 Intestate Succession Under the EPTL (4-1.1)—Harry’s Probate Estate
o Painting (non-probate): A valid gift requires intent, delivery and acceptance
(acceptance is assumed). The painting (per Gruen) is assumed to be a gift and
hence not governable by a will b/c the second letter was an irrevocable transfer of
a future interest with a present interest to do so and no retained power to revoke.
 Gratuitous promise to make a gift in the future: A gratuitous promise to
make a gift in the future does not constitute an enforceable intent b/c the
donor is free to change his mind and if he or she dies before delivery it
goes into the probate estate.
 Gruen’s second letter represented a present intent to convey a future
interest to the son—the gift was a future interest and thus actual delivery
was not possible but the letter served as delivery—acceptance was
assumed.
o Life Insurance (non-probate): Although the life estate is revocable and
logically should go into the probate estate, it does not. Instead it is considered a
contract and treated as such.
 McCarthy v. Aetna Life Insurance:
 Kapcar had life insurance provided by his employer. His wife was
named as beneficiary. Later, when the couple divorced, the
settlement stated that the wife relinquished all interests in her
husband's real and personal property and his estate. Years later,
when Kapcar died, his will left everything, including insurance
benefits, to his father. His ex-wife sued for the life insurance
benefits, as she was still listed as beneficiary on the policy. There
were conflicting decisions by the lower courts. Case appealed to
the high court of New York.
 RULE: "As a general rule, under Pennsylvania, Delaware and
New York law [the states that had a relationship to this action], the
method prescribed by the insurance contract must be followed in
order to effect a change of beneficiary." General testamentary
statements are not enough to change the beneficiary. Here there is
no evidence that decedent made any attempt to change the
beneficiary designation during the years between his divorce and
death. "In the absence of such evidence, the court is restrained
from holding that it was the decedent's stated intention that his
father receive the proceeds from the insurance policy."
o Tenancy by the Entirety: The Family Residence (non-probate): Held by
tenancy by entirety with a right of survivorship. Tenancy cannot be destroyed
even at the hands of a creditor—goes straight to the other tenant.
o Bank Account held solely by Harry (probate—with a §5.3-1(a) catch): This is
property in his own name, with no strings attached.
 §5-3.1(a): Provides for an exemption for the benefit of the family for the
protection from decedent’s creditors.
 Hilda gets $15,000 of the $25,000, leaving $10,000 to George under the
will.
o Joint Checking Bank Account with daughter, Doris (non-probate): Right
before he died, Harry took out $8,000, leaving $10,000.
 §675 & §678 of Banking Law:
 §675 says that when there is a deposit of cash in the name of the
depositor and someone else to be paid to the survivor the funds are
held in joint tenancy
o (b) says there must be prima facia evidence of creation of a
JT
 §678 says that when there is deposit of cash in the name of the
depositor and someone else for the convenience of the depositor
the funds are NOT held in joint tenancy
 Brezinski v. Brezinski:
 P has burden to prove that account was not a JT but a convenience
account; there is a rebuttal presumption of a JT.
 Here there was abundant evidence of a convenience account
 If son would have just waited for mom to die, he would have
probably taken
 What about the withdrawal by Harry, did that destroy the JT with Doris?
(See Matter of Lang)
 Matter of Lang:
 A joint tenant withdrawing more than her moiety from a JT during
lifetime is obligated to return to the estate that amount that exceeds
her moiety
 If you don’t take more than half, you don’t have to pay back.
 Harry’s withdrawal was not more than half, so Doris gets $10,000. If
Doris had dies, Harry would get the $10,000 plus the $8000 he took out
before.
o Totten Trust Account (Harry “in trust for John”)(non-probate in this case
b/c of ambiguity): A bank account held in trust for another but the trustee has all
power to revoke and full control. A TT is a testamentary substitute
 §7-5.1: Totten Trust codification
 §7-5.2: Totten Trust revocation
 revocation by withdrawing funds or by a writing—must include
account numbers
 a person is allowed to govern a TT by will and if not mentioned in
will it will not pass under §4-1.1
 In this case, the will is not specific enough to constitute taking trust from
John (no account numbers)
o Securities owned by Harry in his own name (probate): This is all probate, and
b/c the $15,000 was already taken out of Harry’s bank account, the whole amount
passes to George. If the 15 had not passed, Hilda would have gotten 15 out of the
securities.
o Employee Pension Plan payable to Hilda (non-probate): This is like life
insurance, we pretend that it is irrevocable even though Harry could get his hands
on it and pay a tax penalty.
 What about the changing the designation or revocation by will?

