Term
| When Descent and Distribution Rules Apply |
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Definition
When:
1. Decedent left no will
2. Decedent's will denied probate (improper/contested will)
3. Decedent's will doesn't completely dispose of estate |
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Term
| Intestate Survived by Spouse and Children |
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Definition
Spouse takes 50K and 1/2 balance.
Kids take the other half or their issue per capita at the generation. |
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Term
| Intestate Survived by Spouse Only (no kids) |
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Definition
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Term
| Issue Per Capita at each Generation |
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Definition
| Divided equally into shares per generation (if 2 of 3 kids dead, combine 2/3 and distribute b/n all the deceased's grandkids) |
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Term
| Intestate: No Spouse, no kids |
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Definition
Pases to parents equally or separately. NOT if he failed to support the child or abandoned him.
IF NO PARENT - to siblings or their issue (per capita at each generation) - no distinction b/n whole/half.
IF NO SIBLINGS - grandparents per capita, then issue of them, then great grandparents and their issue. THEN if no relatives, estate escheats to the state. |
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Term
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Definition
| Stepchild or foster child may inherit as though legally adopted IF deceased took custody under an agreement with the birth parents that he would adopt (and never completed it). |
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Term
| Non-Marital Children and Inheritance |
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Definition
Child obtains all inheritance rights if:
1. legitimated by marriage to mother
2. order of filiation entered in child's lifetime.
3. father files statement with Putative Father Registry
4. Paternity established by clear and convincing Evid - openly acknowledged
5. blood genetic test marker
***Child support does NOT, absent other indications, make a child an heir. |
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Term
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Definition
| Children born after death will be presumed to be his kids if: born less than 280 days from his death. |
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Term
| Absence of Heir of intestate person |
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Definition
| If absent for 3 years - no explanation and diligent search - presume they are dead. If there is a specific, known peril, you may presume death earlier. |
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Term
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Definition
| If priority of Death matters and cannot be determined: dispose property of each as though he survived the other. With Joint tenancies - divide in half. |
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Term
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Definition
Can't inherit from your victim. Treat killer as though predeceased (so maybe their kids can inherit).
Tenancy by Entirety will not pass if you kill spouse. |
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Term
| Burden of Proof on "Killing" for Inheritance |
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Definition
Criminal: Conviction of Murder or 1/2nd degree manslaughter is conclusive.
Civil: show wrongful killing by preponderance of the evidence. |
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Term
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Definition
| NY doesn't do advancements, unless accompanied by a signed writing contemporaneous to the gift announcing the intent to advance on inheritance. If amount advanced exceeds her share, she doesn't return it to the estate. Same for legacies. |
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Term
| Disclaimmer (renunciation) of Intestate share, gift or transfer |
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Definition
Must be in writing, signed and notarized. If done for infant, must be approved by court.
Must also file affidavit w/in 9 mos (or w/in 9 mos of beneficiary's 21st bday) stating no consideration given for this.
Results in inheritance skipping that person, but not being lessened by per capita rule. Treats disclaimant as dying after decedent. |
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Term
| Accepting Property and Disclaimers |
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Definition
May not disclaim property after accepting it.
May accept pension while still disclaiming property. |
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Term
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Definition
1. makes disposition of property
2. directs how NOT to dispose of property
3. disposes of testator's body
4. power of appointment
5. appoints a fiduciary |
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Term
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Definition
| Amendment or supplement to a will |
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Term
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Definition
| 18. Even if the person is over 18 when they die, a will made before that time is invalid. |
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Term
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Definition
Work only if the prior condition is fulfilled.
