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mrd367-w

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QuestionAnswer
Valid Execution of a Will 1)18+ 2)Signed by testator (T) 3)T's sig at "END THEROF" 4)T must SIGN the will or ACKNOWLEDGE sig at presence of each W 5)Publication 6)2 attesting Ws sign 7)Exec ceremony completed w/in 30days of 1st W signing
Intestate succession *1)Surviving spouse *2)Children 3)Grandchildren 4)Parent 5)Siblings 6)Others
Child born out of wedlock A nonmarital child has FULL INHERITANCE rights from mother and mother's family. BUT a nonmarital child inherits from the BIRTH FATHER only if paternity is established by one of four tests.
Will cut in half when found. If the Will was last seen in T's possession, apply the presumption for DAMAGED wills. If Will was last seen in possession of someone ADVERSELY EFFECTED by its contents, no presumption. Also no presumption where Will left w/ attorney for safekeeping
Testamentary Substitutes "T-Subs get a LEG UP"-**Totten trusts; **Survivorship estates; Lifetime transfers w/ strings attached; Employee pension, profit-sharing, and deferred comp plans; *Gifts (> $13k or causa mortis) made w/in 1 yr of death; US bonds; Powers of Appointment
No-Contest Clauses aka "in terrorem" clauses. A clause in a Will "DESIGNED to PREVENT a disposition from taking effect in case the will is contested by the beneficiary" Under EPTL, the clause is given FULL EFFECT even if there was probable cause to challenge the will.
Nonmarital child's inheritance rights from FATHER. NC inherits from FATHER if 1)F marries M after NC's birth("legitimation by marriage") 2)"ORDER OF FILIATION" in paternity suit is entered adjudicating man to be C's father 3)F files witnessed + notarized affdvit of pat 4)CLEAR AND CONVINCING evidence
Disqualification of spouse DISMAL: Divorce, Invalid divorce (ie divorce not recognized as valid under NY Law), Sep decree, Marriage VOID (incestuous or bigamous), Abandonment or Lack of Support
What does it mean to "publish" the will? Part of 7-pt test for valid execution. Publication requires T to communicate to Ws that they are witnessing a Will (and not some other legal document), by declaring the doc to be her "Last Will and Testament"
What is required of attesting witnesses? Attesting Ws must attest to T's sig when T signed the Will (or acknowledge his sig). If T forgot to sign when Ws signed, and added sig in Ws' presence later, W is DENIED PROBATE b/c it's not a CONTEMPORANEOUS TRANSACTION.
Interested Witness Statute Validity of the Wil is NOT affected if a Will beneficiary is also an attesting witness, BUT the disposition to the witness is VOID [UNLESS 2 EXCEPTION]
What constitutes a valid revocation of a will? A Will can be revoked either by SUBSEQUENT TESTAMENTARY INSTRUMENT, executed w/ appropriate formalities, OR, by PHYSICAL ACT (e.g. burning, tearing, cutting) BUT there must be an INTENT TO REVOKE.
When a Will that was last seen in T's possession or control is NOT FOUND AFTER DEATH -> PRESUMPTION that T REVOKED Will by PHYSICAL ACT w/ INTENT to revoke.
When a W last seen in T's possession or control is found after T's death in DAMAGED condition -> PRESUMPTION that T was the one who revoked (not that someone else damaged it).
Dispositions to an attesting witness VOID unless there are, at the time of execution of an attestation, at least two other attesting witnesses to the Will who receive no beneficial disposition"
Lifetime gifts to an intestate distributee Unlike common law, NY's EPTL has rejected the presumption that lifetime gifts are "advancements". Thus, no advancement unless proven by: CONTEMPORANEOUS writing made at time of gift that was SIGNED by donor or the donee.
Attestation clause Appears below T's sig line and above the Ws' sig lines, and recites all elements of due execution. Clause is PRIMA FACIE evidence of facts presented.
Self-proving affidavit (SPA) Wts sign SWORN stmt in presence of an attny that recites all smtms they would make if called to testify in ct. Proc:Can be signed any time after Wll is exec. Wll is admssible to prbte on strgth of sworn recitals in the SPA unless an INTERESTED PARTY obj
Lawyer malpractice (*ripe*) No privity of contract between beneficiaries and the lawyer. Duty is only to contract[p27?]. BUT there is privity or relationship approaching privity bw person administering estate and the lawyer.
Termination of marriage after Will execution If a Ct renders a FINAL DECREE of divorce, annulment or separation after exec of Will, all gifts and fiduciary appointments infavor of the former spouse are revoked by operation ow law (ie read the Wll as if spouse predeceased T)
Termination of marriage after Will execution (EXCLUSIONS to rule) a)All gifts and fid appts in favor of issue of former spouse NOT revoked by operation of law. b)Appt of former spouse as guardian of couple's children NOT affected. c)Reconciliation and remarriage RESTORE provisions in favor of former spouse.