o
o
o
o
Trigoboff: The company must comply with the terms of the pension but
sometimes can waive the compliance to the designation. McCarthy case
says it doesn’t matter what the insurance company does.
 Freedman: Follows Trigoboff; you can maybe change it if you are
specific enough in the will.
 The waiver stuff is out the window. You can maybe modify a
designation if you are specific enough
Trust Remainder established by Harry’s father (income to Harry’s mother,
Mom, for life, remainder to Harry)--(probate, but fact specific)
 Harry died before his mother, so what happens to the remainder?
 This remainder is vested so the remainder is probate
 What if this were a contingent remainder (Remainder to Harry if he
survives mom)?
 This would not be probate
 What if the contingent remainder were: Remainder to Harry if during
mom’s lifetime Bills win Super Bowl?
 No requirement that Harry survive his mother, so we wait and see
if Bills win. If so, remainder is part of Harry’s probate
Clothing, furniture and household appliances (non-probate--§5.3-1
exemption)
 Clothing: This is a §5-3.1 issue as a part of a family exemption, most of
the time this will be non-probate
 Jewelry: Not covered by §5-3.1
Automobile owned by Harry in his own name (§5-3.1(d) issue)
 Wife can either keep the car or keep $15,000 and give extra $5,000 to the
probate estate
Who pays Harry’s funeral expenses and taxes?
 It will be paid out of the probate estate.
o Who would take what on the above facts? (4-1.1a)
 §4-1.1(a)—hardest part of course
 You can do what you want in a will as long as not against public
policy… if it is against PP then this is the way it will go:
 Is a default statute, can be overridden as long as not against PP
 Hilda would get $125,000 ($50,000 plus ½ the residue)
 If Hilda wants half due to “economic partnership” tell her its only
for divorce
 At death, the only thing that is equitable is a title b/c it’s the only
thing left—protects against disinheritance of spouse
 Remaining $75,000 will go to children
o Arguments for and against Harry’s will:
 Hilda: Point to the Pace case (public policy waste case—can’t order a
house torn down in a will against public policy)
 Having jewels thrown away is a waste and against public policy

o
o
o
o
o
o
You can also use Shapira to argue that you don’t have to have a
statute violation in order to argue public policy. Public policy is a
common-law notion—Shapira was about partial restrain on the
provisions of a trust (must marry a Jew girl)
 George: You can also point to public policy. Look at the Beck case.
What is the point of drafting a will if testator’s intent will not be met?
 “Bad” George: Will argue that it is a waste to throw away
diamonds, so let him keep the money and not throw it away.
o Hilda will counter that George can’t keep money, that is
not what Harry wanted—use Pace to focus on testator’s
intent.
 “Good” George: Will distinguish Beck from Pace. The city
agreed to tear down the home years ago, so Mattina decided in
favor of Beck.
o Good George will also argue “Cy Pres Doctrine”
 If you can’t do exactly what testator provided for,
you can accomplish his/her original intent by doing
something more general (maybe use diamond
money to buy billboards to argue Harry’s causes).
o Hilda will counter that CY PRES can only be used if the
gift is given to a charitable organization. AND she will
argue that that is not what Harry wanted
What if only Hilda and Harry’s mom survived?
 §4-1.1(a)(2) Hilda gets everything. If there is a spouse and no issue,
she gets it all.
What is everyone except Hilda survived?
 §4-1.1(a)(3) The whole goes to issue by representation, the three kids
take.
 Also, all the 5-3.1 stuff goes to the kids as well
What if everyone survives except Harry’s daughter Doris?
 §4-1.1(a)(1) Hilda still gets her 50g plus ½.
 The rest is still divided between Harry’s issue by representation. So, since
Doris is not alive, her two children take what she would have taken. Eve
and Ed split Doris’ share. John and Tina get the other 2/3 as 1/3 a piece.
What if only sister Lucy and Harry’s mom survive?
 §4.1.1(a)(4) If one or both parents survive, and there is no spouse and
no issue, then parents take it all. Mom takes it all.
What if only Uncle Joe and nephew Lenny survive?
 Both are 3 on table of consanguinity (p.79)—both take equally.
 §4-1.1(a)(5) Preference given to closest collateral and then any of his
issue. Degrees don’t matter.
What if only Dave (Joe’s son) and Kevin (Doris’ wife) survive?
 Kevin is not related by blood—he is out.
 How does Dave take?

§4-1.1(a)(6) If there are one or more grandparents, or issue of
grandparents, and no one else, then the estate is split in half. Half
goes to the maternal grandparent and half paternal.
 Dave is a grandchild of a grandparent, he takes (Dave is a fist
cousin of Harry’s parents).
