remaining assets = percent to be collected from other beneficiaries-

Note: where surviving spouse's elective share is satisfied, spouse has no right of election

ELECTIVE SHARE STATUTE

calculating contributions to satisfy

1. net elective share/remaining assets = percent to be collected from other beneficiaries

ELECTIVE SHARE STATUTE

elective share trusts do not satisfy surviving spouse's right of election

RULE/
If decedent dies on or after 9/1/94, life estates or other terminable interests will not satisfy surviving spouse's elective share entitlement

APPLICATION/
any such life estate of other terminable interest is killed off or accelerated by assuming the spouse predeceased testator

NOTE: of a surviving spouse is given 1/3 outright (?) don't kill the trust

ELECTIVE SHARE STATUTE

procedural rules

FILING
-varies depending on whether it is admitted to probate

PERSONAL RIGHT
-by spouse or on her behalf

WAIVER
-pre-nup provisions allowed, waiver of elective share counts in an explicit waiver of all rights in T's estate

MULTI-J PROBLEMS
-Only spouses of decedents domiciled in NY at time of death

EXEMPT PROPERTY
-items which surviving spouse gets first (off-the-top) before anything is done with estate

CIRCUMSTANCES DISQUALIFYING SPOUSE FROM TAKING ELECTIVE SHARE and EXEMPT PROPERTY
-dismal

SPOUSES AND DISTRIBUTIONS

explicit waiver of right to testator's property

An explicit waiver of all right in T's estate waives the surviving spouse's right to an elective share or intestate share, but does not waiver his or her right to specific gifts under T's will. There must also be an explicit waiver of such bequests.

ELECTIVE SHARE STATUTE

procedural rules

MULTI-J PROBLEMS

RULE/
only spouses of decedent's domiciled in NY at time of death have a right to election

EXCEPTION/
surviving spouse can claim an elective share with regard to T's real property in NY if T expressly states in his will that the disposition of that property is to be governed by NY Law

ELECTIVE SHARE STATUTE

procedural rules

EXEMPT PROPERTY (to be mentioned as a side in any question involving a surviving spouse as the personal property set-aside, unless the items are specifically put into play)

OFF-THE-TOP includes:
-cars up to 15k in value
-furniture, appliances, cpu's, etc. upto 10k in value
-cash allowances upto 15k
(cash allowances not subject to creditor's claims, other than claims for funeral expenses)
-animals, farm machinery, and tractors upto 15k
-books, pictures, videotapes , upto 1k

ELECTIVE SHARE STATUTE

procedural rules

CIRCUMSTANCES DISQUALIFYING SPOUSE FROM TAKING ELECTIVE SHARE AND EXEMPT PROPERTY

(dismal, same as in intestacy)
D
I invalid divorce or annulment by ss
S separation decree (not agmt)
M marriage is void
AL abandonment/los by ss

POWERS OF APPOINTMENT

definitions

DONOR: creator of power

DONEE: person given power to use

POA (an authority created in (or reserved by) 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 it. Note: whe a person reserves a power in himself, they are both donor and donee of the power)

TAKERS IN DEFAULT
(person who takes property if donee fails to correctly exercise power)

POA

purpose

allows person to look at facts in existence at a later date for purpose of making decisions regarding distribution of property

POA

classification of powers

GENERAL POA
(donee can appoint to herself, her creditors, or her estate)

SPECIAL (limited) POA
(donee cannot appoint to herself, typically there will be a limited class as to who donee can appoint, e.g., to the issue of my brother)

PRESENTLY EXERCISABLE POA
(donee can exercise right now, in her lifetime)

TESTAMENTARY POA
(donee can appoint only via will)

HYRBIDS
ex: general testamentary
ex: special testamentary

POA

testamentary poa's

General will provisions, either a residuary clause, or a general distribution of all property will exercise all POA's held by donee, unless donor called for it's specific reference in the donee's will.

ex: to margaret for life, and then to who she appoints by will that specifically refers to this power, margaret makes no reference in will to testamentary poa, appointment is ineffective

POA

elective share: t-sub?

GENERAL PRESENTLY EXERCISABLE
-tsub where donee can get to principal during lifetime

GENERAL TESTAMENTARY
-not t-sub where you can't get to it in your lifetime and t's prop to begin with

SPECIAL
-not a t-sub where t cannot ever get to it

POA

donee's creditor' right to prop

ex: A has a general presently exercisable POA she does not exercise yet
-creditors can reach it because A can reach the assets as if they were owned by him

ex: A has special presently exercisable POA, dies leaving a will exercising the power
-creditors of estate can't get to them where A dies leaving a will executing it

ex: A has General Test POW:
-creditors can't reach it unless:
a. A was both donor and donee; or

b. a exercise poa in favor of estate

POA

RAP AND SUSPENSION RULE

1. Id the interest.

2. Determine whether you are measuring from date of creation or date of exercise.

3. Determine whether second look doctrine applies.

4. Give the RAP Rule

5. Find a LIB, and run with it

6. Most likely, Apply the NY Reform Statute

7. Give the Suspension Rule

8. Look to see if there is an income interest in an unborn beneficiary, and state that the income interest is void; or

9. go further by giving the statutory spendthrift rule, and state that the income interest is void

10. don't forget to deal with the remainder interests.

