1. decedent left no will or did not properly execute it

2. will does not make a complete distribution of the estate

3. a distributee successfully challenges the will and it is denied probate 

spouse takes 50K and half the residuary

(issue takes leftover residuary)

1. divide into as many shares are there are issue at the first generational level

2. all living issue at the first generational level take one share each

3. shares of the deceased issue at the first generatoinal level are combined and then divided equally among the takes at the next generational level

(issue in the same generation will always have equal shares)

issue of a predeceased child takes the share that the predeceased child would have taken (if alive)

DEFAULT IN NY IS PER CAPITA! 

but a will can override and change the default distribution to per stirpes 

Adopted children have full inheritance rights from adopting family, and vice versa

NO inheritance rights from birth parents or members of birth families

1. child adopted by spouse of birth parent 

-can inherit from both adoptive parent and either birth parent

2. child adopted by a relative

-if adopted child is related to the decedent by both a birth relationship and an adopted relationship, child inherits under birth relationship UNLESS decedent was adopting parent, then child inherits under the adoptive relationship 

rule for NONMARITAL CHLILDREN

from mother:

1. father marries the mother 

2. order of filiation in a paternity suit is entered adjudicating an to be the father

3. father files a witnessed and acknowledged (before notary) affidavit of paternity with the Putative Father Registry, or

4. paternity is established by clear & convincing evidence

-DNA test, openly&notoriously acknowledging child as his own

Circumstances disqualifying spouse from taking intestate shares

(DISMAL)

1. divorce

2. invalid divorce against deceased spouse

3. separation decree against surviving spouse

4. marriage is void

5. abandonment or lack of support by surviving spouse

*disqualified spouse presumed to have predeceased deceden

COMMON LAW: a lifetime gift to a child was presumptively an advancement of his intestate share

NY RULE: no advancement unless proven by

1. contemporaneous writing made at time of gift, AND

2. signed by the donor or donee 

1. in writing, signed & acknowledged (NOTARY)

2. accompanied by separate affidavit stating that no consideration was received for disclaiming

3. irrevocable

4. filed with surrogate's court within 9 months after date of death 

*person who disclaims is considered to have predeceased the decedent 

*cannot disclaim to affect medicaid or medicare

1. 18 years old

2. signed by testator OR by someone at testator's direction and in her presence 

(proxy must also sign her name, cannot be counted as an attesting witness, and must affix her address)

3. T's signature must be at the end thereof

4. T must sign the will or acknowledge his earlier signature in the presence of each witness

5. T must publish the will (declare it her last will and testament)

6. must be at least 2 witnesses when testator signs or acknowledges early signing

(they DO NOT need to be in each other's presence)

7. execution ceremony must be completed within 30 days of first witness signing 

testimony of one witness sufficies if the other is:

-dead

-absent from the state

-incompetent

or cannot with due diligence be found

appears below testator's signature line and above witnesses' signature line and recites the elements of due execution 

PRIMA FACIE EVIDENCE OF FACTS PRESENTED, but

NOT A SUBSTITUTE for live testimony!

(merely corroborative of witness testimony - still has to be called or prove their signatures)

for witnesses with bad memory or hostile witnesses 

attached to the back of the will 

-witnesses sign sworn statement in presence of attorney that recites all of the statements they would make if called to testify in court

IS A SUBSTITUTE FOR LIVE TESTIMONY!

1. can be signed at any time after the will is executed, but usually signed at the same time as the will

2. admissible to probate on the strength of the sworn recitals in the affidavit UNLESS

-an interested party objects (in which case formal rules of proof of execution apply)

interested party = intestate distributee or will beneficiary who is adversely affected by admission of will

INTERESTED WITNESS STATUTE

1. supernumerary rule 

-there were at least 3 witnesses and 2 were disinterested

OR 

2. interested witness would be intestate distributee if testator died without will

*in this case, apply "whichever is least rule" to avoid fraud

(give that person whatever is least from will or intestate - will still good)