 Dave will have to prove that all people who would take before
him are not alive.
o What if Dave’s son, Dan, a great-grandchild of grandparents is only
survivor?
 §4-1.1(a)(7) If Dan is only surviving he can take. Any farther down the
line, and the estate escheats.
o What if only Dave and Aunt Sarah survived?
 §4-1.1(a)(6) Applies to grandparents and the issue of grandparents by
representation. Sarah is a 3 and Dave is a 4. But, Dave takes his father
Joe’s share by representation. Dave takes half and Sarah takes half. This
would be true even if on the same side of the family.
 Suppose that in the example above, Harry’s will contained a
provision: Under no circumstances is any of my estate to go to any of
my relatives.
 §1-2.19 You can direct how a property should not be disposed of
and also defines a WILL. With a will, you can direct not only how
property shall be disposed of, but also how property shall NOT be
disposed of.
o Hilda will argue §4-1.1 and say if he does not dispose of
the property affirmatively, she will take, but she loses.
 In NY if you want to dispose of property in a certain way, you
must have a will. You must state affirmatively what you want
or else it will pass by §4-1.1.
 So…Harry’s will does state affirmatively what he wants, so Hilda
loses. Everywhere else but NY, Hilda wins.
o Lineals
o Collaterals
o #6 and revision: Who is entitled to what share of D’s estate?
 Dan gets nothing—no inheritance rights
 Joan—gets nothing, no marriage, no order of filiation, no
acknowledgment, no probate paternity establishment, no blood genetic test
 Sally—she gets it all as the adopted first cousin (NY Dom Law 117(1)(e)
might apply but Jeremiah is probably too far out)
o Same as (1) but Joan is the non-marital daughter of D’s half-Aunt, Jerry?
 Dan still gets nothing in intestacy
 Joan—is now in b/c through mother
 Sally—is still in as first cousin
 Sally and Joan share as first cousins
o Same as (2) except Jeremiah is D’s half-brother instead of half uncle;
suppose in this case that Sally had predeceased D and was survived by her
son Sam? [see Seaman (attached)]?
 Dan—still gets nothing
 Joan—loses out to Sally
 Sally ( and Sam)—wins under 117(1)(e)
 When 117(1)(e) conflicts with 4-1.1 the Seaman case controls if
both 117 prongs are met:
o Close relative must have adopted person
o Decedent must be a close relative
o Refer to diagram: D has adopted her grandson a1. What is a1’s share of D’s
estate?
(D)
/
------------------/ ¦ /
/
(A)
a1 B
C
/ \
a1
a2
 a1 may has a good case for a claim as adopted child and grandchild,
but…117(1)(e) prohibits double dipping, so they each get ¼
o Suppose instead that C died and leaves money and that D is dead too:
 a1 will not be cut off under 117(1)(e) b/c fulfills both prongs, but since C
did not adopt a1, a1 will inherit as A’s natural child, not D’s adopted
child—B gets ½ and a1, a2 split the other half
o Suppose that C, D are dead (C has the money to pass) and that A is still
alive?
 There is no chance for double-dipping on a1’s part, so he will take in the
his adoptive role and will split with A and B
o Suppose that Sally in first problem had been adopted by “Gina”—D’s
domestic partner?
 Sally would lose b/c of Matter of Jacob—D is dead and Gina is a stranger,
but this is bs and should be argued out…

Matter of Jacob: You get this question on the exam, just tell me what
you think—“there is a possibility this could go to the state…” this is
about standing to adopt. Two legal parents are better than one. An
unmarried partner wanted to adopt. If there is a single person adopting, or
a person unrelated to the child who is married to the natural parent, and
the person wants to adopt, then what are the inheritance rights of the
child?
o Suppose in (1) that D had no estate to speak of, but was killed through the
negligence of X. Who is entitled to the proceeds of the wrongful death
action? [See EPTL §§ 5-4.1, 5-4.4(a), and § 5-4.5.; see also Gonzalez
(attached)].
 Dan is out. Under 5-4.1, the class of people are only those who can take
under 4-1.

Joan  cannot share either. She is not a distributee. She might suffer
pecuniary loss, but on the facts, it will not matter.
 Sally Is Sally a distributee under 4-1.1? YES! Sally is a distributee
because (even though she is cut off as a natural daughter), she is NOT cut
off as an adoptive daughter! When you are adopted, you are always
adopted OUT and adopted IN. She took as an adopted first cousin in the
first scenario, and under 4-1.1(a)(6), she took. is entitled to the proceeds of
the wrongful death per Gonzalez (78yr old grandma killed, grandchildren
awarded damages)
 Sally must show pecuniary damages—how important D was to her (see
facts in Gonzalez)
o Suppose in (1) that D died with a will which left “$10,000 to each of my issue
and the rest of my estate to my heirs.” [See EPTL §§ 1- 2.10, 2-1.1, 2-1.3;
N.Y. Dom. Rel. L. § 117, subd. 2; Best (attached).]