Ex30:W's Will devises G'acre to husband(H) and rest of her estate to brother(B). Wl provides:"Hank is to serve as executor and guardian of our daughter(D) if he is able; otherwise B is to serve as exec and guard." W/H divorce in '06, W dies in'07. Divorce revokes gift to H, so it passes to residuary, which goes to B. Fid appts are also revoked, so B serves as exec. H serves as guard b/c appt for guardianship not revoked. No anti-lapse bc H is husband, not bro, sis or issue.
If H+W divorce before W dies, can husband rec'v life insurance proceeds from wife's life insurance policy that names "my husband Hank" as primary beneficiary? *RIPE* NO. Now a final decree knocks out spouse from certain things that pass by op of law (e.g. life insurance, totten trusts, jt accounts).
Anti-lapse statute If a beneficiary dies during T's life, gift to beneficiary lapses unless gift is saved by anti-lapse statute. NY's anti-lapse statute vests the gift in the dead beneficiary(DB)'s issue if DB was T's issue, bro, or sis AND DB leaves issue who survive T.
T's Will bequeathed $80m to his daughter, who has four children. D filed a proper inst of disclaimer (and separate aff that no consideration rec'd) w/in 9 months after T's death. Anti-lapse applies. Disclaimant is considered to have predeceased T. D is daughter of T and she leaves issue that survives T. Thus, D's children receive the $80m
T's Will devised Building "to my brother B" and residuary estate to "my sis S". B dies during T's lifetime and was survived by his wife, W and daughter D. B left Will that devised "all my prop" to W. Then T died survived by W, D and S. Anti-lapse applies to T's devise to B. B is brother and leaves issue, D, surviving T. D takes Building (despite B's Will) b/c ALS provides substitute taker. Gift doesn't pass to B's estate.
T's Will devised Building "to my bro B if he survives me". B died during T's lifetime, survived by his Daughter D, who survived T. No anti-lapse. A condition to bequest trumps anti-lapse. Thus, the lang "if he survives me" controls and the gift fails by its own terms. [who gets the Building?]
Anti-lapse re: children adopted by non-relative. Ex: T's son adopted by non-relative but T still names son as beneficiary in Will. Son predeceased T, leaving children who survived T. Gen, an "adopted out" child has no inheritance rights from birth parents or other members of birth fam. BUT the anti-lapse statute would save T's devise b/c T SPECIFICALLY NAMED the adopted out son.
Interested Witnesses (Exceptions to the Rule) UNLESS a)Ints'd W would be an INTESTATE DISTRIBUTEE (in which case "whichever is least" allows distributee to take lesser of bequest under will or his intestate share, b)there were at least 3 Ws and 2 were disinterested ("supernumerary rule")
Statutory exceptions to "In terrorem" clauses Claiming FORGERY or claiming that will was REVOKED by later will [NB: Does not apply if contest is based on revocation by PHYSICAL ACT], 2)Filed on behalf of infant or incompetent, 3)Proceeding to CONSTRUE the will, 4)objection to JURISDICTION.
Safe Harbor Provisions re: "In terrorem" clauses Under the SCPA and the CPLR, a person considering contesting a will that contains a no-contest clause may examine: person who PREPARED the Will, ATTESTING witnesses, will PROPONENTS, and nominated EXECUTORS.
"In terrorem" clauses (consequences) Always mention that under the EPTL, an unsuccessful will contestant will be barred from taking under T’s will and also barred from taking any part of T’s estate that lapses into intestacy.
Revival of Revoked Wills No revivial except: Codicil that incorporates Will by reference and re-dates Will as of codicil; Later writing w/ testamentary formalities; or Re-execution.
Bequests to Drafting Attorney Even if no objection is filed, the Sur Ct AUTOMATICALLY inquires into whether a bequest to the drafting attorney was VOLUNTARILY MADE (known as "PUTNAM SCRUTINY").
Appointments of Drafting Attorney (eg Nicole executes a Will that names her lawyer Venice (N's longtime attorney who prepared the Will) as executor of Nicole's estate. Drafting attny who is named executor of T's estate must give WRITTEN DISCLOSURE to the testator that 1) ANY person can be named an executor and 2)Executor rec'vs a STATUTORY COMPENSATION and 3)Attny will ALSO be entitled to LEGAL FEES for representation.
Per capita vs. per stirpes [Ex 5, p7] Per CAPITA is the DEFAULT distribution under the EPTL. The initial division of shares is made @ the FIRST GENERATIONAL LVL of surviving takers, BUT the shares of deceased persons at that level are COMBINED and then DIVIDED EQUALLY among the nxt lvl.
Order of Priority for Appointment as Administrator of Intestate Estate (i)surviving spouse; 2)children; 3)grandchildren; 4)parents; 5)brothers or sisters 6)any other persons who are distributees, w/ preference being given to person entitled to largest share of estate.
Created by: mdiaz367