Term
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Definition
| to decide who owns the property before death, use the law of the domicile at the time the property was acquired; rights do NOT change as the couple moves from one state to another |
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Term
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Definition
| for personal property, the law of the intestate's domicile at death governs; for real property, the law of the situs governs |
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Term
| decedent survived by spouse and no descendants |
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Definition
| surviving spouse takes all |
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Term
| decedent survived by spouse and descendants |
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Definition
| surviving spouse takes 1st $50,000 and half of the residual; descendants take the rest of the residual |
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Term
| decedent survived only by children |
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Definition
i.e., no surviving spouse and no descendants of a predeceased child--
each surviving child receives equal share |
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Term
| decedent survived by children and descendants of a predeceased child |
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Definition
NOTE: also used for gifts in a will to issues of someone else like best friend
per capita at each generation (i.e., each equally related issue gets equal share):
1. divide estate into one share for each surviving issue in the closest generation with a survivor and each predeceased issue in that generation with surviving issue
2. each living member of the closest generation to intestate gets one share
3. shares created on behalf of predeceased issue with surviving issue distributed per capita to those surviving issue |
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Term
| decedent not survived by spouse or issue |
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Definition
1. all to parents
2. all to parents' issue (intestate's brothers, sisters, nieces, nephews, etc.)
3. 1/2 maternal grandparent; 1/2 paternal grandparent (aunts, uncles, cousins, etc.)
4. all to one side of grandparents
5. great grandchildren of grandparents (1/2 to each side or all)
6. escheats to state of NY |
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Term
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Definition
1. adopted child and issue DO inherit from and through parents by adopts
2. generally, adopted child does NOT inherit from biological parents except adoption by spouse of birth parent (step parent adoption)
3. parents by adoption DO inherit from adopted child
4. biological parents do NOT inherit from adopted child
5. if adopted child is related to decedent by both birth and adopted relationship, child inherits under birth relationship UNLESS decedent was adopting parent, then child inherits under adoptive relationship |
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Term
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Definition
1. child takes from mother
2. child takes from father ONLY IF paternity established by either:
(i) F marries M after child's birth;
(ii) order of filiation;
(iii) F files witnessed and acknowledged affidavit of paternity; OR
(iv) paternity established by clear and convincing evidence (DNA or holds child out as his own) |
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Term
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Definition
| where relatives share only one ancestor, NO difference (comes up for inheritance between brothers and sisters) |
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Term
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Definition
spouse NOT entitled to share (treated as if predeceased) when DISMAL:
1. divorce (valid in NY; or annulment)
2. invalid divorce obtained by surviving spouse
3. separation decree (against surviving spouse); agreement requires specific language to disqualify
4. marriage is void
5. abandonment or lack of support (by surviving spouse |
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Term
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Definition
NO slayer statute; but, court may impose constructive trust to prevent unjust enrichment
-if spouse kills, joint property is severed so murderer retains only what she contributed |
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Term
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Definition
irrevocable gift intended by donor as prepayment of an inheritance
-evidence must be in writing made at the time of the gift AND signed by donor or donee
-if donee wants to share in estate, must account for the advancement and shares are computed as if advancement were still in estate based on date of death value
-for wills, this is called satisfaction |
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Term
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Definition
beneficiaries cannot be forced to accept inheritance or gift
-reasons: burdensome, taxes, avoid creditors
-requirements: in writing, signed by disclaimant, acknowledged before notary, affidavit stating NO consideration received, AND filed with Surrogate's Court within 9 months of death (NOTE: time could run before aware of inheritance!)
