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3 TransiTional and non-TransiTional MClE CrEdiTs: This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 3 Transitional and Non-Transitional credit hours: 2 Skills; 1 PP.
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Will Drafting 101Prepared in connection with a Continuing legal Education course presented
at new York County lawyers’ association, 14 Vesey street, new York, nY scheduled for June 8, 2011.
P r o g r A m C o - C h A I r s :
Paul J. o’neill Jr., Principal, Law Office of Paul J. O’Neill, Jr.
F A C u L t Y :
leslie Wilsher, Esq., Greenfield, Stein & Senior, LLPJohn J. reddy, Jr., Bekerman & Reddy, LLP
Information Regarding CLE Credits and Certification Will Drafting 101
June 8, 2011, 6:00PM to 9:00PM
The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.
i. You must sign-in and note the time of arrival to receive your
course materials and receive MCLE credit. The time will be verified by the Program Assistant.
ii. You will receive your MCLE certificate as you exit the room at
the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.
iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.
iv. Please note: We can only certify MCLE credit for the actual time
you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.
v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week.
Thank you for choosing NYCLA as your CLE provider!
New York County Lawyers’ Association
Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646
Will Drafting 101 June 8, 2011
6:00 PM – 9:00 PM
AGENDA
Program Faculty: Paul J. O’Neill, Jr. Esq., Principal Law Office of Paul J. O’Neill Jr.
Leslie Wilsher, Esq., Greenfield, Stein & Senior, LLP John J. Reddy, Jr. Esq., Bekerman & Reddy, LLP 5:30 PM – 6:00 PM Registration 6:00 PM – 6:10 PM Introductions and Announcements 6:10 PM – 9:00PM Discussion
An Introduction Will Drafting
Presentation for The New York County Lawyers
To Be Presented By:
John J. Reddy, Jr. Bekerman & Reddy , LLP
New York, New York
Special thanks to Marc S. Bekerman, Esq. for his assistance in providing these materials.
Pre-Death (Estate Planning)
I. Analyzing and Drafting for Non-Dispositive Issues
a. Health care issues – Use a health care proxy
i. Allows named agent to make decisions related to health care for
the principal
ii. Take into account HIPPA rules regarding confidentiality of records
1. Specifically refer to agent’s ability to review records in
accordance with HIPPA
2. Consider use of separate HIPPA release
iii. Execute several copies and circulate
1. Client
2. Agents named in instrument
3. Primary care provider
4. Specialists and other health care professionals
b. Quality of life issues – Use a living will
i. Allows client to make known their wishes as to whether they wish
to be kept alive by extraordinary means
1. “Pull the plug”
2. DNR Orders
3. Artificial or forced feeding
ii. Execute several copies and circulate
1. Client
2. Family
3. Doctors and health care professionals
4. Clergy
c. Property management and disability issues – Use a power of attorney
i. Allows an agent to manage the property affairs of the principal
ii. Durable – Survives incapacity of the principal
iii. Springing – Effective at a future time
1. Useful when a client does not want the agent to have
authority immediately
2. Generally is effective only upon the incapacity of principal
3. Question as to when this occurs
a. Principal may not be able to certify due to
incapacity
b. Doctors may be unwilling to certify
c. Principal may be unhappy that agent has sought
certification and now seeks to act
4. Potential ethical issue – Client says they have capacity;
agent says that client is incapacitated
iv. All powers of attorney lapse when the principal dies
II. Non-Tax Issues in Estate Planning
a. Is client competent to make a Will?
i. Capacity to execute Will is lowest capacity in law (capacity to
enter into a contract is higher)
ii. Basic test is knowledge of:
1. “Nature and extent of assets” – Does client have a general
idea as to what they own and approximate worth?
2. “Natural object of bounty”
b. Obtain a family tree
i. List of close relatives (Natural object of testator’s bounty)
ii. Get addresses of relatives since these people may be necessary
parties to probate proceeding after death
iii. Note any special information
1. Distributees whose whereabouts are unknown
2. Beneficiaries who are “under a disability” or are “infants”
c. Obtain a list of assets
i. Value of assets
ii. Types of assets
1. Liquid
a. Cash
b. Bank accounts (maybe not long term time deposits
(e.g., 5 year CD))
c. Marketable securities (e.g., stocks, bonds, mutual
funds)
2. Illiquid
a. Tangible personal property
i. Cars
ii. Boats
iii. Jewelry
iv. Artwork
v. Household furnishings
vi. Clothing and personal effects
b. Real estate
i. Residences
ii. Vacant land
iii. Land with improvements
c. Business interests
d. Mortgages and promissory notes
e. Royalties and copyrights
f. Rights
g. Reversionary or remainder interests
h. Interests in trusts
i. Powers of appointment
j. Annuities
3. Remember to review:
a. Life insurance
i. Often not an asset during lifetime, but needs
to be considered in creating estate plan
ii. Life insurance on client’s life owned by
another (individual or trust)
iii. Life insurance owned by client on someone
else’s life
b. Retirement benefits
i. May have limited access now, but will be an
asset of an estate and could require special
planning
ii. 401(k) accounts
iii. IRA accounts
iv. Pensions
iii. Manner held
1. Client’s name alone
2. Joint (with or without right of survivorship)
3. Designated beneficiary
4. In an entity (e.g., a revocable trust)
5. Consider obligations of client that limit ability to dispose of
property
a. Agreements
i. Marital agreements
ii. Business agreements (e.g., buy-sell
agreements with partners)
b. Family rights
i. Right of election -
ii. Exempt property -
d. Ask client how and when they wish to dispose of property
i. Who are the intended beneficiaries? These may not be the “natural
object of the testator’s bounty”.
ii. Should the beneficiaries receive their interests outright or in trust?