NOTE: if witness is interested and NOT intestate distributee, they lose bequest (unless supernumerary rule)

will is admissible to probate in NY if it was validly executed under:

1. law of state where will was executed, or

2. NY law, or

3. law of state where testator was domiciled (either when will executed or at death)

-only determine admissibility to probate, once in it is governed by NY law 

a will that is entirely in T's handwriting that is not signed by witnesses 

VOID IN NY

oral will (DVD, CD, youtube)

VOID IN NY

for members of the armed forces during delcared or undeclared war (but void one year after discharge)

mariners at sea: void three years after discharge 

NO! no privity of K between beneficiaries and lawyer

may be privity between personal rep. of the estate and the estate planning lawyer

BUT no privity to 3rd party beneficiaries if lawyer screws up unless fraud, collusion, or malice 

1. subsequent testimentary instrument executed with proper formalities

OR

2. physical act with intent to revoke 

(anything done to signature shows an intent to revoke the will)

What do you do if there are 2 wills, one before and one later, both saying "my last will"

read two instruments together (second as amendment to first will and only revokes first will to the extent there are inconsistencies)

exception: if second will is wholly inconsistent with first, first will REVOKED BY IMPLICATION

Revocation by physical act of another

(revocation by proxy)

physical act must be:

1. at testator's request

2. in presence of testator

3. 2 witnesses 

presumption that testator was the one who damaged

*note: neither of these two presumptions arises if the will was last seen in the possession of someone adversely affected by its contents 

-evidence is admissible to rebut the presumption of revocation when the will cannot be found or is found in a damaged condition 

1. write a new will which revokes the first will, or

2. make a codicil that changes only parts of the will

BOTH MUST BE DULY EXECUTED

-words after a will after signed and witnesed are disregarded

-partial revocation by physical act not recognized 

CANNOT REVIVE A REVOKED WILL! 

by revoking the later will

can only revive in one of 2 ways:

1. re-execution

(signed again by the testator and two witnesses)

2. doctrine of "republication by codicil"

(T validly executes a codicil to the first will by making changes)

Dependent Relative Revocation

(DRR)

permits revocation of a later will to be disregarded IF:

1. revocation premised upon a mistake of law (thinking that revocation of the later will validates the prior will)

2. the two wills (later and prior) have dispositions that are close --> similar

not really done in NY - argue both ways 

Lost Wills Statute

(applies to DRR and truly lost will)

Lost will proponent must prove that:

1. lost or later will was duly executed

2. lost or later will was not revoked

-must overcome presumptions of revocation that comes from non-production OR prove that revocation should be disregarded under DRR

3. will's provisions are clearly and distrinctly proven by each of at least 2 credible witnesses (or by a copy or draft of the will proved to be ture and complete) 

NY ANTI-LAPSE RULE

Gift does not lapse but vests in the deceased beneficiary's issue IF:

1. pre-deceased beneficiary was testator's brother/sister/issue

AND

2. pre-deceased beneficiary leaves issue who survived T

but note: condition to bequest trumps anti-lapse

IF the testator's residuary estate is

1. devised to two or more persons

2. the gift to one of them fails or lapses for any reason,

3. the anti-lapse statute does not apply

THEN

the other residuary beneficiaries take the entire residuary estate in proportion to their interests

rule of thumb: anti-lapse trumps the surviving residuary beneficiaries rule 

TAKE IN EQUAL SHARES

determine member of the shares --> LOOK AT WHO IS ALIVE AT T's DEATH

class closes at the time the distribution to the class must be made

(TIME OF T'S DEATH)

limitation: later-born class members are NOT excluded from taking as members of class if the gestation principle applies

when class closes

(gift by will v. life estate or income interest with remainder to a class of beneficiaries)

gift by will = closes on T's death

life estate/income interest w/ remainder to a class = death of life tenant or the income beneficiary

Revised Uniform Simultaneous Death Act

(RUSDA)

jointly held prop. passes as though each co-owner survived the other

joint tenancy --> tenancy in common