WILL CONTESTS

mistake

RULE/
absent suspicious circumstances. it is conclusively presumed T read will and understood consequences, thus the plain meaning of the will will not be overturned through the use of extrinsic evidence

WILL CONTESTS

ambiguity (latent and patent

LATENT AMBIGUITY
-misdescription or error that is not evident by looking at will
-extrinsic evidence is admissible to clarify meaning of T's words, incl. facts and circumstances of T, T's declarations to third parties, t's statements to atty who prepared will
-if extrinsic ev fails to resolve ambiguity the gift fails for lack of an ascertainable beneficiary and falls into the residuary

PATENT AMBIGUITY
-obvious on the face of the will
-ex: I give twenty five dollars ($25,000)
-ex ev allowed similar to latent except for No ev of T's declarations to tp's

WILL CONTESTS

conditional wills

will that expressly provides it will be operative is some state condition is met

ARGUE BOTH SIDS
-conditioned upon intent, condition never came to pass, so no probate vs.
-condition merely reflects the motivation or inducement for making the will at that time, not as some condition precedent to its effect

WILL CONTESTS

contract to make a will and joint wills

a joint will, where 2 people makes a will in 1 document sometimes will be executed pursuant to a K that the survivor will not revoke the joint will after death of other spouse

RULE/
k to make will or not revoke a will can only be established by an express statement of intent that will's provisions are intended to be a K b/w the two persons
NOTE: ct will not find that a k of non-revocation was intended merely because a Joint Wil uses possessive pronouns, e.g., we, us our, when making dispositions of the combined estates

BREACH OF K RESULTS IN:
-probate carrying new will, and imposing a constructive trust in favor of any originally intended beneficiaries who are shorted

WILL CONTEST

testamentary capacity

1. Must Understand Nature of Act
(i.e., he is writing a will)

2. Know Nature and Approx. Value of Prop

3. Know Natural Object of His Bounty
(i.e., he must know who his family members and loved ones are)

4. Understand the Dispositions (gifts) Made

WILL CONTESTS

testamentary capacity

INSANE DELUSION

RULE/
where T is generally of a sound mind, but has a persistent belief in supposed facts that are against all evidence, probability, and control, which cause or affect T's testamentary act

ex: paranoia

WILL CONTESTS

testamentary capacity

CASELAW APPLICATION

capacity to make a will requires less capacity than that for any other legal instrument, so that someone who was adjudicated incompetent and had a guardian appointed, may have had a LUCID INTERVAL in which she executed the document

WILL CONTESTS

undue influence

BURDEN OF PROOF: contestant

-existence/exertion of influence
-influence overpowered T's mind/will
-but-for no resulting will or gift in will would have occurred as is

INFERENCE of UI arises from showing:
-will makes gift to someone in a confidential relationship; and
-person was actively involved in the preparation of the will

WILL CONTESTS

undue influence

EVIDENCE

circumstantial evidence is to be used but the following three are insuff alone:

1. Opportunity to Exert Influence

2. Susceptibility to Influence (age/illness)

3. Unequal Dispositions

WILL CONTESTS

undue influence

PUTNAM SCRUTINY

automatic review by surrogate's court if a bequest is made to drafting attorney re: voluntariness

WILL CONTESTS

appointment of drafting attoney

where drafting atty is named executor he must give written disclosure to T that:

-any person may be named executor, not just atty-

-executor receives a statutory commission-

-atty will get legal fees for any representation of estate required-

T must sign disclosure in presence of two witnesses

Failure to comply leads to atty getting only half of the statutory commission

WILL CONTESTS

No Contest (in terrorem ) Clauses

rationale: protecting the T's testamentary plan and his reputation from post-death attack where he deems it neccessary

CLAUSE PROVIDES/
anyone contesting the will gets nothing

MOST STATES/
given full effect with an exception for contestant who had good faith and probable cause

NY RULE/
full effect with the following exceptions
-claim of forgery or revocation by later will
-on behalf of an infant or an incompetent
-construction proceeding to determine will terms
-objection to jurisdiction of ct

POWERS OF ATTORNEY

HEALTH CARE PROXIES

LIVING WILL

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ESTATE TAX

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