Beruflich Dokumente
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Intestate succession
A T who makes a will is presumed not to have intended intestacy and all
provisions in Ts will will be construed to avoid intestacy.
If a will was never executed, or it was not properly executed (SWEPT) then Ts
estate will pass under the law of intestacy. If the un-SWEPT was attempting to
revoke a prior will, then the courts will look to the prior will to distribute Ts
estate.
Where the decedent was survived by: (1 to 6)
o Surviving spouse, no issue, then S.S. gets 100%.
o S.S. and issue, then S.S. gets the first $50,000 plus 12 of the balance and
the issue gets other 12 by representation.
o Issue but no S.S., issue gets 100% by representation.
o No spouse, no issue but Ds parents and siblings are alive, then parents
take 100%.
o No spouse, no issue, no parents but siblings are alive, then siblings (or
issue of predeceased siblings [nephews and nieces] under anti-lapse) take
100% by representation.
o If none of the above survive, the net intestate estate is divided into two
equal parts with one part passing to Ts maternal grandparents side and
one-part to the paternal grandparents side of the family [in search of
living heirs (grandparents, aunts, uncles, 1st cousins, but only as distant as
children of first cousins)].
If there are no surviving heirs within this degree of kinship, (1 to 6 above), then
the intestate estate escheats to the State of New York.
H, W, 2 children and W is pregnant. H dies intestate with a $200,000 net estate:
A residuary clause in Ts will indicates the Ts strong intent that Ts property not
pass under the rules of intestacy. Thus, where the residuary is left to 2 or more
(my friends X and Y) but Y predeceased T, then Ys share will not pass into
intestacy but passes to the other co-residuary X.
Executing a will
To be valid, a will must be SWEPT:
o S: signed by an adult
o W: in writing
o E: signed at the end by the testator
o P: published
o T: signed by 2 witnesses (who dont have to be adults) must sign
within 30 days of each other, in the testators presence
NY requires strict adherence to the SWEPT procedures.
The will must be written and signed by an adult but NY recognizes nun
cuputative (oral wills with 2 witnesses) and holographic wills which are
unwitnessed, but written and signed entirely in the Ts handwriting. If
executed by a member of the armed forces or someone accompanying the
armed forces, in combat in an enemy country, or on the eve of embarking to a
war zone, it is good for 1 year following discharge from the service.
If T has become incompetent to execute a new will when the 1 year SOL
expires, then the old handwritten will remains indefinitely in effect until T
regains competency and can execute a new will.
T must sign the will at the very end. Any provision appearing under Ts
signature (other than the witnesss signature) will be disregarded by the
surrogate even though it was there when the will was signed. Likewise, any
amendment to the will made after its execution is in invalid whether inserted
above or below the signature.
A third person can sign for the T but it must be at Ts direction and in Ts
presence and there must be 4 signatures on the will: the 3rd persons signature,
the Ts signature signed by the 3rd person and 2 witness signatures.
At 2 witnesses (who do not have to be adults, can be minors) must sign the
will either separately or together but each must sign in front of T. T may sign
the will:
o 1. In the presence of the 2 witnesses or
o 2. Alone but he must later show and acknowledge his signature to the
2 witnesses but they do not have to see T sign the will
if the witnesses do not sign together, then to reduce the possibility of fraud, they
must sign within 30 days of each other but the EPTL creates a rebuttable
presumption that the 30 day period was met.
The T must publish the will, i.e., T or his attorney must declare that it is Ts will
Interested witnesses
If a beneficiary named in Ts will is also a necessary will witness then the will
is still valid but the witness forfeits the bequest. However, if at the time of its
execution, there were at least 2 other disinterested witnesses who received nothing
under the will then the extra witness will not forfeit his bequest b/c her testimony
is not necessary to establish the will. If 2 of the 3 witnesses or all 3 witnesses
were interested, then all will forfeit their bequests b/c at the time of the wills
execution, it was not witnessed by 2 people who received nothing under the will.
If the necessary interested witness is also an intestate distributee (a relative who
would benefit if there was no will), then the witness is permitted to take the
bequest in the will or her intestate share-whichever amount is less.
A necessary will witness is not disqualified from:
o 1. Taking under a subsequent codicil naming her as a beneficiary or
o 2. Acting as the trustee of a testamentary trust or as the executor who is
named in ts will since these appointments provide compensation for
services and are not testamentary bequests
if the attorney who drafted Ts will is named as the executor of Ts estate or the
will names another attorney or employee in the attorneys firm then the testator
must acknowledge in a separate document signed by T and signed by a
disinterested witness that T was aware that anyone could be the executor, and that
by naming Ts attorney, that attorney may receive 2 commissions (executors fees
and attorneys fees). Failure to obtain this document requires the surrogate to
reduce the executors fees by 50%.
Incorporation by reference
rebut the inference (to burst the bubble of the inference), then the surrogate may
infer that undue influence existed.
Under NYs Model Rules of Professional Conduct, a lawyer shall now:
o 1. Solicit any gift from a client; or
o 2. Prepare an instrument giving the lawyer or a lawyers relative any gift
unless the lawyer is related to the client AND a reasonable attorney would
conclude that the transaction was fair and reasonable.
The NY Court of Appeals has held that absent a family relationship, a bequest in
the will to the attorney who drafted the will gives rise to an inference or perhaps
a presumption of undue influence.
Events during Ts life affecting an executed will
Once a will or a codicil has been validly executed, then the following subsequent
events may affect distribution under Ts will: DAMN CAR LAW
D: Divorce
A:
M: Marriage
Marriage: Exempt property passes outside of the estate and is not considered part
of the estate for intestacy or right of election purposes. Exempt property cannot be
claimed by the decedents judgment creditors. Exempt property passes directly to
a surviving spouse, or, if there is no surviving spouse, to children under the age of
21. EPTL 5-3.1. In that regard, the following property is not an asset of the
estate but vests in the surviving spouse or children:
All housekeeping items, clothing of the decedent, computers,
musical instruments, electronic devices, clothing, furniture,
appliances, and jewelry not to exceed $20,000. This does not
include items used exclusively for business purposes. Also, if
jewelry was a specific bequest in the testators will, then it is not
considered exempt property.
Videotapes, discs, software, religious items, pictures, and books
not to exceed $2,500;
Cash or other personal property not to exceed $25,000 (but only
after payment of funeral expenses);
One of the decedents cars or the value thereof not to exceed
$25,000 net value; and
Domestic and farm animals, feed for 60 days, farm machinery, a
tractor, and lawn tractor not to exceed $20,000.
If the automobiles value exceeds $25,000, the spouse can take the car
and reimburse the estate for the value exceeding $25,000. The spouse also
can take the value of the car (not to exceed $25,000) in lieu of the car
itself. If the testator made a specific bequest of the car, the spousal
exemption will defeat that bequest, but if the cars value exceeded
$25,000, then that excess amount paid back to the estate by the spouse
goes to the specific legatee. If the decedent did not have any of the above,
then no allowance can be made for the value. Exempt property (which can