WILLS

- Surviving spouse takes whole estate

• - Surviving spouse takes $50K + 1/2 residuary
• - The issue take left over residuary
• - If entire estate less than $50K, whole estate goes to surviving spouse

- If no child has predeceased decedent, passes to children in equal shares

• - Passes to the alive children and the issue of the dead children by representation (per capita at each generation)
• - STEP 1: Property is divided into as many shares as there are issue at the first generational level at which there are survivors
• - STEP 2: All living issue at first generational level take one share each
• - STEP 3: The shares of the deceased issue at the first generational level are combined and then divided equally among the takers at the next generational level same way
• - Issue in same generation will always have equal shares

- Distribution is (1) all to parents or surviving parent, (2) all to issue of parents (i.e siblings and issue of deceased siblings) who take per capita at each generation (3) if not survived by parents or issue of parents, 1/2 to maternal grandparents/surviving grandparent or to their children/grandchildren who take per capita at each generation AND 1/2 to paternal grandparents.......

• - Most states use per stirpes: The issue of the predeceased child takes the share that the predeceased child would have taken, if alive
• - In NY, Per capita is default, and will be applied even if decedent had will, UNLESS will changes distribution to per stirpes.

• - They have full inheritance rights from adopting family and vice versa if adopted kid dies first
• - If adopted by a new family, no inheritance rights from natural parents/birth parents or other members of birth fam EXCEPT if child is adopted by spouse of birth parent, child & his issue can inherent from both adopting parent and either birth parent
• - If adopted by relative, child inherits under the birth relationship UNLESS decedent was the adopting parent, then child inherits under adoptive relationship

• - Generally, non maritial child has full inheritance rights to mother/mother's fam.
• - Inherits from birth father if paternity test is established by 1 of 5 tests: (1) father marries the mother after child's birth, (2) ct order says man is kid's dad, (3) father files notarized affidavit of paternity, (4) paternity established in probate proceeding by clear and convincing evidence and man openly and notoriously acknowledges kid as his own, or (5) DNA test and clear and convincing evidence if DNA test rebuteed

• - Rule: Assume surviving spouse predeceased decedent spouse and drop their share to their kids (DISMAL)
• - Divorce
• - Invalid divorce: surviving spouse got divorce not recognized as valid under NY law
• - Separation Decree: Needs to have specific lang waiving surviving spouse's rights under EPTL
• - Marriage is void (i.e. incestuous, bigamous, fraudulent)
• - Abandonment or lack of support

• - Common Law: Presumptively advancement of intestate share to be taken into acct when distributing estate at death
• - NY: No advancement rule unless proven by (1) contemporaneous writing made at time of gift, and (2) signed by donor or donee

• - No one can be compelled to be distributee or to take property. Therefore they can disclaim/renounce interest in whole or in part. If done, they are considered to have predeceased the decedent.
• - Must be (1) in writing and notarized, (2) accompanied by affidavit stating no consideration made for disclaiming, (3) irrevocable, (4) filed w/Surrogate's Ct w/in 9 months after date of death
• - Cannot disclaim Medicaid.

• - (1) Must be 18
• - (2) Signed by testator (person making will) or by someone at his direction
• - (3) T's signature must be at the "end thereof"
• - (4) T must sign will/acknowledge his signature in presence of each witness
• - (5) T must publish will - tells witnesses that doc is will
• - (6) Need at least 2 attesting witnesses (dont need to sign in each other's presence)
• - (7) Ceremony must be completed w/in 30 days, running when 1st witness signs

• - A later amendment or supplement to a will
• - Must be executed with 7 pt test

- Words before signature given effect. Words after signature NOT given effect

• - Person who offers will for probate is the will proponent and has burden of proving due execution
• - Attestation clause: Appears below testator's signature line and above witness signature lines and recites all elements of due execution. Act as prima facie evidence of the facts presented in the clause. Corroborates witness testimony, does not replace live testimony
• - Self proving affidavit: Attached to back of will and is mechanism which recognizes that validity of most wills is not contested. Witnesses sign "sworn" statement in presence of atty that recites all elements of 7 pt test. This is a sub for live testimony. Makes will admissible unless interested party objects. If so, requires proof of due execution.

• - Rule: Validity of will is not affected if will beneficiary is also an attesting witness BUT the bequest to witness is VOID unless; (1) there were at least 3 witnesses, two disinterested, OR (2) interested witness would be an intestate distributee if T died w/o will
• - If exception applies, witness beneficiary takes lesser of (1) the bequest under will or (2) his intestate share
• - First ask, "is it interested witness?" Then ask, "what would intestate share have been?"

- Rule: Will admissible in NY if validly executed under (1) law of state where will was executed, (2) NY law, OR, (3) law of state where testator was domiciled either when will was executed or at death. Once admitted to probate in NY, NY law governs

• - Holographic: Entirely in T's handwriting, signed by T but NOT witnessed
• - Nuncupative: Oral will (i.e. DVD, CD, YouTube)
• - Rule: Both VOID in NY except for members of armed forces during war (void 1 yr after discharge) and mariners at sea (3 yrs after discharge)
• - NOTE: If a state recognizes holographic will and person dies in NY, under foreign wills act, it would be OK

• - Will can be revoked 2 ways: (1) by subsequent testamentary instrument, (2) by physical act w/intent to revoke
• - Express revocation: "I hereby revoke all wills heretofore made by me"
• - Implied revocation: To the extent possible, you read the 2 instruments together. 2nd will treated as codicil to 1st and only revokes 1st to extent there are inconsistent provisions. If wholly inconsistent, 1st will revoked.
• - Physical act of another requires (1) testator's request, (2) in testator's presence, (3) witness by 2 ppl. 4 ppl in room!
• - Words added to will after signed are disregarded
• - Partial revocation by physical at not recognized in NY

• - Rule: If T executes will that is revoked by later will containing revocation clause, first will CANNOT be revived by T by merely revoking later will.
• - Can revive only by (1) re-execution, signed again by T and 2 witnesses, or (2) doctrine of republication by codicil, T validly executes codicil to first will, making changes to that will
• - In other words, you need validly executed doc to make a change

• - Rule: DRR permits a revocation of a later will to be disregarded. Effect would be to permit probate of later will
• - (1) must be premised on mistake of law, (2) disposition that results from disregarding the revocation of later will must come close to what T intended when he attempted to revive earlier will.
• - If given DRR question, argue both sides

• - Arises in 2 situations; (1) DRR and (2) truly lost wills
• - Lost will proponent must prove that (1) lost will/later will was duly executed, refer to 7 pt test, (2) lost/later will was not revoked either by overcoming presumption of revocation or prove revocation should be disregarded, (3) wills provisions are clearly and distinctively proven by each of at least 2 credible witnesses, or by copy or draft of will proved to be true and complete
• - NOTE: revoking a codicil does not revoke entire will. Provisions not changed by codicil remain