iii. Providing for the surviving spouse
1. Right of election
2. Agreements between spouses
iv. Providing for minors
1. Nomination of a guardian
2. Disposition of property to minor
a. Outright
b. Trust
i. Testamentary trust
ii. UGMA/UTMA account
v. Rights of family under state law – Exempt property which is not
subject to creditor’s claims
vi. Jointly held property
1. Surviving tenant obtains full title to jointly held assets upon
death of co-tenant (“passes by operation of law”)
2. Not part of estate disposed of under Will
3. Determine whether bank accounts are joint with right of
survivorship or convenience account
a. Review passbook and signature card to confirm
intent is properly reflected in the bank’s paperwork
b. If not labeled a convenience account, could lead to
later litigation to determine whether the client
intended the surviving joint tenant to have the
remaining balance of the account
vii. Property with designated beneficiary
1. Will pass to beneficiary if the beneficiary survives
2. Examples include retirement plans and life insurance
viii. Lifetime gifts (non-tax issues)
1. Can the client afford to make lifetime gifts?
2. Does the client wish to make lifetime gifts?
e. Implementation of estate plan
i. Drafting issues
1. Cautions and considerations
a. Be careful when using boilerplate language from
either a drafting program or a formbook
b. If doing revocable trust, be sure to expressly
provide for the Grantor’s retained powers
2. General format of dispositive instrument
a. Direction of payment of debts, expenses, including
apportionment of taxes
i. See EPTL 2-1.8 for default if the Will is
silent
ii. If overriding default statute, be careful not to
establish an infinite loop, especially on tax
apportionment
b. Devises of real property
i. Be careful if devising to more than one
beneficiary since multiple tenants in
common can cause a problem
ii. Consider whether sale should be directed
1. May save need for a partition
proceeding later
2. May allow estate to use expenses of
sale as a deduction
3. May allow estate to use carrying
charges as a deduction
iii. If there is a mortgage on the property
1. Should mortgage be satisfied before
property is transferred?
2. Should property be transferred
subject to mortgage?
3. If transferred subject to mortgage:
a. Should there be an additional
bequest to beneficiary?
b. Should there be offsetting
bequests to other
beneficiaries?
c. Specific bequests of tangible personal property
i. Consider whether costs of distribution
(moving expenses, storage, insurance)
should be borne by the beneficiary or the
estate.
ii. Division among a class of beneficiaries
1. What if beneficiaries cannot agree?
2. If using executor as ultimate decision
maker, what if executor is member
of class?
iii. Future valuation issues
1. Example – Two items of personal
property have similar values
currently, but dramatically different
values at time of death. Should a
general legacy be given to
beneficiary with less valuable asset
to equalize the two “equal
beneficiaries”?
d. General legacies
e. Residuary clause
f. Nomination of fiduciaries
i. Executors
ii. Trustees if trusts are created under Will
iii. Guardian of minor children if appropriate
g. Powers granted to fiduciaries
i. State law provides for default powers
ii. Additional powers
iii. Consider enumerating desired powers in
case of a change of law, or a change in
residence (i.e., “In addition to all powers
granted by the law of the District of
Columbia, the following powers are hereby
granted:”)
iv. Examples of powers to consider:
1. Hire employees
a. Attorneys
b. Accountants
c. Agents
2. Distributions
a. Should distributions in kind
be allowed?
b. Should non pro-rata
distributions be allowed?
3. Power to borrow against assets (if
corporate fiduciary, consider whether
they should be allowed to borrow
from self)
h. Miscellaneous
i. Possibility of lapsing bequest (treatment of a
bequest to a beneficiary who predeceases the
decedent) - See EPTL 303.3
ii. Survivorship clauses, including
simultaneous death clause and equalization
clause
iii. In Terrorem clauses
iv. Exercises of powers of appointment
v. Use of formula and fractional bequests
i. Attestation clause
III. Wills - Execution issues
a. Should be supervised by an attorney
i. A paralegal should never supervise the execution of a will.
ii. Sample script: Have you read this instrument? Do you understand
the contents of this instrument? Do you declare this instrument to
be your last will and testament? Would you like these persons to
be the witnesses to your will?
b. Must usually have at least two disinterested witnesses (See EPTL 3-3.1)
i. Have witnesses meet and speak with testator for a period of time so
they can later testify, either by affidavit or deposition, that they
believe the testator was competent to make a Will
ii. Witnesses may wish to make diary entries or memos to file to
reflect that they met the testator, that they believed the testator to
be competent to make a Will, that they witnessed the execution of
the Will, and that the execution was in accordance with state law
c. Execute only one original which should then be kept in a safe place
i. Given to client
ii. Retained by attorney
d. Consider use of self-proving affidavits if allowable under local law (See
SCPA 1406)
i. No need to produce witness unless a party to the probate
proceeding requires production
ii. In a contested probate, the affidavits will not relieve the proponent
from their duty to produce the attesting witnesses for examination
by the objectant
I, JOHN Q. TESTATOR, a resident of the City, County and
State of New York, do hereby make, publish and declare this to be
my Last Will and Testament, hereby revoking all previous wills and
codicils thereto at any time made by me.
FIRST: I direct my Executor to pay my debts (other than
those barred by the statute of limitations or discharged in bankruptcy,
or any encumbrance on property specifically disposed of by this Will
or passing outside this Will by operation of law or on any policy
of insurance on my life payable to a named beneficiary) and the
expenses of my last illness and funeral as soon after my death as
may be reasonably practicable, and I authorize my Executor to
distribute and pay all specific and general legacies hereunder
without being bound to await the expiration of any creditors’ period.
SECOND: I make an anatomical gift of such of my organs
as may be utilized by a medical institution for transplant or study.
I direct that my remains not so donated be cremated and that my ashes
be sprinkled over the Atlantic Ocean.
THIRD: A. I give and bequeath my gold Rolex wrist
watch to my nephew, ARTHUR TESTATOR, if he survives me.
B. I give and bequeath the balance of the tangible
personal property which I may own at the date of my death to my wife,
MARY TESTATOR. If my said wife predeceases me, I give and bequeath
all of such tangible personal property to such of my children as
survive me, in as nearly equal shares according to value as
practicable.
