Friday, October 5, 2012

Wills, New York Bar Exam outline (work in progress)

Subsequent Events that affect a Validly Executed Will
1.  MARRIAGE of the Testator.
2.  After-born, after-adopted, or non-marital CHILDREN.
3.  Testator’s DIVORCE.
4.  A common disaster that causes SIMULTANEOUS DEATH of T and beneficiary.

5.  ADVANCEMENT of a bequest to beneficiary by T.
6.  RENUNCIATION by a beneficiary.
7.  The Cy Pres Doctrine on a CHARITABLE BEQUEST.
8.  Lapsed Legacies (Anti-Lapse Statute).
10.  WRONGFUL ACTS by a beneficiary causing T’s death.

MARRIAGE of the Testator.
-In NY, a surviving spouse (S.S.) can not be disinherited.
-A S.S. is entitled to at least 50% or 1/3rd of the decedent spouse’s net estate, whichever is greater.
-S.S. has “right of election.”
-A surviving spouse has a right of election, even if the decedent (a) dies and specifically disinherits the S.S.; (b) makes a will prior to marriage without mentioning the S.S.; c) leaves the S.S. with a bequest less than that which the S.S. could now elect, or (d) dies intestate.
-6 month statute of limitations (2 years after death), but surrogate can excuse late filing (up to 12 months).
-Can be waived.

-Implied Waiver: S.S. loses right to elect against deceased spouse’s estate if S.S. abandoned the other spouse and abandonment continued until the abandoned spouse’s death.
-Certain property is exempt (page 34).  

Testamentary Substitutes-Lifetime transfers or designations that are brought back into the estate for purposes of calculating the total electable estate.
-Transfers that, although made during T’s lifetime, are testamentary in nature and include:
1.  Gifts Causa Mortis (made in contemplation of death), freely revocable, are testamentary substitutes even if made before the marriage.
2.  Totten Trust Bank Accounts (freely revocable).
3.  Post-Marriage joint bank accounts/jointly held personal or real property (only to the extent that decedent contributed to the asset).  

4.  Lifetime trusts in which decedent retained right to invade, revoke, consume, or dispose of the principle.
5.  Assets (trust corpus) over which the deceased spouse held a general power of appointment exercisable during his/her lifetime.
6.  Gifts > $13,000 made by decedent within 1 year of death (includes gifts to charities).
7.  Proceeds of profit sharing, stocks/bonds, deferred compensation, I.R.A., pension plans where beneficiary designation made after September 1, 1992.
8.  Jointly held U.S. Savings Bonds.
9.  Property transferred in which decedent retained an income or possessory interest in property for his/her life.
10.  Shares of stock in T’s name, but designating a beneficiary followed by words “pay/transfer on death.”
11.  Corporate buy-sell agreement.
Creditor’s Rights to Testamentary Substitutes-Creditors have rights to non-probate assets if decedent maintained power to dispose of those assets during his lifetime.  
-Life insurance proceeds are protected. 
After-born, after-adopted, or non-marital CHILDREN. 
-If T had no child living when his will was executed, then the after-born child succeeds to such a share as would have passed to the child under intestacy.
-All beneficiaries under the will or benefiting from testamentary substitutes will contribute ratably to the child’s share.

-If T had one more more children living when will was executed and will provided for such living children, after-born child is entitled to share ratably in the total bequests made to those living children.

-If T had one or more children living when will executed and no provision made for ANY of those children, an after-born is not entitled to share in T’s estate.

-If T executes a CODICIL after child born, then child is no longer “after-born” and he will not be entitled to share in proceeds of will.

“After-born”: the child of the T born during T’s lifetime or in gestation at the time of T’s death and born thereafter.  
When Rights Attach-Afterborn’s estate rights enter if after-born was not provided for during T’s lifetime nor mentioned in T’s will.
-T has provided for after-born during T’s lifetime if: took out life insurance policy naming afterborn as a beneficiary, established a joint bank account/Totten Trust account for child; or made a gift to that after-born child under the Uniform Gifts to Minors act.  
-In such an event, an after-born would have no right to seek under the will.
Adopted Children have the same rights as biological children of their adoptive parents.  
Adopted or non-marital children are treated exactly like biological children (absent contrary language in the will itself). 
Divorce, Annulment, Dissolution, or Separation (DADS) Judgment
-Automatically revokes the bequest in a will to the other spouse as well as any provision naming him/her as an executor/trustee (unless well expressly states otherwise).
-If there is a REMARRIAGE, it revives the bequests under an existing will.
Codicil after divorce-Republishes the will as of the date of the codicil.  Revives the bequest to the divorced spouse that had been revoked by the divorce by operation of law.
-Also affects assets passing outside the will (treats spouse as immediately predeceasing the deceased spouse).
Separation AGREEMENT-has no effect upon an existing will unless the separation agreement expressly provides with specific reference.
-Revoking instrument must be executed with the same formalities as those required to execute a valid deed.

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