1) dies without a will

2) attempts ot draft will but invalid

3) partial intestacy

Surviving Spouse: either 1) everything if no issue or 2) 50,000 + 1/2 rest if issue.

Issue: either 1) everything if no spouse or 2) rest of estate after surviving spouse takes. 

per capita: each generation receives same share. distribute to entire generation then rebundle and redistribute to next.

Per stirpes (NOT NY): decendants receive only share of previous issue. 

includes natural born children in marriage

posthumously born children

adopted children

acknoweledged non-marital children

replace natural parents with adopting parents

Adopted child CAN receive from bio parents IF

1) deceased died after August 1987

2) deceased was adopted childs grandparent or decendant of g-parent OR

3) adoptive parent married to childs bio parent.

1) assumption that child of bio mom

2) bio father can be established if

- father subsequently marries mother

- father held child out as his own and C&C evidence exists.

- established blood test during fathers life

- adjudicated during lifetime of father

- father writen acknowledgment 

1) spouse and children (get all only if not alive then)

2) surviving parents

3) issue of parents

4) grandparents

5) issue of grandparents

6) beyond this no one takes escheats to state

1) in writing

2) testator's signature at END (valid elsewhere only above sig).

3) signed by TWO witnesses

only valid if armed service member active duty during time of way.

same as oral wills

witness must be disinterested. if beneficiary witness share is purged making will valid but witness unable to take beyond what would be allowed by intestacy.

amendments to will, require same formailies (writing, sig, two witnesses)

presumption that republishes will as of date of codicil.

1) integration - documents present at will signing are integrated

2) acts of independant significance - if significant beyond testimentary purpose (to my employees ex.)

3) incorporation by reference - generally NOT recognized in NY (excp. pour over gifts)

Function like wills but not in probate court

1) revocable trusts

2) pour over's trusts

3) bank accounts for others

4) contracts with payable on death provisions

5) life insurance

6) joint tenancies 

7) totton trust

8) gifts causa mortis

1) subsequent testametnary instrument - later will revokes prior will by implication if inconsistent or express revocation. if not entirely inconsistent than it amends (codicil)

2) physical act - destroying material portion with intent, vital parts have to be destroyed

3) operation of law - divorce revokes bequents to former spouse

if testator revokes will based on material mistake revocation deemed ineffective.

1) specific - gift or property

2) general - money from general estate

3) demonstrative - disposition of money from specific source

4) residuary - everything left

1) intestacy order

2) residual beneficiary

3) general

4) demonstrative

5) specific

prevents disposition from failing when predeceases testator if sibling or issue and predeceasing beneficiary has issue of their own.

if disposition to class of people and member dies then disposition goes to remaining class members instead of failing.

When property no longer in estate at time of death. 

If no longer in estate through no choice of testator then law will presume testator did not intend for disposition to fail.

Either: 1) Characterized as a general disposition instead of specific or 2) treat extinction as change in form not substance.

1) homestead exemption - 150,000 of real prop.

2) personal property set aside - stuff for day-to-day life

3) elective share - cannot disinherit spouse

Surviving spouse can choose to take either 50,000 or 1/3rd of net estate (unless prenup exists)

- gross estate - debt = net estate

- includes: probate estate, gifts in contemplation of death, joint bank account, joint tenancies, trust where decendent right to invade, any money in deferred compensation plan, pension plan etc, power of appountment, any transfers of propert within 1 year w/o adequate compensation.

- Excludes: life insurance, irrevocable transfers prior to marriage.

life time gifts to child CAN be treated as advances against what child receives as inheritance if decedent demonstrated intent in writing contemporaneous gift. 

applies in intestacy as well

if child born after will executed. presume resulting disinheritance was simply a mistake on decedent. 

If no children at time will written any after-born child will be entitled to intestate share. 

But if testator had children at time then any after-born children only entited to share of amount tht was left to earlier children named in will. 

1) homicide

2) disclaimer - renunciation.

3) disqualification - failure to support, abandonment (voluntary) and abuse

1) invalid if total restraint

2) permisible if partial restraint.

1. lack of testamentary capacity

2. insane delusions

3. undue influence

4. fraud

5. duress

testator must be capable of knowing (not actual knowlege)

1. nature of the act

2. nature, character and value of his property

3. natural object of bounty

4. fact that he is executing a will

5. plan of attempted disposition. 

if no capacity = void

- burden of proof is on contestant of will to show undue influence. 