C. The legatee or legatees under this Article shall be
entitled to any claims in my favor existing at my death with respect
to the property otherwise bequeathed to said legatee or legatees,
and also, so far as my Executors may deem practicable, any insurance
coverage respecting my tangible personal property. I direct that
all expenses of distribution of my tangible personal property,
including storage, insurance, packing and delivery, shall be a proper
administration expense of my estate.
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D. If my children become entitled to property in shares
under this Article and fail to agree upon the division of said property,
or if any of them is a minor, such property shall be divided in such
manner as my Executor may determine so as to achieve approximate
equality. If any property passes under this Article to a minor child
of mine, such property may be delivered to said child or to any
suitable person for said child’s benefit, without bond, and the
receipt of the person to whom delivery is made shall be a full
discharge from accountability to said child.
FOURTH: I give and bequeath:
A. to my brother, ROBERT TESTATOR, the sum of TEN
THOUSAND ($10,000) DOLLARS;
B. to my friend, RICHARD ROE, the sum of TEN THOUSAND
($10,000) DOLLARS, if he survives me, and if not, I give and bequeath
such sum to his daughter, JANE ROE; and
C. to my sister, JANE TESTATOR, the sum of TEN THOUSAND
($10,000) DOLLARS to be paid from my account No. 346-687521 at Omnium
Savings Bank.
FIFTH: A. I give and bequeath all of my right, title
and interest in and to my cooperative apartment, known as Apartment
PH1 and located at 555 Fifth Avenue, New York, New York, including
without limitation the proprietary lease thereto and all of my shares
of stock in the corporation owning the building in which said
cooperative apartment is located, and any claims in my favor existing
at my death with respect to said cooperative apartment, and also,
so far as my Executor may deem practicable, any insurance coverage
respecting the same, to my daughter, SALLY TESTATOR, if she survives
me.
B. I give and bequeath all of my right, title and interest
in and to my cooperative apartment, known as Apartment 1R and located
at 333 Third Avenue, New York, New York, including without limitation
the proprietary lease thereto and all of my shares of stock in the
corporation owning the building in which said cooperative apartment
is located, and any claims in my favor existing at my death with
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respect to said cooperative apartment, and also, so far as my Executor
may deem practicable, any insurance coverage respecting the same,
to my son, SAMUEL TESTATOR, if he survives me.
SIXTH: A. I give and devise all of my right, title
and interest in and to any real property which I may own at the time
of my death, together with all buildings, improvements, appurtenances,
fixtures and any claims in my favor existing at my death with respect
to said real property, to my wife, MARY TESTATOR.
B. I direct that all expenses of occupancy and operation
of said real property, including insurance, maintenance and ordinary
repairs, as well as living expenses, incurred for the period of three
(3) months following my death, shall be a proper administration
expense of my estate.
OPTION 1 FOR SEVENTH AND EIGHTH:
SEVENTH: If my wife, MARY TESTATOR, survives me, I give
and bequeath to my Trustees hereinafter named a sum equal to the
largest amount, if any, which can pass free of federal estate tax
in my estate by reason of the unified credit against federal estate
tax allowable to my estate, reduced by the value of (1) all
dispositions under previous articles of this, my Will, other than
property qualifying for the marital or charitable deduction, (2)
all adjusted taxable gifts, (3) all property passing outside of this,
my Will, and includible in my gross estate for federal estate tax
purposes other than property qualifying for the marital or charitable
deduction and (4) principal charges for which no deduction shall
have been taken and allowed in computing the Federal estate tax
payable by reason of my death. For the purpose of establishing the
sum disposed of by this Article the values finally fixed in the federal
estate tax proceeding relating to my estate shall be used. If my
estate shall include assets which would not qualify for the marital
deduction, I direct that to the extent possible such assets shall
be allocated to the property passing under this Article. I intend
this sum to be a pecuniary bequest and if my Executor shall distribute
property in kind, the assets selected shall be valued at their fair
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market values on the dates of distribution. This sum shall be held
in separate trust for the benefit of my said wife, for the following
uses and purposes:
A. My Trustees shall pay so much or all of the net income
of the trust to such member or members of a class of persons consisting
of my said wife and my issue who shall be living from time to time
during the term of the trust, to the exclusion of other members,
and in such proportions and amounts, without equality of treatment,
as my Trustee other than my said wife, in their sole discretion deem
necessary for the health, education, maintenance or support of the
respective members of said class. Any net income not so distributed
shall be accumulated and added to the principal of the trust at least
annually.
B. In addition to the payments of income provided for
in Paragraph A of this Article SEVENTH, my Trustees may at any time
or times pay to my said wife so much or all of the principal of the
trust as my Trustee other than my said wife, in their sole discretion
deem necessary for her health, maintenance or support.
C. Upon the death of my said wife, the trust shall
terminate and the principal, together with any unpaid and accrued
income, shall be paid over to my issue then living, subject to the
provisions of Article NINTH of this Will.
EIGHTH: A. I give, devise and bequeath all the rest,
residue and remainder of my estate, both real and personal, of
whatsoever nature and wheresoever situate, excluding any property
over which I may have a power of disposition at the time of my death,
(hereinafter sometimes referred to as “my residuary estate”) to my
wife, MARY TESTATOR, outright. If my said wife predeceases me, I
give, devise and bequeath my residuary estate to my issue who survive
me, subject to the provisions of Article NINTH of this Will.
OPTION 2 FOR SEVENTH AND EIGHTH:
SEVENTH: I give, devise and bequeath all the rest, residue
and remainder of my estate, both real and personal, of whatsoever
nature and wheresoever situate, excluding any property over which
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I may have a power of disposition at the time of my death, (hereinafter
sometimes referred to as “my residuary estate”) to my wife, MARY
TESTATOR, outright. If my said wife predeceases me, I give, devise
and bequeath my residuary estate to my issue who survive me, subject
to the provisions of Article NINTH of this Will; provided, however,
that if my said wife disclaims any part or all of the devise and
bequest to her hereunder, I direct that the disclaimed portion of
my residuary estate shall not be paid over to my issue who survive
me, but instead shall be disposed of in accordance with the provisions
of Article EIGHTH of this Will.
