NYLE - New York Law Exam NY Trusts, Wills & Estates 1 — Questions and Answers
Question 1: Under New York EPTL 3-4.1, which of the following is a valid method to revoke a previously executed will?
- Orally declaring the will revoked before two witnesses
- Physically burning, tearing, or obliterating the will with the intent to revoke it (Correct answer)
- Filing a written notice of revocation with the Surrogate's Court
- Executing a durable power of attorney naming a different agent
Correct answer: Physically burning, tearing, or obliterating the will with the intent to revoke it
EPTL 3-4.1 permits revocation of a will by (1) a subsequent will or codicil, or (2) a physical act such as burning, tearing, cutting, canceling, obliterating, or destroying the will, performed by the testator or by another at the testator's direction and in the testator's presence, with intent to revoke. An oral declaration alone is insufficient.
Question 2: Under New York EPTL 3-3.3, the anti-lapse statute applies when a testamentary beneficiary predeceases the testator. For the statute to substitute the deceased beneficiary's issue, the beneficiary must be:
- Any friend or business associate named in the will
- A child or other descendant, or a brother or sister, of the testator (Correct answer)
- Any person related to the testator by marriage
- A creditor of the testator's estate
Correct answer: A child or other descendant, or a brother or sister, of the testator
EPTL 3-3.3 saves a gift only where the predeceased beneficiary was one of the testator's issue or a brother or sister and left issue who survived the testator; those issue take. Gifts to friends, in-laws or others lapse unless the will provides otherwise.
Question 3: Under New York EPTL 7-1.5 and CPLR 5205(c), which statement correctly describes the effect of a valid spendthrift trust provision?
- The beneficiary may freely assign future income payments to third parties
- Creditors of the beneficiary may garnish trust income before it is distributed
- The beneficiary's interest cannot be voluntarily transferred or reached by creditors before distribution (Correct answer)
- The trustee must seek court approval before making any discretionary distribution
Correct answer: The beneficiary's interest cannot be voluntarily transferred or reached by creditors before distribution
A valid spendthrift provision restrains voluntary transfer of the beneficiary's interest and, under CPLR 5205(c), protects the trust property from creditors while it remains in the trust (subject to limited exceptions, such as the 10% income execution in CPLR 5205(d) and support claims).
Question 4: Under New York EPTL 7-1.17, what is required for the creation of a valid inter vivos (living) trust in New York?
- A writing executed and acknowledged by the creator (or executed in the presence of two witnesses who sign it) (Correct answer)
- A writing signed by the creator alone, with no acknowledgment or witnesses required
- An oral declaration before a notary public is sufficient
- Filing a trust instrument with the Surrogate's Court before the trust becomes effective
Correct answer: A writing executed and acknowledged by the creator (or executed in the presence of two witnesses who sign it)
EPTL 7-1.17(a) requires every lifetime trust to be in writing and executed and acknowledged by the creator in the manner required to record a deed, or executed in the presence of two witnesses who sign the instrument. Oral lifetime trusts are not valid, and no court filing is required.
Question 5: Under New York EPTL 2-1.6, the Uniform Simultaneous Death Act, if two individuals die in a common accident and it cannot be determined who survived the other, how is their property distributed?
- The older person is presumed to have survived the younger
- Each person is deemed to have predeceased the other for purposes of distributing that person's own property (Correct answer)
- All property passes to the State of New York by escheat
- The court holds the combined estate in trust until a surviving heir is identified
Correct answer: Each person is deemed to have predeceased the other for purposes of distributing that person's own property
Under EPTL 2-1.6, when two persons die simultaneously or under circumstances making it impossible to determine the order of death, each is treated as having predeceased the other solely for purposes of distributing that individual's property. New York also applies a 120-hour survival requirement — a beneficiary must survive the decedent by 120 hours to take.
Question 6: Under New York EPTL 3-1.1, what is the minimum age requirement for a person to execute a valid will in New York?
- 16 years old
- 17 years old
- 18 years old (Correct answer)
- 21 years old
Correct answer: 18 years old
EPTL 3-1.1 provides that any person 18 years of age or older and of sound mind and memory may make a will. EPTL 3-2.2 allows nuncupative or holographic wills only for armed-forces members in actual military service and mariners at sea.