-cannot disclaim after acceptance
-disclaimed property passes as if disclaimant predeceased
-disclaimers are irrevocable |
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Term
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Definition
| an heir must outlive intestate by 120 hours to inherit, proven by clear and convincing evidence; if not, treated as if predeceased |
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Term
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Definition
| NY permits a testator to preclude an heir from inheriting when partial intestacy exists |
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Term
| valid will: legal capacity |
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Definition
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Term
| valid will: testamentary capacity |
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Definition
1. understand the action
2. comprehend effect of the action
3. know general nature and extent of property
4. recognize natural objects of bounty (family members)
5. understand the dispositions
-mentally challenged ok (lower standard than K capacity)
-adjudication of incapacity raises rebuttable presumption of lack of testamentary capacity, rebutted by lucid interval
-sane person may lack capacity at times |
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Term
| valid will: testamentary intent |
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Definition
| testator must intend the very instrument executed to be the will |
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Term
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Definition
1. in writing
2. signed by testator (or proxy in testator's presence at his direction; proxy signs own name, not a necessary attesting witness, and writes own address)
3. testator or proxy subscribes (signing at the end of the document)
4. in the presence of each witness, testator must sign or acknowledge a prior signature
5. testator must publish the will (communicate to witness that it is his will)
6. attestation (2 witnesses within 30 days of each other, but not required in presence of each other or testator) |
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Term
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Definition
generally, beneficiary's gift is void but otherwise the will is valid
exceptions:
(i) extra witness (beneficiary receives gift if his attestation not necessary)
(ii) beneficiary also an heir (receives smaller of intestate share and gift under the will) |
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Term
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Definition
| not required by act as prima facie evidence that all will formalities satisfied; but, does NOT substitute for witnesses' testimony at probate |
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Term
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Definition
| testator and witnesses sign affidavit swearing under oath in presence of an attorney that requirements for valid will satisfied; in uncontested cases, it replaces requirement that witnesses come and testify |
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Term
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Definition
proponent has the burden of proving that the testator duly executed the will; if no self-proving affidavit or contested:
1. if both witnesses available, must testify
2. if one not available, one suffices if other is dead, absent from state, incompetent, or cannot be found with due diligence
3. if none of the witnesses are able to testify, will proponent must rove signatures of testator and one witness |
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Term
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Definition
1. NO liability to unhappy beneficiaries because NO privity
2. if malpractice caused financial loss to the estate, the attorney may be liable (survival action for tort recovery) |
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Term
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Definition
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Term
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Definition
| gift of personal property distinguishable from rest of estate at time of will execution |
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Term
| specific bequest of general nature |
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Definition
| gift of personal property NOT distinguishable from rest of estate UNTIL testator dies |
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Term
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Definition
gift of personal property not sufficiently described to be specific (e.g., cash)
-can be general or demonstrative (payable out of a designated fund; but, balance payable from other assets |
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Term
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Definition
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Term
| ademption of specific gifts by extinction |
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Definition
if specifically gifted item NOT in estate when testator dies, beneficiary does NOT take a substitute gift or value
exceptions: insurance proceeds paid after testator's death; executory Ks paid after testator's death; proceeds from sale by guardian/conservator if traceable |
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Term
| ademption by satisfaction |
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Definition
a testamentary gift under the will given inter vivos between time of will execution and death (prepayment; like advancement in intestacy)
proof: in writing that is made at time of gift AND signed by donor or donee |
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Term
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Definition
1. gifts of shares in publicly-traded corps normally general gifts and do NOT adeem unless testator indicates that he actually owns the stock
2. gifts of stock in closely-held corps are always treated as specific gifts and subject to ademption
3. stock splits are treated as specific (regardless of "my," public, or close)
4. beneficiary takes resulting shares from mergers, takeovers, etc. |
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Term
| debts owed on specific gifts |
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Definition
