NYLE - New York Law NY Trusts, Wills & Estates Questions and Answers — Questions and Answers
Question 1: 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)?
- The spouse receives the entire $250,000.
- The spouse receives the first $50,000, and the remaining $200,000 is split equally, with the spouse taking $100,000 and the two children sharing $100,000. (Correct answer)
- The spouse and the two children each receive one-third of the estate.
- The spouse receives $100,000, and the two children share the remaining $150,000.
Correct answer: The spouse receives the first $50,000, and the remaining $200,000 is split equally, with the spouse taking $100,000 and the two children sharing $100,000.
Under EPTL 4-1.1(a)(1), when a decedent is survived by a spouse and issue, the spouse takes the first $50,000 of the estate plus one-half of the remaining balance. The issue (children) then share the other half of the balance. In this case, the spouse receives $50,000 + (1/2 * $200,000) = $150,000. The two children share the remaining $100,000. Answer choice B accurately reflects this calculation ($50,000 + $100,000 = $150,000 for the spouse, and the children share $100,000).
Question 2: 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?
- The cash value of the watch at the time it was stolen.
- Any insurance proceeds paid to the estate for the loss of the watch.
- Nothing, because the gift is adeemed. (Correct answer)
- A substitute watch of equivalent value purchased by the executor.
Correct answer: Nothing, because the gift is adeemed.
This scenario describes ademption by extinction. Because the will devises a specific piece of property ('my Rolex watch'), and that property is no longer in the testator's estate at the time of death, the bequest fails or 'adeems'. The beneficiary is not entitled to the value of the item or any proceeds unless a specific statutory exception applies, such as insurance proceeds for loss that are paid *after* death. Since the watch was stolen and never recovered, the gift is extinguished.
Question 3: 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?
- The power of attorney becomes effective only upon the principal's incapacity.
- The agent's authority continues even if the principal later becomes incapacitated. (Correct answer)
- The power of attorney is irrevocable by the principal once signed.
- The agent must post a bond to be appointed.
Correct 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.
Question 4: Which of the following is NOT an essential element for the creation of a valid express trust in New York?
- A definite beneficiary or class of beneficiaries.
- A written instrument signed and notarized. (Correct answer)
- A settlor with the intent to create a trust.
- Identifiable trust property (the res).
Correct answer: A written instrument signed and notarized.
While a trust containing real property must be in writing to satisfy the Statute of Frauds, and a testamentary trust must be in a valid will, an inter vivos (lifetime) trust of solely personal property can be created orally in New York. Therefore, a written instrument is not an essential element for *all* express trusts. The other three options—settlor's intent, a definite beneficiary, and identifiable trust property—are always required.
Question 5: 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?
- No, because both witnesses must be present at the same time when the testator signs.
- Yes, because the witnesses attested to the testator's signature within the required 30-day period. (Correct answer)
- No, because the order of execution was improper; the testator must sign last.
- Yes, but only because the ceremony was supervised by an attorney.
Correct 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.
Question 6: 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?
- Filing formal objections to the will's probate on the grounds of undue influence.
- Initiating a separate lawsuit against the alleged influencer for tortious interference.
- Conducting pre-objection discovery by deposing the attesting witnesses and the attorney who drafted the will. (Correct answer)
- Encouraging another disinherited relative to file a will contest.
Correct 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.
NYLE - New York Law NY Trusts, Wills & Estates Questions and Answers
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)?