NYLE NY Trusts, Wills & Estates 2 — Questions and Answers
Question 1: Under New York EPTL 3-2.1, what are the requirements for a valid will?
- The testator must be at least 18, of sound mind, the will must be in writing, signed by the testator at the end, and attested by two witnesses (Correct answer)
- Any written document expressing the testator's wishes is valid
- The will must be notarized but does not require witnesses
- Oral wills are valid if made before three or more witnesses
Correct answer: The testator must be at least 18, of sound mind, the will must be in writing, signed by the testator at the end, and attested by two witnesses
EPTL 3-2.1 requires that a valid will be (1) in writing, (2) signed by the testator at the end, (3) the testator must declare to the attesting witnesses that it is their will, and (4) attested by at least two witnesses within 30 days of each other.
Under EPTL 3-2.1, a valid will requires: (1) the testator must be at least 18 years old and of sound mind and memory; (2) the will must be in writing; (3) signed by the testator (or another person at the testator's direction and in their presence) at the end of the will; (4) the testator must declare to the attesting witnesses that the instrument is their will (publication); (5) at least two attesting witnesses must sign within 30 days of each other. New York does not recognize holographic (unwitnessed handwritten) wills for New York domiciliaries, though EPTL 3-2.2 allows foreign wills valid where executed. Substantial compliance with these formalities is strictly required.
Question 2: Under New York EPTL 5-1.1-A, what is a surviving spouse's elective share right?
- The right to elect against the will and receive the greater of $50,000 or one-third of the net estate (Correct answer)
- The right to receive the entire estate regardless of the will
- The right to elect only if the will leaves nothing to the surviving spouse
- A right limited to the marital residence only
Correct answer: The right to elect against the will and receive the greater of $50,000 or one-third of the net estate
EPTL 5-1.1-A gives a surviving spouse the right to elect against the will and receive the greater of $50,000 or one-third of the net estate, protecting against disinheritance.
Under EPTL 5-1.1-A, a surviving spouse may elect to take their elective share — the greater of $50,000 or one-third of the net estate — regardless of what the will provides. The election must be made within six months after issuance of letters testamentary (or letters of administration) or within two years of the decedent's death, whichever is earlier. The 'net estate' includes testamentary substitutes (certain lifetime transfers designed to defeat the elective share) under EPTL 5-1.1-A(b), such as joint accounts, Totten trusts, revocable trusts, and transfers within one year of death. The elective share cannot be waived except by a valid prenuptial or postnuptial agreement.
Question 3: Under EPTL 4-1.1, how is property distributed when a New York resident dies intestate (without a will)?
- If survived by a spouse and children, the spouse receives $50,000 plus half the residue and the children share the remainder equally (Correct answer)
- The state takes the entire estate
- Everything goes to the surviving spouse
- All property is divided equally among blood relatives regardless of degree
Correct answer: If survived by a spouse and children, the spouse receives $50,000 plus half the residue and the children share the remainder equally
EPTL 4-1.1(a)(1) provides that if the decedent is survived by a spouse and issue (descendants), the spouse receives $50,000 plus one-half of the residue, and the issue take the balance per stirpes.
EPTL 4-1.1 sets out the intestate distribution scheme: (1) spouse and issue survive: spouse gets $50,000 + half the residue; issue take the balance per stirpes; (2) spouse but no issue: spouse takes the entire estate; (3) issue but no spouse: issue take the entire estate per stirpes; (4) no spouse or issue: parents take equally (or the survivor takes all); (5) no spouse, issue, or parents: siblings share equally (with issue of deceased siblings taking per stirpes); (6) if no relatives can be found through increasingly remote degrees, the estate escheats to New York State. Per stirpes distribution means each branch of the family takes an equal share.
Question 4: Under New York SCPA 1001, who has priority to serve as administrator of an intestate estate?
- The surviving spouse, then children, then grandchildren, then parents, then siblings (Correct answer)
- Any person nominated by the court without regard to relationship
- The decedent's attorney
- The oldest living relative regardless of relationship
Correct answer: The surviving spouse, then children, then grandchildren, then parents, then siblings
SCPA 1001 establishes a priority list for appointment as administrator: surviving spouse, children, grandchildren, father/mother, siblings, and other eligible persons.
Under SCPA 1001, the priority for letters of administration (intestate estates) is: (1) surviving spouse, (2) children, (3) grandchildren, (4) father or mother, (5) brothers or sisters, and (6) any other person the court deems eligible. If a person with higher priority renounces or is ineligible, the next in order may apply. The court may appoint a public administrator if no eligible person applies. The administrator must post a bond (unless waived by all distributees). For testate estates, SCPA 1401 provides that the person named as executor in the will has priority for letters testamentary.
Question 5: Under New York law, what is a Totten trust?
- A bank account in the depositor's name in trust for a named beneficiary, which passes to the beneficiary upon the depositor's death outside of probate (Correct answer)
- A trust created by a court order to manage a minor's inheritance
- An irrevocable trust that cannot be modified after creation
- A charitable trust for educational purposes
Correct answer: A bank account in the depositor's name in trust for a named beneficiary, which passes to the beneficiary upon the depositor's death outside of probate
A Totten trust (in trust for account) is a bank deposit made by one person as trustee for another, which is revocable during the depositor's lifetime and passes automatically to the beneficiary at death.
Named after Matter of Totten (1904), a Totten trust is created when a person deposits money in a bank account in their own name 'in trust for' (ITF) a named beneficiary. During the depositor's lifetime, the trust is fully revocable — the depositor retains complete control and may withdraw funds at any time. Upon the depositor's death, the remaining funds pass directly to the beneficiary outside of probate. Under EPTL 7-5.2, the trust may be revoked by withdrawing funds, making a different disposition in a will, or other methods. Totten trusts are considered testamentary substitutes for purposes of the surviving spouse's elective share under EPTL 5-1.1-A.
Question 6: Under EPTL 3-3.5, what happens to a bequest in a will when the beneficiary predeceases the testator?
- The gift generally lapses and falls into the residuary estate, unless the anti-lapse statute applies because the beneficiary was an issue or sibling of the testator (Correct answer)
- The gift automatically goes to the beneficiary's estate
- The gift is voided and the testator must rewrite the will
- The gift always passes to the beneficiary's children regardless of relationship to the testator
Correct answer: The gift generally lapses and falls into the residuary estate, unless the anti-lapse statute applies because the beneficiary was an issue or sibling of the testator
Under EPTL 3-3.3 (the anti-lapse statute), if the predeceased beneficiary was the testator's issue or sibling who left surviving issue, the gift passes to those surviving issue. Otherwise, the gift lapses into the residuary.
Under common law, when a beneficiary predeceases the testator, the gift 'lapses' and falls into the residuary estate (or passes by intestacy if the lapsed gift was itself the residuary). EPTL 3-3.3 provides an anti-lapse statute: if the predeceased beneficiary was the testator's issue or sibling, and the beneficiary left issue surviving the testator, the gift passes to those surviving issue by representation. The anti-lapse statute does not apply to beneficiaries who are not the testator's issue or siblings (e.g., friends, unrelated persons). The testator may expressly override the anti-lapse statute with language like 'to A if A survives me.'
NYLE NY Trusts, Wills & Estates 2
Under New York EPTL 3-2.1, what are the requirements for a valid will?