Trusts, Wills & Estates Flashcards

A decedent dies intestate in New York, survived only by his spouse and his two adult children. If the decedent's net estate is valued at $250,000, how will the assets be distributed under the Estates, Powers & Trusts Law (EPTL)?

Answer: The spouse receives the first $50,000 plus one-half of the remaining $200,000 ($150,000 in total), and the two children share the other $100,000.

Under EPTL 4-1.1(a)(1), when a decedent is survived by a spouse and issue, the spouse takes $50,000 plus one-half of the balance; the issue share the other half. Here the spouse takes $50,000 + ($200,000 x 1/2) = $150,000, and the two children share the remaining $100,000 ($50,000 each).

A testator's will specifically devises 'my Rolex watch' to his friend. A year before the testator's death, the watch is stolen and is never recovered. At the time of the testator's death, what is the friend entitled to receive from the estate?

Answer: Nothing, because the gift is adeemed.

This is ademption by extinction. The will makes a specific bequest of 'my Rolex watch'; because that property is not in the estate at death (stolen and never recovered), the gift fails and the legatee takes nothing. The friend is not entitled to the watch's value, a substitute, or proceeds.

Under New York's General Obligations Law, a power of attorney is considered 'durable' by default. What is the primary legal effect of this durational feature?

Answer: The agent's authority continues even if the principal later becomes incapacitated.

The defining characteristic of a 'durable' power of attorney in New York is that the agent's authority to act on behalf of the principal continues after the principal becomes incapacitated. Unless the document expressly states that it terminates upon incapacity, the agent's powers remain in effect.

Which of the following is NOT an essential element for the creation of a valid express trust in New York?

Answer: Approval of the trust by the Surrogate's Court

Under EPTL 7-1.17(a), a lifetime trust must be in writing and executed and acknowledged by the creator (or signed in the presence of two witnesses). A valid express trust also needs intent, a definite beneficiary and identifiable property. Court approval is not an element of a valid trust.

A testator signs her will in the presence of Witness A, who immediately signs as a witness. The next day, the testator meets with Witness B, acknowledges her signature on the will, and Witness B signs. The will execution ceremony is supervised by an attorney. Is the will validly executed under the EPTL?

Answer: Yes, because the witnesses attested to the testator's signature within the required 30-day period.

EPTL 3-2.1(a)(4) requires that the attesting witnesses sign within a 30-day period of each other. The testator does not need to sign in the presence of both witnesses simultaneously; she can sign in the presence of one and acknowledge her signature to the other separately. As long as the formalities are completed within the 30-day window, the execution is valid.

A beneficiary under a New York will containing a valid in terrorem (no-contest) clause has concerns that the testator was subject to undue influence. Which of the following actions may the beneficiary take WITHOUT triggering the no-contest clause and forfeiting their inheritance?

Answer: Conducting pre-objection discovery by deposing the attesting witnesses and the attorney who drafted the will.

EPTL 3-3.5 provides several 'safe harbors' that allow a beneficiary to investigate a will without triggering an in terrorem clause. One of the most important is the right to conduct preliminary examinations under Surrogate's Court Procedure Act (SCPA) 1404, which permits the deposition of attesting witnesses and the will's drafter to gather facts before filing a formal contest.