Multi- Jurisdictional Estates PDF

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New York Trust and Estates EPTL Lecture...

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Trust and Estates Notes Spring 2020

MULTI-JURISDICTIONAL ESTATES Local state law is used for wills and trusts when there is no conflict of laws EPTL 3-5.1- formal validity, intrinsic validity, effect interpretation, revocation or alteration of testamentary dispositions of, and exercise of testamentary powers of appointment over property by wills having relations to another jurisdiction • (a) Definitions o 1) Real Property = land or estate in land, including leaseholds, fixtures, and other liens o 2) Personal Property = any property other than real property, including tangible and intangible things o 3) Formal Validity = relates to the formalities prescribed by law of a jurisdiction for the execution and attestation of a will (3-2.1) o 4) Intrinsic Validity = the formalities prescribed by the law of the jurisdiction for the execution and attestation of a will o 5) Effect = relates to the legal consequences attributed under the law of a jurisdiction that determines legality of a testamentary disposition o 6) Interpretation = relates to the procedure of applying the law of a jurisdiction to determine the meaning of language employed by the testator where his intention is not otherwise ascertainable o 7) Local Law = law which the courts of a jurisdiction apply in adjudicating legal questions that have no relation to another jurisdiction • (b) Subject to other provisions of this section: o 1) When REAL PROPERTY is involved, applicable law is where the property is LOCATED (on formal validity, intrinsic validity, effect, interpretation, revocation or alternation) o 2) When PERSONAL PROPERTY is involved, applicable law is where the decedent was DOMICILED AT DEATH (on intrinsic

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validity, effect, revocation or alternation – NOTE THAT FORMAL VALIDITY AND INTERPRETATION ARE OMITTED) (c) A will disposing of PERSONAL PROPERTY, wherever situated, OR REAL PROPERTY situated in NY, made within or without NY by a domiciliary or non-domiciliary, is FORMALLY VALID and admissible to probate in NY, IF it is in writing and signed by the testator, and otherwise executed an attested in accordance with the local law of: (1) NY (2) The jurisdiction in which the will was executed, at the time of the execution OR (3) The jurisdiction in which Testator was domiciled, either at the time of execution or death (d) Testamentary disposition of PERSONAL PROPERTY, intrinsically valid under the law of the jurisdiction in which testator was domiciled at time will was executed shall NOT be affected by a subsequent change in the domicile of the testator to a jurisdiction by the law which the disposition is intrinsically invalid o I.e., if legal in one place and illegal in another ! law of jurisdiction domiciled in at time of execution is applicable (e) Interpretation of testamentary disposition of PERSONAL PROPERTY shall be made in accordance with local law of jurisdiction in which testator was domiciled at time will was executed o I.e., what issue means is determined by local law where domiciled when executed (f) To determine whether there was effective revocation of PERSONAL PROPERTY by subsequent testamentary instrument or physical act, use the law of jurisdiction in which testator was domiciled at the time the subsequent instrument was executed or physical act was performed. (g) Subject to (d), (e) and (f), the intrinsic validity, effect, revocation or alteration of a testamentary disposition by which a power of appointment over PERSONAL PROPERTY is exercised, and the question of whether such power has been exercised at all, are determined by:

o 1) presently exercisable power of appointment ! law of the jurisdiction in which the donee of such power was domiciled at the time of death. o 2) general power of appointment exercisable by will alone or by special power of appointment ! ▪ A) If created by will! law of the jurisdiction in which the donor of the power was domiciled at the time of death ▪ B) If created by inter vivos disposition ! law of the jurisdiction which the donor of the power was intended to govern such disposition ▪ C) If donor is himself the donee of a general power of appointment exercisable by will alone ! law of the jurisdiction in which the donor of the power was domiciled at the time of death o 3) the formal validity of a will by which any power of appointment over PERSONAL PROPERTY is exercised is determined in accordance with © on the basis that the testator referred to therein is the donee of such power. • (e) If testator is NOT domiciled in NY at time of death AND he has property in NY, he can ELECT to have NY law apply • (i) If there is a question as to whether something is REAL PROPERTY ! it will be determined by the law of the jurisdiction in which the land is situated. Mutli-jurisdiction estate questions...