 Short answer: none get anything as issue…but might get as “heirs”
 Advancement and Simultaneous Death
o #8 p.6 of Supplement 1
o Under the statute, consider the fact that S got the value of Blackacre at $40,000 as
advancement (date of death value). But treat this as though they never gave
Blackacre to the son. The pot is then worth $105,000.
o They really have 65, pretend they have 40, and this equals a total of 105. Divide
by 2 (for the son and daughter), and you have 52.5 each. Subtract the 40 that the
son already has b/c of the advancement. The son will get 12.5 and the daughter
will get 52.5.
o Under § 2-1.6(c), we must assume that all of the estate shared by H & W is
split in half down the middle
o See outline for all of the §2-1.5 and §2-1.6 specifics
 Disclaimer—Renunciation
o #9, p.7 of supplement 1
o Have to wait until the person dies to renounce because you have not yet taken.
o Bob can renounce to avoid a creditor. The money would normally pass to his 2
kids and 1 nephew 1/3 each, but it appears that in this situation his kids split ½
and Jim gets the other ½
 Murder
o NYS: majority position. Riggs case  we don’t make the rules, but killers
should not profit!
o Murderer cannot gain from murder
o #10 of supplement
 Don’t worry about H’s estate—here Sarah takes W’s estate
 Joint Bank Account
 §4-1.6: Murderer only gets what he contributed, not entitled to any
of decedent’s money—no gain
 Covert says it is split up
 T by E—Real Property
 Murderer only entitled to a “one-half the commuted value of a life
estate in property”
o See notes for life estates and other random hypos
 Protection of the Family
o Right of Election—Estate worth 180,000—Part Two Handout #1
Intestacy (4-1.1)
Under Will
RIGHT OF ELECTION
Is there anything that
§ 1-2.19 disposes of
HYPO
§ 5-1.1-A
does not pass under the property by will – H can
(plus § 5-3.1)
will?
leave to whomever
1
All property is
W has no rights – H W gets $50,000 OR 1/3 of
disposed of by will
excluded W. All is the estate – whichever is
to B, so no rights to disposed of to B.
greater. So she gets
W under 4-1.1
$60,000 in this case. Think
about 50-150.
2
W has no rights –
W has no rights –
W gets $60,000 – same
everything passed
the inferred positive situation as above under
by will.
disposition of the
5.1.1A(4)will is that the
daughter takes.
3
W has no rights –
W gets a life estate
DOES NOT PASS
everything passes
in $180,000.
ABSOLUTELY.
by will.
5.1.1.A.(b) 4
W has no rights
W gets $50,000
W gets 10,000
Painting
o Part Two Handout #3
5-3.1
4-1.1
Non(not in
Probate probate
5-1.1
estate)
600
Life
Insurance
Tenancy by
the Entirety
Bank
15
Account in
own name
Joint Bank
Account
Totten
Trust (51.1-
5-1.1
Test.
Sub.
Test.
Sub. for
Spouse
5-1.1A(b)(1)
600
(F)(i)
100
0
(F)(ii)-?
150
75
10
10
(D); (b)(2)
90
90
(C); (F)(ii)
75
(E)(i);(b)(2)
10
A(b)(1)C
Securities
Pension
Death
Benefit
Trust
Remainder
Clothing
10
(etc)
Automobile 15
TOTAL
40
150
90
45
45
(G)
35
5
200
1040
(debts, taxes and
administration
expenses
omitted)
A
B
C
D
E
Probate Test. Total Elective Intestacy
Estate
Sub. Estate Share
For W
Under
Will
200
820
1020
Under
200
Intestacy
820
1020




340
(greater
of 50k
or 1/3)
340
o Pretermitted Children
Will Execution
o Signature Requirement
o Execution Ceremony
o Interested Witnesses
Trust Formalities v. Will Formalities
Revocation
o By subsequent instrument
o By Physical Acts
o By Operation of Law
o Partial Revocation
Revalidation
o Of Revoked wills
o Republication by Codicil
o “Revival” of “Revoked” Wills
o Dependent Relative Revocation
N/A (will
disposes of
property)
F
Absolute
Will For
W
0 (all
goes to
GW)
(50k + ½
0 (no
remainder) will)
50+75=125
G
Absolute
TS for
W
120 (75
+ 45)
H
I
Total
Total
Reduction Reduction
120
½ house, 245
½
pension=
120
340120=220
95