NOT exoneration (i.e., paid off by other estate property); beneficiary only receives testator's equity in the specifically given property
exception: testator provides otherwise in the will (must be clear) |
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Term
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Definition
when gifts fail due to inadequate estate property to satisfy all gifts, gifts are abated in this order (pro rata within each class):
1. intestate property
2. residuary property
3. general gifts
4. demonstrative gifts
5. specific gifts
6. items that qualify for estate tax marital deduction |
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Term
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Definition
gift fails because beneficiary fails to survive testator or treated as predeceased, gift can be:
(i) distributed as provided under express terms of will if testator planned for predeceased
(ii) save by anti-lapse statute
(iii) go via residuary clause
(iv) go via intestacy |
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Term
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Definition
prevents lapse by substituting the issue of the predeceased beneficiary; requires:
1. predeceased beneficiary was testator's issue, brother, or sister; AND
2. predeceased beneficiary left at least one issue who survives testator |
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Term
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Definition
| NO impact on validity of pre-marriage will; but, surviving spouse will have right of election |
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Term
| divorce, annulment, and separation |
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Definition
generally, if the court renders a final decree of divorce, annulment, or separation after execution of a will, all gifts and fiduciary appointments in favor of former spouse are revoked by operation of law (treated as predeceased)
note: merely filing or having separation agreement does NOT automatically trigger revocation UNLESS the agreement specifically waives rights under EPTL
exceptions:
1. gifts to ex-stepchildren NOT revoked
2. appointment of former spouse as guardian of children NOT revoked
3. if couple remarries, provisions restored |
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Term
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Definition
| child born or adopted after will execution may receive a forced share of testator's estate; but, children alive at execution and not beneficiaries have NO protection |
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Term
| pretermitted children: NO protection |
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Definition
1. child provided for by a settlement; OR
2. child is provided for or mentioned in the will |
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Term
| pretermitted children: forced share if testator had one or more children at execution |
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Definition
1. if no provision for any children, child gets nothing
2. if provision for one or more children, child shares in gifts to the other children as if class gift
3. if intention was to make only limited provision for children, child receives intestate share |
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Term
| pretermitted children: forced share if testator NO children at execution |
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Definition
| child receives intestate share |
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Term
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Definition
court will consider extrinsic evidence to resolve the ambiguity:
1. facts and circumstances; AND
2. statements testator made to drafting attorney |
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Term
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Definition
court will consider extrinsic evidence to resolve the ambiguity:
1. facts and circumstances;
2. evidence of testator's statements of intent to 3rd parties; AND
3. statements to drafting attorney |
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Term
| incorporation by reference |
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Definition
| NY does NOT recognize incorporation by reference (extraneous document referred to by will) except with respect to pour over trusts |
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Term
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Definition
operates only if a certain event occurs or does not occur
-presumption against conditional wills; thus, language must be precise |
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Term
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Definition
single testamentary document containing wills of 2+ people, typically married couple
-presumed NOT contractual |
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Term
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Definition
wills of 2 persons containing parallel dispositive provisions (sweet heart wills)
-presumed NOT contractual (i.e., either spouse can change theirs) |
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Term
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Definition
will executed or not revoked as the consideration for a contract
-proof of K: an express statement of intent that the will's provisions are intended to constitute a K between parties required
-revocation: contractual joint will can be revoked by agreement between parties while alive, but deceased spouse's estate cannot revoke a contractual will on behalf of the deceased spouse
-breach: injured beneficiaries may sue to impose constructive trust on property they should have received under the K |
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Term
| revocation by physical act |
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Definition
1. intent to revoke
2. mental capacity (also, destruction induced by undue influence, duress, or fraud likewise ineffective
3. physical act (may direct someone else to destroy/cancel but must be done at testator's request, in his presence, AND in the presence of 2 witnesses
-partial revocation NOT recognized in NY |
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Term
| revocation by subsequent will or codicil |
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Definition
the will or codicil must meet all will formalities and either:
(i) express revocation; OR