EIGHTH: A. If any part or all of my estate is directed
to be disposed of in accordance with the provisions of this Article
EIGHTH, the same shall be paid over to my Trustees, to hold in separate
trust for the benefit of my wife, MARY TESTATOR, and to pay the net
income therefrom to my said wife, together with so much or all of
the principal of the trust as my Trustee other than my said wife,
in their sole discretion shall determine.
B. In addition to any amounts of principal paid to my
said wife pursuant to Paragraph A of this Article EIGHTH, during
her life my said wife shall be entitled to withdraw from the principal
of the trust, in any calendar year, an amount or amounts not to exceed
in the aggregate the greater of the amounts set forth in Sections
2041(b)(2) and 2514(e) of the Internal Revenue Code of 1986, as
amended from time to time, (the “Code”) whether or not either of
such Sections shall be in effect at my death; provided, however,
that to the extent my said wife shall not have withdrawn the full
amount to which she is entitled under this Paragraph B in the year
of her death, this right of withdrawal shall lapse upon her death.
C. Upon the death of my said wife, the trust shall
terminate, and my Trustees shall pay over the then principal thereof
to my issue then living, subject to the provisions of Article NINTH
of this Will.
NINTH: A. If upon my death or the termination of any
trust hereunder any property would otherwise, under the provisions
-5-
of Articles SEVENTH or EIGHTH of this Will or this Article NINTH,
vest free of trust in a descendant of mine who has not then attained
the age of thirty five (35) years, the same shall not so vest, but
instead shall be retained by or paid over to my Trustee, in separate
trust, and my Trustee shall pay the net income to such descendant;
provided, however, that during such period of time as such descendant
shall be under the age of twenty one (21) years, my Trustee shall
pay only so much of the net income to such descendant as my Trustee
may deem necessary for such descendant’s health, education, support
or maintenance and shall accumulate and add to principal any income
not so paid. In addition, my Trustee may pay to such descendant so
much of the principal of the trust as my Trustee may deem necessary
for such descendant’s health, education, maintenance or support.
When such descendant attains the age of twenty five (25) years, my
Trustee shall pay one-third (1/3) of the then principal of the trust
to such descendant; when such descendant attains the age of thirty
(30) years my Trustee shall pay one-half (1/2) of the then principal
of the trust to such descendant; and when such descendant attains
the age of thirty five (35) years, my Trustee shall pay the remaining
principal of the trust to such descendant.
B. In case such descendant dies while any principal of
her or his share remains in trust, the principal shall be divided
into separate shares, per stirpes, for such descendant’s issue living
at such descendant’s death, or in default of such issue, for the
issue then living of such descendant’s nearest ancestor who either
was a descendant of mine or was myself, and who has issue then living.
The share for any such issue who has attained the age of thirty five
(35) years shall be paid to such issue outright. The share for any
such issue who has not then attained the age of thirty five (35)
years shall be added to any then existing trust hereunder for such
issue or, if no such trust exists, held in trust for the benefit
of such issue, as the case may be, under and in accordance with the
terms of this Article NINTH.
-6-
C. If, when any property is directed to be set aside
for or added to a trust for a person, such person has attained an
age or ages at which he or she would have been entitled to a portion
of the same, then such portion shall be paid over to such person.
D. No trust hereunder shall endure longer than twenty
one (21) years after the death of the last survivor of my said wife
and those of my issue who are in being on the date of my death, and
at the expiration of that period any property held in trust hereunder
shall be paid outright to the person entitled to the income therefrom.
TENTH: B. If at the time of my death or upon the
termination of any trust hereunder any part or all of my residuary
estate or of the principal of such trust shall remain undisposed
of for the reason that none of my said wife nor any of my issue are
then living, I give devise and bequeath such property as follows:
1. the first One Hundred Thousand Dollars thereof
to ALMA MATER COLLEGE FUND, to be used for its general purposes;
2. Fifty percent (50%) of the balance thereof to
my brother, ROBERT TESTATOR, or if he is not then living to his issue
then living; and
3. The remaining fifty percent (50%) of the balance
thereof to GOOD INTENTIONS CHARITY, INC., to be used for its general
purposes.
C. I have not made greater provision hereunder for my
sister, JANE TESTATOR, not out of lack of love and affection, but
because I believe she is otherwise well provided for.
D. I have intentionally not made provision hereunder
for my sister, DAISY TESTATOR DONOTHING.
ELEVENTH: A. Unless the contrary is expressly stated,
any devise or bequest to a person or member of a class of persons
who shall predecease me shall lapse, each future interest shall be
contingent upon survivorship at the time such interest vests in
possession, all distributions or divisions to or among “descendants”
or “issue” shall be made per stirpes and not per capita or by
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representation, and the sole member of a class or group shall take
the whole gift if alone surviving.
B. Any person occupying any status by adoption, and issue
of the blood or adopted issue of such person, shall take under this
Will to the same extent as if occupying such status by blood.
C. In case any beneficiary of this Will or any codicil
hereto and I, or any income beneficiary and remainderman of any trust
hereunder, die in such circumstances that the order of our or their
deaths cannot be established by proof, it shall be conclusively deemed
that such beneficiary predeceased me or that such remainderman
predeceased such income beneficiary, as the case may be [alternative
if appropriate to equalize estates for tax purposes: , except for
my wife, MARY TESTATOR, who in such case shall be deemed to survive
me for the purposes of the bequest under this Paragraph C of Article
ELEVENTH only, and I give and bequeath to my said wife that amount,
if any, which if allowed as a deduction in determining the Federal
estate tax payable by reason of my death would be just sufficient
to reduce all Federal estate tax payable by reason of both my death
and the death of my said wife to the lowest possible amount, after
taking into account all other deductions allowed in determining said
tax, including if applicable the deduction for State death taxes
under Section 2058 of the Code, and the credit provided by Section
2010 (Unified Credit) of the Code and no other credits].