No parol evidence to show that a will that is absolute on its face is conditional. |
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Term
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Definition
NY doesn't permit except:
1. armed conflict
2. mariners at sea
-- Invalid one year after discharge from services, or 3 years after mariner at sea. |
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Term
| Holographic Will Definition |
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Definition
| Handwritten AND no witnesses. |
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Term
| Execution of Attested Wills (3) |
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Definition
| Must sign at the end, declare it the instrument of your will, with 2 witnesses signing w/in 30 days of eachother. No order necessary for these steps. |
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Term
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Definition
| If another must sign for the person, they must also sign their name (can't count as a witness). Any mark counts as a signature. |
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Term
| Signature "at the end of" the will |
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Definition
| anything following won't be counted. If you need what follows the signature to make sense of what is above it, then it is all invalid. |
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Term
| Signatures of W's to Will |
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Definition
| If W isn't present, Testator must acknowledge signature to them (doesn't have to be verbal). W doesn't have to sign in presence of Testator. |
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Term
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Definition
Interpretation will be governed by NY Law. Admissible if executed in accordance with:
1. NY Law
2. The law of JD where executed
OR
3. JD where testator domiciled, at time of execution or of death. |
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Term
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Definition
| Describing how will was executed. Creates rebuttable presumption that it was executed appropriately. |
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Term
| Attorney Liability for Wills |
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Definition
| None to those who stand to inherit. Contract only between testator and attny - ends when he is deceased. |
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Term
| Testator Knew Contents of Will |
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Definition
| If suspicious circumstances are shown, proponents of the will must show proof that testator knew the contents of the will. |
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Term
| Doctrine of "integration" |
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Definition
| if pages are missing, use circumstantial evidence. |
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Term
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Definition
| Interested Witnesses may not inherit, unless there are two other disinterested witnesses who signed. If the W would be an intestate distributee absent the will, the interested witness may receive the lesser of the intestate distribution or her legacy. |
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Term
| BoP of Due Execution of Will |
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Definition
| BoP on will proponent. Question of fact for determination by court or jury. |
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Term
| Testimony of Witnesses in Proving Will's Execution |
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Definition
| If not self-proved, both Ws should testify. If one is dead, only one W is ok. If neither W is alive or they refuse to testify or they forgot, use other evidence. |
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Term
| Self-Proving Affidavit for Wills |
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Definition
| Ws may file affidavits instead of testimony to state will was done correctly. |
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Term
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Definition
| Does not affect Will.(wife has protection of elective share statute) |
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Term
| Divorce or Annulment and old Will |
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Definition
| Automatically revokes all testamentary provisions to spouse and all appointments of spouse. (as though spouse predeceased). DOES NOT apply to legal separations not followed by divorce, to former spouse's relatives, or to naming spouse as guardian to children or nonprobate transfers. |
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Term
| Children born after the will |
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Definition
| If child born or adopted after the will, they are also included (if children named in the will). Not so for children living and left out. |
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Term
| Afterborn Children where other kids were alive when will was written |
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Definition
afterborn child takes:
1. nothing if others get nothing
2. shares in gifts if they received substantial gifts.
3. takes intestate share only if limited provision made for other children. |
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Term
| Afterborn children where will had no previous children |
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Definition
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Term
| Satisfaction of Afterborn (Pretermitted) Child's Intestate Share |
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Definition
| reduces bequests to other beneficiaries pro rata. Abatement rules applicable to creditor's claims do not apply. |
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Term
| Statute for Afterborn Children Suspended if: (3) |
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Definition
1. Any transfer made during lifetime (life insurance, etc.)
2. Child or future children were mentioned in any way in the will
3. codicil written after child born |
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Term
| Definition of Afterborn Children |
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Definition
| Adopted Children, posthumous children, nonmarital children if ratified (same as for intestate). NOT grandchildren. |
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Term
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Definition
| in whole or part by later will, codicil, or other writing. Same formalities requried for those other writings. |
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Term
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Definition
| Does not revoke the will. But revocation of a will revokes all codicils. |
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Term
| Revocation by Implication |
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Definition
| Later will that is inconsistent will revoke prior statements. If later will completely disposes of property, it revokes earlier will. |
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Term
| Revocation by physical act |
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Definition
Act of burning, tearing, cuttng, etc to will (not copy) with intent to revoke by:
1. Testator OR
2. Another person in presence of and under direction of testator. |
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Term
| Presumptions of Revocation by Physical Act |
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Definition
| If testator is dead and will cannot be found, or it is found and mutilated. |
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Term
| Partial Revocations by Physical Act |
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Definition
| NY doesn't recognize. Also to codicils. (if gift given in will, revoked in codicil, codicil destroyed - gift is not revived). |
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Term
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Definition
Can be doen with
1. Execution of codicil to incorporate prior provisions
2. later writing executed with testamentary formalities
3. republication of prior will, to original or new witnesses to be signed again. ALSO republishes the codicils to the old will, even if they are not there when revived. |
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Term
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Definition
May be admitted to probate only if:
1. established that it wasn't revoked.
