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Disclaimer
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Write, sign & acknowl; affidavit of no consideration; w/i 9 mos of death; irrevocable. If unjust result, assume died 1 day after decedent.
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terms list
Disclaimer
Write, sign & acknowl; affidavit of no consideration; w/i 9 mos of death; irrevocable. If unjust result, assume died 1 day after decedent.
7 Reqts for a Validly Executed Will
18; signed; at the end; signed/ack in presence of each WT; publish the will; 2 attestating WTs, and two WT signs within 30 days.
Attestation Cl.
After T'or sign and above WT sign. Recites elements. PF evid. Still need live testimony.
Self-proving affidavit
Attached to back of will; signed and sworn in presence of atty; recites 7 pt test; subs for live testimony. W admissible on strength of affidavit unless interest party objects.
"Foreign" Wills
Valid if valid where EXECUTED; under NEW YORK law or under law of Tor's DOMICILE state, when executed or at death.
Holographic
handwritten - no signs. VOID (may be ok if foreign wills act applies and state recognizes them).
Nuncupative
oral - VOID, unless military, then void after 1 year; or seaman, then void 3 years after
Proxy revocation
At Tor's Request, In T'ors presence, with 2 other people.
Changing will
New will revoking old OR codicil. (both duly executed)
DRR
Dependent Relative Revocation - can bring back a revoked will if revoking will based on mistake of law and comes close to intended dispositionl
Reviving revoked will
Reexecution or republication of codicil
Lost wills
Proponent proves: lost will DULY EXECUTED & not revoked & Provisions CLEARLY AND DISTINCTLY PROVEN by 2 WTs or a copy proved to be true and complete."
Anti-Lapse
Bro/Sis or Issue, with surviving issue. Condition in bequest (" if Ellen survives me ") trumps anti-lapse. Adopted out kid's inheritance, if mentioned in the will, will not lapse if the kid predeceases and has issue.
Closing the class (recipient class like "all my sisters")
IF outright gift ("my stock"), closes at T'ors death. If life estate or income interest, with remainder of principal to class, class closes at death of LIFE TENANT/INCOME BENEFICIARY, not the T'or.
USDA
Uniform Simultaneous Death Act - presume property owner survived.
USDA + jointly held properrty
Prop passes as tho TiC involved, because USDA theoretically severs survivorship.
Effect of final decree of divorce; final decree of separation; or annulment on will
All gifts/appointments in favor of spouse are revoked by operation of law. Act as tho "spouse" predeceased T'or Revokes totten trusts, gifts, etc. Rt of survivorship becomes TiC.
Pertermitted child
Born after will. Generally not protected. But will take equal share with kids in a class if those kids are given somethin' and pertermitted child has no other provisions made for it. If gifts to other kids given equally, pertermitted takes proportionally from each. If kids get nothin, pertermitted gets nothing. If T only intended limited provision to kids, pertermitted just gets intestacy share. If no kids alive at time of will, pertermitted takes intestacy.
Disinheritance
If partial intestacy, words of negative bequest given full effect in NY.
Satisfaction of legacy
testate version of "advancement" -- same rules
Order of Abatement
Intestacy; Residuary; General (pro rata); Demonstrative (pro rata); Specific
Gifts of encumbered property
CL - exonerate through residuary estate. NY - no exoneration unless will says
Publicly traded corp stock - type of gift
General, even if it says, "my stock"
Closely-held
Specific - Adeems
Stock split
Specific for purposes of split.
TSLEGUP
Totten; Survivorship; Lifetime w/ strings; Employee pension (1/2); Gifts within year of death - 13000 & gifts causa mortis; US bonds; PoAs, if presently exercisable, general PoAs.
LOGPIT
Life insurance; One-half pension; Gifts less than 13000 w/i 1 year; premarriage irrevocable transfers; irrevocable made more than a year before death; transfers during marriage where Tor has life estate
Elective share estate
Generally, all T-sub, except: Survivorship w/ 3d before marriage: consideration furnished applies to 1/2; Survivorship w/ 3d during marriage: consideration furnished; Survivorship w/ spouse: 1/2 = Tsub
Satisfying elective share
amt needed/amount of remaining assets = %. Take this % of everyone's gifts.
Latent v. Patent ambiguity
Latent: can look at T'ors delcarations to 3d parties. Patent: cannot.
Joint wills
K to make a W or to not revoke other wills, can be estbalished by EXPRESS STMT of INTENT that provisions are to be a K between party. If survivor breaches, it causes a new will, imposes a constructive rust in favor of orig beneficiaries. K for JW can be revoked only when parties are alive.
Testamentary capacity
Understand nature of act; know nature and approx value of propertyl know object of bounty; understand dispositions
Undue influence
Contestor has burden of proving: EXISTENCE of influence; EFFECT was to overmind power and will; and produce wouldn't have happened BUT FOR the influence.
Putnam scrutiny
Autom inquire as to bequests to drafting atty
Atty as excecutor
Disclos in writing that anyone can be executor; executor gets commission; and atty will also get atty fees. Disc signed by 2 WTs. If not? Gets only 1/2 commission
In terrorem clauses
Given full effect except: If claim of forgery or revocation, and PC to believe so, no cl. If infant/incompetant, no cl. If construction proceeding, no cl. If objection to jx, no cl.
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