D. Income shall be paid at least quarterly unless
accumulation of income is authorized. Whenever provision is made
for payment of principal or income to any person, the same may instead
be applied for the benefit of such person. Application of principal
or income for the benefit of a person under any legal disability
may be made by payment to or application for the use of such person
directly, or in the discretion of my Trustees by payment to such
person’s parent, spouse, custodian under any Uniform Gifts to Minors
Act, guardian, committee or conservator, in whatever jurisdiction
appointed, or any one with whom such person resides, and the receipt
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of the one to whom any such payment is made shall be a full discharge
from accountability to such person.
TWELFTH: A. If, under the provisions of this, my Will,
any minor shall become entitled absolutely to a share of my estate
(other than tangible personal property) or to any income or principal
of a trust under my Will, the share shall vest absolutely,
notwithstanding minority; provided, however, that all such property
shall remain in the care and custody of my Executor or Trustees,
as applicable, as donee of a power during minority until such minor
becomes an adult, during which time my Executor or Trustees shall
from time to time pay to or apply for such minor=s use all or part
of the income and principal thereof without any limit whatsoever
as my Executor or Trustee in his or her sole discretion deems advisable.
When the minor becomes an adult, my Executor or Trustee shall
thereupon convey, transfer and pay over the remaining principal and
income, if any, to him or her, absolutely.
B. My Executor or Trustees and the donee of any power
during minority may in his, her or their sole discretion make any
payments or applications of income or principal to or for a minor
as follows:
1. to the parent, guardian or other person having
the care and control of such minor or of such minor’s property;
2. to such minor directly as an allowance or
otherwise, including the payment thereof to any brokerage, savings,
bank or other account maintained by or for such minor; or
3. in any other manner whatever, including the
transfer to the Trustee or Trustees of any Trust for the primary
benefit of such minor, domestic or foreign, heretofore or hereinafter
established by anyone.
Any payment or application so made shall be a full discharge to my
Executor, Trustee or donee with respect thereto.
THIRTEENTH: Anything in this Will to the contrary
notwithstanding, I direct that if any person who is either (A)
directly or indirectly interested in my estate under the provisions
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of this Will or any codicil hereto, or (B) acting on behalf of any
person so interested or so named or referred to, (“such person”)
shall directly or indirectly institute, conduct or in any manner
whatsoever take part in or aid in any proceeding to oppose the probate
of this Will or any codicil hereto, or to impair, invalidate or set
aside the same or any of its provisions, then such person, or the
person on whose behalf such person is acting, as applicable, shall
be excluded from any participation in my estate and shall thenceforth
cease to have any right, title or interest in or to any portion of
my estate, or the income therefrom, or any devise or bequest hereunder
or under any codicil hereto; provided, however, that nothing in this
Article THIRTEENTH shall be construed to prevent my Executor or
Trustees from instituting or bringing any action, suit or proceeding
for the construction or interpretation of any provision of this Will
or any codicil hereto, or to prevent any beneficiary who is directly
or indirectly interested in my estate from disclosing relevant
information in a proceeding for the probate of my Will or the
construction of my Will.
FOURTEENTH: If my wife, MARY TESTATOR, shall predecease
me and any minor child of ours shall survive me, I nominate, constitute
and appoint my brother and sister-in-law, ROBERT TESTATOR and ANNE
TESTATOR, or the survivor of them, to be the Guardians or Guardian
of the person and property of each such minor child, without bond,
and with all the powers and discretion of my Executor and Trustees
hereunder to the extent permitted by law. The Guardians or Guardian
also shall have power and discretion to select and change the domicile
and residence of any minor child of mine within or without the state
of my domicile at my death. In applying principal and income for
the benefit of any minor child of mine, I direct my Trustee to pay
to the Guardians or Guardian of the person of said minor all expenses
of said Guardians or Guardian occasioned by having said minor in
their, his or her household.
FIFTEENTH: A. I nominate, constitute and appoint
my wife, MARY TESTATOR, or if she fails to qualify or ceases to serve
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I nominate, constitute and appoint my brother, ROBERT TESTATOR, or
if he fails to qualify or ceases to serve I nominate, constitute
and appoint my sister, JANE TESTATOR, to be the Executor of this
Will.
B. I nominate, constitute and appoint my wife, MARY
TESTATOR, and my brother, ROBERT TESTATOR, to be the Trustees under
Article [SEVENTH or EIGHTH, as applicable] of this Will. If my said
brother fails to qualify or, having qualified, ceases for any reason
to act as such Trustee, I nominate, constitute and appoint my sister,
JANE TESTATOR, to act as his successor Trustee.
C. I nominate, constitute and appoint my brother, ROBERT
TESTATOR, or if he fails to qualify or ceases to serve I nominate,
constitute and appoint my sister, JANE TESTATOR, to be the Trustee
under Article NINTH of this Will.
D. Each person appointed as a successor Executor or
Trustee shall have all of the powers, authorities, duties and
discretion herein conferred upon my Executor and Trustees with like
effect as if he had been originally named hereunder. I direct that
no Executor, Trustee or donee of a power during minority, named herein
or appointed as hereinafter provided, shall be required to post any
bond or other security of any kind in any jurisdiction for the faithful
performance of his duties, including without limitation in connection
with any application for advance payment of commissions.
E. I authorize any individual Executor or Trustee at
any time acting to appoint an individual or a succession of
individuals to act as his or her successor in the event of any vacancy
in his or her office not otherwise provided for hereinabove. Any
such appointment may be made at any time by written instrument signed
and acknowledged by the Executor or Trustee making the appointment
and shall take effect upon the successor Executor or Trustee
qualifying according to law. At any time prior to such appointment
becoming effective it may be revoked by written instrument signed
and acknowledged by the Executor or Trustee who made the appointment.