(ii) revocation by inconsistency: new will completely disposes of testator's property, but if new will only partially disposes of testator's property, old will revoked only as to inconsistent parts |
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Term
| presumption of non-revocation |
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Definition
1. will found in normal location; AND
2. no suspicious circumstances |
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Term
| presumption of revocation |
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Definition
if unable to produce original will or it is found in damaged condition and was in possession of testator or he had ready access to it when last seen, presumed that testator destroyed or damaged with intent to revoke
-does NOT arise if last seen in possession of someone adversely affected by its contents (e.g., disinherited heir) |
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Term
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Definition
possible to prove but difficult to overcome revocation presumption; proponent required to prove:
1. lost will was duly executed;
2. cause of non-production (e.g., destruction by fire, flood, etc.); AND
3. provisions of the wills are proved clearly and distinctly by at least 2 credible witnesses or by a copy/draft of the will proved to be true and complete |
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Term
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Definition
| NO revival when second will revokes first, then second is revoked; treated as 2 legal documents |
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Term
| express conditional revocation |
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Definition
| testator may state in revoking instrument that a revocation is effective upon the happening (or non) of a named event |
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Term
| implied conditional revocation/dependent relative revocation |
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Definition
T revokes first will, then executes second will but second is invalid-->whether revocation of first was impliedly conditioned on validity of second depends on T's intent
-the more similar, the more likely court will apply DRR and vice versa
-unclear whether recognized in NY, so discuss application of DRR AND NOT applying |
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Term
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Definition
| heirs or beneficiaries of prior wills |
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Term
| will contest: burden of proof |
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Definition
| contestant has burden to prove will is invalid |
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Term
| will contest: failure to meet elements of valid will |
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Definition
| lack of legal capacity, testamentary capacity, testamentary intent, and formalities |
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Term
| will contest: insane delusions |
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Definition
| persistent belief in supposed facts that are against all evidence, probability, and control; destroys capacity ONLY IF nexus between delusions and property disposition |
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Term
| will contest: undue influence elements |
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Definition
1. influence must have existed and was exerted at time of will execution;
2. the influence overpowers T's mind; AND
3. but for causation |
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Term
| will contest: undue influence evidence |
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Definition
1. direct
2. circumstantial: factors, none of which are conclusive, include unnatural disposition, opportunity, confidential/fiduciary relationship, T's ability to resist, beneficiary involved in drafting/execution
3. fiduciary relationship: inference allowed if will makes gift to person in confidential relationship AND active in preparing the will
4. drafting attorney as beneficiary (automatic inquiry)
5. drafting attorney as executor: must give written notice that any person can be executor, executor receives commission, AND entitled to legal fees for repping estate; T must sign written disclosure in presence of 2 witnesses; if attorney fails, he receives 1/2 commissions |
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Term
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Definition
| like undue influence but connotes violent conduct (e.g., under threat of physical harm) |
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Term
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Definition
T's error when NO evil conduct causing mistake to arise
1. mistake in factum/execution: T is in error regarding ID or contents of instrument and thus lacked testamentary intent
2. mistake in inducement: T mistaken as to some extrinsic fact and makes will based on that fact-->NO remedy because courts have NO right to modify/reform absent evil conduct |
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Term
| in terrorem/no-contest/forfeiture provisions |
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Definition
NY enforces in terrorem clauses even if contestant was in good faith and had probable cause to file contest
exceptions:
1. forgery
2. claim that will was revoked by later written will (but NOT if contest on ground that T revoked by physical act)
3. contest filed on behalf of a minor or incompetent
4. construction action to interpret or fix ambiguity
5. objection to jurisdiction of court
safe harbor: potential contestant may examine in discovery the following people without triggering clause:
(i) person who prepared will;
(ii) attesting witnesses;
(iii) will proponents; AND
(iv) nominated executors |
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Term
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Definition
must be removed from estate before distributing property under will or via intestacy:
1. right of survivorship (e.g., joint bank accounts, joint stock accounts, pay on death securities)
2. contract rights (e.g., life insurance, retirement benefits, annuities) UNLESS payable to estate instead of named beneficiary
3. property held in inter vivos trusts
4. property over which decedent had power of appointment |
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