- presumption of undue influcen if 1) confidential relationshpi between testator and beneficiary under wil 2) suspicious circumtances (unnatural disposion in secret)

- burden then switches to proponent to disprove undue influence.

misrepresentations intending to and in fact causing disosition that testator otherwise would not have made. 

- fraud in inducemnet

- fraud in execution

often results in constructive trust.

in NY surrogates court probates wills. 

Formal Probate: notice probate is formal proceeding requires notive to parties (will contests always formal)

Informal Probate

contestant must be someone who will benefit from will contest. typically means someone who would take in intestacy if will or part of will struck down.

NY allows clauses. if contest lose share of will. 

BUT NY defines some claims as not challenges i) claim that will forged ii) challenge on behalf child or incompetancy iii) objection to jurisdiction of court.

But also if benefiicary of will challenges  and wins then no contest is invalid too so insetate share will apply. 

will can designate who testator wnats.

OR 

1) surviving spouse

2) children of decedent

3) grandchildren of decedent

4) decedents parents

5) siblings of decedent

6) any person who is a distributee and eligible to qualify with preference twoards people larger share of estate.

Contingent interests must vest or open classes close within perpetuities period (21 years from death of life in being)

BUT

Savings statute: presumption that grantor intended to rquire that a condition be met within perpetuities period.

Suspension Statute: prevents fragmentation of estate past perpetuities period. requires that some combo of people exist during period capable of coveying fee simple of property.

1) settlor makes trust appoints trustee to owe fiduciary duty to beneficiary. 

- but court appoints trustee if not by settlor.

2) must be separation of intersts (or merger occurs)

1) intent (greater than precatory languge of wish)

2) trust property (not mere expectancy)

3) trust purpose (any purpose not invalid/illegal)

4) beneficiares (sufficient definite/ascertainble)

5) NY requires writing, signed by settlor and one trustee and notarized or executed in presense of 2 witnesses.

inter vivos trust: during settlors life

testimentary trust: created at settlor's death by will or incorporated by reference.

pour-over trust: funded at death

totten trust: joint bank account for beneficiary retain control

Life Insurance trust: from payout insurance

UTMA: minors custodial account until 21

Chartable trusts (different)

RAP does not apply

Charitablepurpose substitues for benefiicary

BUt must be i) poverty ii)advancement of education/religion iii) promotion of good health iv) gov purposes and v) other benefiting community at large.

NY atty gen. enforces charitable trusts.

cy pres

1) honorary trusts - tries to leave property for impermissible beneficiary not charitable. 

2) resulting trusts - trust fails trustee must return property to settlor.

3) constructive trusts - equitable remedy to prevent unjust enrichment in even t wrongful conduct. 

- 1)condiential/fiduciary relationship 2) promise 3) transfer of pro in relianc eon promise = unjust enrichment.

1) Mandatory trust: required to pay out prespecified money

2) Discretionary: trustee discretion how much to pay or to whom. beneficiary = no claim to specific payout.

3) Support Trust: requires trustee to pay in accordance with objective standard.

1) mandatory trust: creditor can get trust property to extent mandatory component

2) Distretionary: no access to property (until dispersed)

3) spend thrift: restricts benefiicarys power to voluntarily and involuntarily transfer interest

NY all trust presummed spend thrift .

But creditors can still acess for

1) child spouse family support

2) people providing necessities

3) the government and

4) income beyond needed to provide.

1) by consent: revocable can be terminated by settlor at any time. irrevocable can be termined with consent of settlor AND beneficiaries. 

2) without consent: automatic when purpose accomplished

may be modified if unanticipated change in conditions frustrates the trust terms or purpose.

can seek removal if 

1) incapacity: incapable of performing duties

2) Breach: trustee materially breached duties

3) conflict of interest: arisen (cant be prior to appointment if known to settlor)

4) srious disagreement

5) poor performance: persistant poor performance due to trusee action/inaction

6) self-dealing absolutly prohibited  "no furhter inquiry rule"

not to favor one beneficiary over other.

- note: prinicpal/income problem

- UPIA permits reasonable return for lifetime benefiary must balnce

i) intent of settlor, language

ii) nature purpose of trust

iii) identify cirucmstances of beneficiaries

iv) needs for income, liquitiy, appreciation

v) net amount allocated

vi) antiicipated economic conditions

vii) anticipated tax consequences

- Unitrust: pays fixed percentage isntead.

1) absolute duty of loyalty and good faith to beneficiareis

2) no self-dealing

3) duty to segregate funds

4) duty of prudence (UPIA) invests consistent with portfolio theory. may have duty to sell or diversify even if otherwise directed. 

5) duty to disclose and account for assets.