In the event of conflicting appointments, the appointment by the
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Executor or Trustee who was acting as such first shall prevail over
appointments made by any Executor or Trustee acting subsequently.
F. I authorize any Trustee to resign in any capacity
by giving written notice of resignation to each co-Trustee, if any,
and by filing such notice in the court having jurisdiction of my
estate, provided, however, that if no disinterested co-Trustee is
then acting, such resignation shall become effective only upon the
qualification of a successor Trustee.
G. Anything in this Will to the contrary notwithstanding,
my wife, MARY TESTATOR, while acting as a Trustee, shall not
participate in any discretionary payment of principal or income or
any discretionary allocation of receipts or disbursements between
principal and income, but such decision shall rest exclusively in
the discretion of my other Trustee.
H. My Executor and Trustees may settle any account at
any time by agreement or judicially. Any agreement made with those
beneficiaries under no legal disability who at the time are currently
entitled to the income or presumptively entitled to the principal
shall bind all persons, whether or not then in being or of legal
capacity, then or thereafter entitled to the income or principal,
and shall release and discharge my Executor and Trustees for the
acts and proceedings embraced in the account as effectively as a
judicial settlement, notwithstanding the circumstance that any
Executor or Trustee may also be a party to such agreement in a separate
capacity as a fiduciary of another estate or trust. Where a party
to any judicial proceeding or agreement has the same interest as
a person under a disability, it shall not be necessary to serve the
person under a disability, or to make such person a party to the
agreement.
[I. consider for testator with out-of-state family: I
specifically contemplate that the assets of one or more of the trusts
hereunder may need to be removed outside of the State of New York
to a jurisdiction where one or more of the Trustees or beneficiaries
thereof resides in order to facilitate administration. Accordingly,
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I direct that my Trustees in their sole discretion shall have the
authority to so remove the assets of any such trust for such purpose,
any provision of law or rule of court to the contrary
notwithstanding.]
[J. consider for out-of-state testator: Although I am
not currently a resident of the State of New York, the bulk of my
property is located therein, and I desire that my estate and any
trust created hereunder shall be administered primarily in the State
of New York and to the extent possible be governed by its laws.
Accordingly, I give my executor absolute discretion to offer this
Will for original probate in the State of New York, in which event
my Executor and any Trustee hereunder shall qualify as such under
the exclusive jurisdiction of the Surrogate’s Court of the County
in that State where my will is offered for probate; and I hereby
elect, pursuant to Section 3-5.1(h) of the Estates, Powers, and Trusts
Law of the State of New York, as to all my property except real property
or tangible personal property located outside of the State of New
York at the time of my death, that this Will and the testamentary
dispositions contained herein shall be construed and regulated in
all respects, not only as to administration but also as to validity
and effect, by the laws of the State of New York; and I direct that
my Executor and Trustees shall be deemed to posses all discretionary
and other powers given by said laws.]
SIXTEENTH: My Executor, Trustees and the donee of a
power during minority shall have all of the powers and discretion
now or hereafter granted to Executors and Trustees by the Estates,
Powers and Trusts Law of the State of New York, or any laws amendatory
or supplemental thereto. Without limiting the foregoing, my Executor
and Trustees shall, without application to any court, have the
following powers and discretion:
1. Without duty to diversify, to retain any
property real or personal owned by me at the date of my death, to
invest and reinvest in any listed or unlisted domestic or foreign
securities or any other property real or personal even though not
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of the character authorized by law for estate or trust investments,
and including an undivided interest as tenant in common, co-partner
or otherwise.
2. To sell real or personal property at public or
private sale, for cash or on credit, secured or unsecured.
3. To enter into leases as lessee or lessor for
any period whatever even exceeding the period allowed by law or
extending beyond the probable expiration of the administration of
my estate or of any Trust hereunder.
4. To exchange property for other property of any
kind.
5. To grant options for any period even exceeding
the period allowed by law or extending beyond the probable expiration
of the administration of my estate or of any trust hereunder.
6. To exercise, allow to lapse or otherwise dispose
of or deal with any options, subscriptions or other rights of any
kind.
7. To consent to, oppose, or otherwise participate
in any corporate action or change and in connection therewith to
delegate discretionary powers, deposit securities and pay
assessments or other charges as an expense.
8. To vote in person or by proxy and in connection
therewith to delegate discretionary powers.
9. To compromise, adjust or settle any claims in
favor of or against me or my estate or any Trust hereunder in any
manner whatever.
10. To manage real property as if the owner thereof,
including without limitation, the power to make repairs, alterations
and improvements to any real property, to demolish any structures
or to abandon any improved or unimproved real property or to allow
the same to be sold for taxes or other obligations of any nature
which may be a charge or lien upon the same.
11. Without increase or decrease of liability, to
hold securities and other property in the name of any domestic or
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foreign nominees without indication of the existence of any fiduciary
relationship or in bearer form.
12. To hold property in any place within or without
the United States.
13. To employ domestic or foreign custodians,
depositories, agents, accountants, attorneys, investment advisers
and brokers, to delegate to them discretionary powers and to
compensate them for their services as an expense.
14. To make any or all divisions or distributions
hereunder wholly or partly in cash or other property, real or personal,
and for that purpose to allot in equal or unequal proportions
securities or other property, or undivided interests therein.
15. To waive or amend any of the terms of any bond
or note and mortgage or deed of trust securing an obligation or to
hold the same after maturity as a past due obligation; to foreclose
any such mortgage or deed of trust, to take title to, take possession
of, manage, operate or lease any property covered by such mortgage
or deed of trust, temporarily or permanently, and in partial or
complete satisfaction of any claim thereunder; to protect such
property against or to redeem it from forfeiture for nonpayment of
taxes, assessments or any other liens, and as an expense, to pay
for insurance, protection, maintenance and repair thereof.