2. Execution proved in manner required for existing wills
3. all provisions clearly and distinctly proved by 2 Ws or copy of a draft proved to be complete. |
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Term
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Definition
| Must account for both copies. If not, show that the missing copy was not destroyed by decedent. |
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Term
| Incorporation by Reference, Generally |
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Definition
incorporates unattested documents into the will if:
1. they exist when will was executed
AND
2. identifiable from will with reasonable certainty. |
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Term
| Incorporation by Reference, NY (3) |
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Definition
Not recognized EXCEPT
1. references to gifts made by another person's will
2. gifts by will to an inter vivos trust executed before or concurrently to the will
3. attached lists disposing of tangible personalty |
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Term
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Definition
| Valid only if the earlier will was properly executed AND if earlier will not destroyed by physical act (unless totally re-written in codicil). Effective from the date of the codicil. |
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Term
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Definition
| Changes directly onto the old will are ineffective unless re-executed with proper formalities. Doesn't negate earlier will. |
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Term
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Definition
| The concept that a gift will lapse if they one to receive it dies first. Doesn't always apply in NY. |
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Term
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Definition
| If gift to testator's issue or sibling AS A CLASS, who is predeceased with their own issue -- gift will vest in that issue. Doesn't include stepchildren or in-laws for siblings (use CL rule) |
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Term
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Definition
| If someone dies and their gift lapses, redistribute to other beneficiaries in proportions reflecting their share of the will. |
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Term
| Gift Conditioned on Survival |
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Definition
| Precludes the anti-lapse statute. |
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Term
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Definition
If a specific piece of property was left to someone, and it no longer exists, that gift is adeemed. It fails.
Does not apply to monetary amounts (50K from sale of my boat - no boat - take 50K from elsewhere) |
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Term
| Gift of Stock - general or specific |
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Definition
| May be either. If closely held - specific. If publicly traded - general (absent specific language: MY 200 shares) |
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Term
| Exceptions to Ademption (4) |
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Definition
1. Change of form, not substance (pshp changes to corporation)
2. Incompetent's property conveyed (trace $ from sale and pay that)
3. Insurance Proceeds for destroyed property (if destroyed while he lived, take proceeds after death: if destroyed after death take all proceeds)
4. Executory Agrmt for Conveyance of Specifically Devised Property - if already conveyed, devisee gets nothing. |
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Term
| Liens on bequeathed property |
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Definition
| Not automatically exonerated unless the will calls for that. Devisees take subject to liens with no personal liability, but risk of foreclosure. Applies to life insurance policies as well (apparently you can borrow against these??) |
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Term
| Gifts of stock that has split or increased shares through dividends. |
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Definition
| If the split was after the will, those go to the receiver if they were SPECIFICALLY bequested. Dividends do not. All dividends or splits AFTER his death go to the beneficiaries. |
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Term
Class Gifts:
Dispositions to "Children" |
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Definition
Includes all marriages, posthumous kids, non-marital and adopted kids (presumptively).
Does not include steps or grandchildren. |
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Term
| Class Gifts: Children per stirpes |
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Definition
| to children in equal shares. If one dies before testator, then to their descedants. |
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Term
| Class Gifts: Brothers and Sisters - scope |
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Definition
| includes half brothers and sisters |
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Term
| Dispositions to Issue or Descendants (2 time periods) |
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Definition
Wills/trusts executed before 9/1/1992:
Issue/descendants in equal degree take per capita - if unequal degree, take per stirpes.
Post-1992, take per capital at each generation (absent contrary provisions) |
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Term
| Disposition to "heirs" or "next of kin" "relatives" or "family" |
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Definition
| Treated the same as in intestacy statutes. |
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Term
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Definition
Only class members who survive the testator get the gift.
Determine if the gift was meant for specific individuals, or for those with a specific definition. |
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Term
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Definition
| Class does not close until some member can call for a distribution of his share of the class gift. |
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Term
| Class Closing: Outright Gift by Will |
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Definition
| If the gift to class is given outright on death of testator, then the class closes on his death. |
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Term
| Class Closing: Postponed Gifts |
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Definition
| Class closes when some member is entitled to a distribution |
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Term
| Present Gift to Class contingent on reaching an age |
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Definition
| Class closes when first member of class reaches designated age. |
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Term
| Future Gift to Class contingent on reaching an age |
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Definition
Class open until:
1. preceding estate terminates
AND
2. first class member reaches designated age |
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Term
| Per Capita Gifts: Class Closing |
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Definition
| "To all of B's children" - count those children alive or in gestation at the time of Testator's death. Class closes immediately - if no kids yet, the class fails. |
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Term
| Errors or Omissions in Will |
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Definition
| Court may find gifts by implication if it is clear that something was left out that shouldn't have been. |
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Term
| Surviving Spouse's Elective Share |
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Definition
Greater of 50K or 1/3 of Estate.
