Wills/ estates 2

Question 1

Once a will is revoked, how can it be revived? (2)

Answer 1

1. it is duly re-executed OR

2. it is republished by council

Question 2

What are the only 2 ways a will can be revoked?

Answer 2

1. by subsequent testamentary instrument (ex codicil)

2. by physical act w/ intent to revoke (ex burning, tearing, cutting, anything done to testator’s signature)

Question 3

When may a lost/ destroyed will be admitted to probate? (4)

Answer 3

1. will was duly executed
2. will was not revoked
3. will proponent overcome presumption against will b/c of initial non-production
4. will proponent must show all will provisions are clearly & distinctly proved by 2 witnesses

Question 4

When will a handwritten (holographic) will be valid? (2)

Answer 4

1. witnessed by 2 attesting witnesses & all other reqs for execution met
2. executed in state that recognizes holographic wills (foreign wills act)

Question 5

Under the foreign wills act, when is a will admissible to probate? (3)

Answer 5

1. validly executed under law of state where it was executed (regardless of testators domicile)
2. validly executed under NY law
3. validly executed under law of state where testator was domiciled (when will executed or at testators death)

Question 6

Who is an interested party?

Answer 6

party who would be adversely affected by admitting the will to probate

• could be an intestate distributee or beneficiary
• party must be adversely affected to have standing to contest will

Question 7

When will 1 witnesses’ testimony suffice if a will is not self-proved? (4)

Answer 7

IF other witness is

1. dead
2. absent from state
3. incompetent
4. cannot be found w/ due diligence

Question 8

If no witnesses can be found, what 2 things must proponent provide?

Answer 8

1. testator’s signature

2. 1 witnesses signature

Question 9

What is a self-proving affidavit of a will?

Answer 9

sworn statement signed by will witnesses in presence of attorney that recites all info that would be necessary in court (serves as substitute for live testimony)

Question 10

When is otherwise admissible will to probate based on self-proving affidavit not admissible?

Answer 10

When an interested party objects to the will being admitted (then 2 attesting witnesses must testify)

Question 11

When will both attesting witnesses to a will have to testify to show due execution?

Answer 11

if will is not self-proved (via self-proving affidavit)

Question 12

In what 2 ways does a testator “publish” her will?

Answer 12

1. declare it to be her will

2. communicate to witnesses that they are witnessing a will, not another legal document

Question 13

When will words following (after) a testators signature be given effect?

Answer 13

matter following signature is SO material that giving effect to provisions above signature and not matter below would defeat testators intent (if so, entire will invalid)

Question 14

What is the limit beyond which a decendent’s estate should not be distributed?

Answer 14

grandchildren of decedents grandparents AKA 1st cousins
-if all 1st cousins pre-deceased decendent, then surviving 2nd cousins may take but no one beyond that (all 1st cousins must be dead for 2nd cousins to take)

Question 15

What are the 4 requirements of a validly executed will?

Answer 15

1. signed by testator 18 and over
2. signed at end of will
3. in presence of 2 attesting witnesses (proxy cant be attesting witness, must sign w/ in 30 days of ea other)
4. testator must publish will

Question 16

How can paternity be established to allow a child born out of wedlock to inherit? (4)

Answer 16

1. legitimated by marriage
2. order of filiation proceeding during fathers lifetime
3. father files affidavit of paternity w/ putative father registry
4. paternity established after father’s death by 1. C&C evidence (gifts, visits), 2. open & notorious acknowledgement of child, 3. DNA test plus other C&C evidence

Question 17

What will allow a child born out of wedlock to inherit from their natural father?

Answer 17

paternity (child inherits only if paternity is establish

Question 18

What are the inheritance rights of step-children?

Answer 18

no inheritance rights from deceased step-parent unless step-parent adopted step-child (then step-child can inherit from adopted parent and both natural parents)

Question 19

What are the 2 inheritance rights of adopted children?

Answer 19

1. full inheritance rights from adopted family & vice versa

2. no inheritance from natural parents (cut off by adoption)

Question 20

In what 5 situations will a spouse be disqualified from taking his/her share under intestacy rules?

Answer 20

1. divorce
2. invalid divorce (sought by surviving spouse outside NY that’s invalid under NY)
3. separation decree
4. marriage void (incestuous/ bigamous)
5. abandonment/ lack of support

Question 21

How does a child inherit if they are related to the decendent by both natural and adopted relationships?

Answer 21

child inherits under natural relationship only unless decedent was the adopting parent (then child inherits under adoptive relationship only)

Question 22

Under intestate succession, what does a surviving spouse take if there are children/ issue?

Answer 22

spouse takes 1st $50,000 plus 1/2 residuary, issue takes leftover residuary
-if estate is worth less than 50k, spouse gets whole estate

Question 23

In NY, how are shares of an estate distributed under intestate succession?

Answer 23

“per capita” (not per stripes)

• initial division of shares @ 1st generational level where there are survivors (1 share for ea line of issue (children)
• all living persons @ 1st level take
• combine shares of pre-deceased ppl at 1st level and divide equally among their issue

Question 24

What is a distribute?

Answer 24

person who inherits property via intestate sucession (no will)

Question 25

What is a beneficiary?

Answer 25

person who receives bequest (legacy/ device) under will

Question 26

What is a codicil?

Answer 26

doc that amends a previously executed will - so long as no revocation language in codicil (read original will & codicil together) - codicil (will 2) only revokes original will to extent there are inconsistent provisions