16. Without incurring personal liability, to
continue, assume or renew any loans which I may have contracted,
to borrow money from time to time from any lender for any estate
or Trust purpose upon such terms and for such periods (even extending
beyond the probable termination of the administration of my estate
or of any Trust hereunder) as they may deem advisable and to pledge,
mortgage or deed in trust any property as security for such loans
or borrowings.
17. To rely upon any report, statement or paper and
upon any message of any kind if believed to be genuine, proper or
authorized.
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18. To assume, in the absence of written notice to
the contrary from the person or persons connected, that a fact or
any event by reason of which an interest or estate hereunder shall
commence or terminate does not exist or has not occurred.
19. To exercise any discretion or right of election
which may at any time be granted to Executors or Trustees by the
Code or any acts amendatory thereof or supplementary thereto without
being required to make any adjustment or apportionment between income
and principal as a result of such decision.
20. To allocate any increase to basis under Section
1022 of the Code to any property included in my gross estate with
respect to which such an election may be made, including without
limitation property not passing under this Will and property in which
my executor may have a personal interest.
SEVENTEENTH: I direct that all estate, inheritance,
succession and similar taxes or duties (other than any tax, including
interest and penalty thereon, on any generation skipping transfer)
which may be levied or imposed on or with respect to any property
passing pursuant to the provisions of this Will [consider, if
appropriate, making this clause applicable to all property, whether
passing under or outside the Will] and required to be included in
my gross estate under the provisions of any tax law, together with
interest and penalty thereon, shall be paid from my general estate
as an expense of administration, without apportionment. [alternative,
if appropriate: shall be equitably apportioned among the persons
interested in such property, in accordance with the provisions of
New York law] I direct that any generation skipping transfer taxes
as defined in the Internal Revenue Code shall be paid from the trust,
fund, or other assets giving rise to such tax.
EIGHTEENTH: A. The use of any gender shall include
the other gender and the use of the singular or the plural shall
include the other.
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B. If I at any time execute a codicil to this my Will
all reference herein to “my Will” or words of like import shall include
any and all codicils.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this day of , 2011.
______________________________ John Q. Testator
The foregoing instrument was, on the date thereof, Signed, Sealed, Published, and Declared by JOHN Q. TESTATOR, the Testator therein named, as and for his Last Will and Testament, in the presence of us, the undersigned, who, at his request and in his presence and in the presence of each other, have hereto set our names as witnesses. ________________________ residing at _________________________
_________________________ ________________________ residing at _________________________
_________________________ ________________________ residing at _________________________
_________________________
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STATE OF NEW YORK ) : ss.
COUNTY OF NEW YORK)
Each of the undersigned, individually and severally being duly sworn, deposes and says:
The original Will of JOHN Q. TESTATOR was subscribed in our presence and sight at the end thereof by said Testator on the day of , 2011.
Said Testator at the time of making such subscription declared the instrument so subscribed to be his Last Will.
The undersigned thereupon signed their names as witnesses at the end of said Will at the request of said Testator and in his presence and sight and in the presence and sight of each other.
Said Testator was, at the time of so executing said Will, over the age of 18 years and, in the respective opinions of the undersigned, of sound mind, memory and understanding and not under any restraint or in any respect incompetent to make a Will.
The Testator, in the respective opinions of the undersigned, could read, write and converse in the English language and was suffering from no defect of sight, hearing or speech, or from any other physical or mental impairment which would affect his capacity to make a valid Will.
The said Will was executed as a single, original instrument and was not executed in counterparts.
Each of the undersigned was acquainted with said Testator at such time and makes this affidavit at his request.
The said original Will of JOHN Q. TESTATOR, dated , 2011, was shown to the undersigned at the time this affidavit was made and was examined by each of them as to the signatures of said Testator and of the undersigned.
The said Will was executed by the Testator and witnessed by each of the undersigned affiants under the supervision of Bill Blackstone, Esq., an attorney-at-law.
______________________________ ______________________________ ______________________________
Severally sworn to before me this day of , 2011. ____________________________
Notary Public
Faculty Biographies
JOHN J. REDDY, JR Reddy, Levy & Ziffer, P.C.
1993-2010 Counsel to the Public Administrator of the County of New York
2009-present Counsel to the Public Administrator of Bronx County Partner, Reddy, Levy & Ziffer,P.C. Representing private and pro bono clients in the Surrogate’s and Supreme Courts
1979-1993 Associate, Arenson, Ditmar, Karban and Bekerman Represented the Public Administrator of the unty of New York Co
Teaching Appointments 2005-present Adjunct Professor of Law, New York Law School
Course in Estate Administration Publications
Essential Steps after “Finishing” the Estate Plan: Part 1 — Pre-mortem Planning, Probate & Property, March/April 2007, Vol. 21, No. 2* Essential Steps after “Finishing” the Estate Plan: Part 2 — Post-mortem Planning, Probate & Property, May/June 2007, Vol. 21, No. 3* *(Recipient of the ABA, Real Property, Trust & Estate
Law Section 2007 Excellence in Writing Award)
The Role of the Public Administrator: Has It Expanded? New York Law Journal, September 4, 2007
Expanding the Class to Include Post Conceived Children New York Law Journal, October 23, 2007
Law of In Terrorem Conditions Is on the March New York Law Journal, February 20, 2008
Exoneration Clauses: Two Cautionary Tales New York Law Journal, April 16, 2008
Education
Bachelor of Science Fordham College 1976 Juris Doctor New York Law School 1979
Articles Editor, Human Rights, 1979 Award for Outstanding Editorial Contribution
Bar Admissions
Supreme Court, New York State, First Department Supreme Court, State of New Jersey Supreme Court of the United States
Professional Service Office of Court Administration: Member — Surrogate’s Court
Advisory Committee to the Chief Administrative Judge Association of the Bar of the City of New York: Member —
Council on Judicial Administration New York County Lawyers Association: Past Co-Chair — Estates
& Trusts Section American Bar Association: Member — Real Property, Probate &
Trust Law Section and Community Outreach Committee New York State Bar Association: Member — Trusts & Estates
Section American Bar Association: Program Chair — Committee on
Community Outreach Preparing for careers in Trusts & Estates Law Preparing to qualify as Guardian ad Litem in Surrogate’s Court Proceedings (2006)
(Co-sponsoring organizations: Asian American Bar Association of New York; CUNY Law Alumni; Dominican Bar Association; Latino Lawyers Association of Queens County; Macon B. Allen Black Bar Association; Metropolitan Black Bar Association; and Puerto Rican Bar Association)
Community Activities
Operation Helping Hand, Inc. — Team Leader rebuilding homes in New Orleans. Ecuador Quilt, Inc. — Co-founder of 501(c)(3) charity that
funds construction of clinics, community centers and nursery day care centers in Sao Pablo, Ecuador.