Subtract out all dispositions left to the spouse in addition to this.
BUT deceased spouse must be NY domiciliary. |
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Term
| Testamentary Substitutes: Function and role with elective share |
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Definition
| These are assets that are not in the estate, but should be estimated with it when calculating the spouse's elective share. |
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Term
| Testamentary Substitutes (5) |
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Definition
1. irrevocable gifts over 12K in year before death.
2. gifts causa mortis
3. lifetime xfers w/retained powers or made after 1992
4. jt tenancies and survivorship bank accounts created after 1966
5. pension plan or death benefits |
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Term
| Items that are NOT testamentary substitutes (3) |
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Definition
1. life insurance
2. irrevocable xfers from more than one year before death
3. decedent's interest in a trust created by another |
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Term
| Procedural Rules Governing Election by Spouse |
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Definition
Must file w/in 6 months from issuance of letters of administration, no later than two years after decedent's death.
Time for election may be extended by 6 mos(w/in 2 year limit).
With reasonable cause, may apply 12 mos after (w/in 2 year limit) if estate not fully distributed. |
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Term
| Waiver of Spouses Election |
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Definition
| May be waived before or after marriage - no consideration needed. Must be in writing, signed, notarized. |
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Term
| Disqualification from Spousal Election (5) |
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Definition
If:
1. final decree of divorce/annulment/separation
2. void marriage
3. surviving spouse got a divorce in another JD, not regarded as valid in NY
4. survivor abandoned deceased up to point of death
5. spouse failed to support deceased spouse
BoP on party contending disqualification |
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Term
| Exemptions from estate: Personal Property |
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Definition
Remain to the family (minor children and spouse) without counting toward estate.
Furniture ($10K), one car ($15K), farm stuff ($15K), cash or other ($15K) |
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Term
| Community Property treated in NY divorces |
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Definition
Governed by Uniform disposition of Community Property Rights At Death Act.
Says all prop acquired in community state should be treated as such.
Community Property not subject to the spouse's right of election |
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Term
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Definition
BoP on will proponent. Testator must have capacity to:
1. understand nature of act
2. know nature, condition, extent of property
3. know names of his bounty
4. understand scope and meaning of will. |
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Term
| Will Contests: Undue Influence |
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Definition
Contestant must show by fair preponderance:
1. existence of influence
2. operation of influence to subvert will of testator
3. would not have been executed but for that influence.
Usually shown by circumstantial evidence. |
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Term
| Bequest to Person in Confidential Relationship or who was Involved in Procuring Will |
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Definition
| Raises and inference of undue influence. Beneficiary must demonstrate how the gift was made (freely). |
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Term
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Definition
will make gift invalid.
1. false representation
2. made to deceive testator
3. who is ignorant of the fraud
4. and reliance on this resulting in different will. |
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Term
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Definition
| If demonstrated (extrinsic evidence allowed) - court will allow correction. |
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Term
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Definition
| Anyone who will be hurt by will going into probate. Anyone with intestate interest, or named in an earlier will. |
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Term
| No-Contest Clauses: 6 exceptions |
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Definition
Enforced in NY EXCEPT:
1. forgery
2. JD of court
3. contest by fiduciary for infant
4. action to construe terms
5. contest that was withdrawn
6. discovery to see if the grounds to contest exist. |
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Term
| Order of priority for Appointment for administrator of Intestate Estate (5) |
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Definition
1. spouse
2. kids
3. grandkids
4. parents
5. any other distributees |
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Term
| Administration of Estate by Affidavit |
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Definition
| Allowed if value is under $20K. |
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Term
| Abatement of Legacies (generally) |
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Definition
| If debts are owed, the gifts to survivors are reduced in a specific order to meet those debts first. |
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Term
| Abatement of Legacies, Order of Abatement (5) |
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Definition
1. intestacy property
2. residuary estate
3. general dispositions abated pro rata
4. specific dispositions
5. spouse contributions qualifying for estate tax marital deduction |
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Term
| Power of Appointment, generally |
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Definition
| donee may designate according to limits prescribed by donor who will take the property and how. Donee has power of appointment. |
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Term
| Special Power of Appointment |
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Definition
| Is limited to a specific class of persons to receive gifts - does not include Donee. |
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Term
| Exclusive and Nonexclusive Special Powers of Appointment |
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Definition
exclusive- may select within a class
nonexclusive - must divide amongst a class |
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Term
| Power of Appointment given to two or more Donees |
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Definition
| All must exercise together. |
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