Inner-City Scholarship Fund — Donor-Mentor providing scholarships and guidance to inner-city children
NAACP — Member, Mid-Manhattan Branch Habitat for Humanity — Volunteer Worker, Tri-State Area United Jewish Appeal – Federation of Jewish Philanthropies
Lecturer
New York County Lawyers Association,
Drafting Testamentary and Inter Vivos Instruments New York County Lawyers Association,
Drafting Basic Testamentary Documents and Advanced Directives
New York County Lawyers Association, Blueprint for Building Your Practice, Trusts & Estates
American Bar Association, Real Property, Trust & Estate Law Section, Community Outreach Committee in conjunction with several minority bar associations in the New York City area, September — November, 2007, 8-week lecture series at the Appellate Division, First Department.
An Introduction to Elder Law and Article 81
Guardianships and Ethics and Disciplinary Proceedings (Co-Chair)
American Bar Association, Real Property, Probate and Trust Section Spring Symposium in Washington, DC,
An Introduction to Trusts & Estates
New York State Bar Association, General Practice Section, Annual Meeting in New York, NY,
Will Execution Techniques and Depositions of Attesting Witnesses
American Bar Association, Real Property, Trust & Estate Law Section, Community Outreach Committee in conjunction with several minority bar associations in the New York City area, September — 8-week lecture series
What You Need To Know to Qualify as a Guardian ad Litem in Surrogate’s Court (Co-Chair)
New York State Bar Association, Trusts & Estates Section, Probate and Administration of Estates
New York County Lawyers Association,
Blueprint for Building Your Practice, Trusts & Estates
New York State Bar Association, Trusts & Estates Section, Spring Meeting at Buffalo, NY,
Insiders Guide to the Surrogate’s Court, Discussion Leader
New York County Lawyers Association,
Will Drafting 101 New York County Lawyers Association,
Bridge the Gap, A Program for Newly Admitted Attorneys New York County Lawyers Association,
Estate Planning for Non-Traditional Couples
American Bar Association, Real Property, Trust & Estate Law Section Fall Symposium at San Francisco, CA,
An Introduction to Estate Administration
American Bar Association, Real Property, Trust & Estate Law Section, Community Outreach Committee, in conjunction with minority bar associations in the New York City area, September — seven-week lecture series
An Introduction to Estate Administration (Program Coordinator)
New York County Lawyers Association, Will Drafting 101
American Bar Association, Real Property, Trust & Estate Law Section Spring Symposium at Washington, DC,
An Introduction to Trusts & Estates
New York County Lawyers Association, Drafting Basic Testamentary Documents and Advanced Directives
American Bar Association, Real Property, Trust & Estate Law Section, Community Outreach Committee in conjunction with several minority bar associations in the New York City area, September — 7-week lecture series
An Introduction to Estate Planning (Program Coordinator)
New York State Trial Lawyers Institute, Infant/Wrongful Death Compromises
American Bar Association, Real Property, Trust & Estate Law Section, Spring Symposium in Seattle, WA,
Preparing for the Potential Probate Contest Before and After Death
New York County Lawyers Association,
Drafting Basic Testamentary Documents and Advanced Directives
Association of the Bar of the City of New York,
Guardian ad Litem Training — Representing Respondents in the Surrogate’s and Other Courts
New York Law School Continuing Legal Education Program,
Qualifying for Appointment as Guardian ad Litem in Surrogate’s Court (Program Coordinator)
Association of the Bar of the City of New York, Drafting Testamentary and Inter Vivos Instruments
Leslie J. Wilsher
Bar Admissions
• New York, 1980
Professional Associations and Memberships
• Association of the Bar of the City of New York, 1980 - Present • New York State Bar Association, 1983 - Present • American Bar Association, 1980 - Present
Classes and Seminars
• Estate Planning for Beginners & Non Specialists, Association of the Bar of the City of New York, May 1997, September 1999, September, 2000
• Estate Planning for Larger Estates, Association of the Bar of the City of New York, 2000 - Present
• Basic Estate Planning, Practicing Law Institute, 1998 - 2000 • Basic Estate Administration, Association of the Bar of the City of New York, 1997 • Estate Planning for Unmarried Couples-Ethical Considerations, Association of the Bar
of the City of New York, 1998 • Estate Planning with Retirement Benefits, Practising Law Institute • Estate Planning with Retirement Benefits, Association of the Bar of the City of New
York
Past Employment Positions
• Leslie J. Wilsher, Esq., Sole Practitioner, 1995 - 2000 • Kelley Drye & Warren, Associate, 1985 - 1994
Education
• Columbia Law School, New York, New York, 1979 J.D. Honors: Stone Scholar
• Douglas College (Rutgers), New Brunswick, NJ, USA, 1976 B.A. Honors: cum laude Major: Political Science/Russian Language & Literature
Fraternities/Sororities
• Pi Sigma Alpha