A lifetime gift is not treated as an advancement unless proven by a writing, contemporaneous with the gift, signed by the donor evidencing his intention was that the gift be treated as an advancement or the person receiving the gift acknowledged that such was the intention. The mere fact of a lifetime gift or even oral statement that an advancement was intended will not automatically create an advancement.

Yes. The adopted child’s share comes out of the other sibling’s share (this only works if the child was adopted after the will was executed).

The gift to former spouse is not valid.

Under New York law, a child born after the execution of a parent’s last Will is entitled to a portion of the estate as long as the child is neither provided for nor mentioned in the Will. This child is referred to as a pretermitted child.

In New York, the Simultaneous Death Act provides that where a married couple dies simultaneously, half of the marital estate is distributed as if the husband survived and half as if wife survived. However, if a Will was executed and a provision addresses this instance where a couple dies simultaneously, then the Will determines how each estate is distributed. For example, a husband may write into his will the following provision: “I give my entire estate to my spouse, provided she survives me by 30 days or 60 days. If …

Unless the Will states otherwise, under New York law mortgage on real property is debt that is so tied to real property that there is a presumption that the property goes subject to the mortgage. The beneficiary of real property inherits the property subject to the mortgage debt.

If a beneficiary does not survive the testator, the devise fails. All gifts made by the Will are subject to a requirement that the beneficiary survives the testator, unless the testator specifies otherwise. Despite this rule, New York law allows for certain bequests to “survive” to the next generation. This rule is referred to as the Anti-Lapse Statute. This provides that if the Will makes a gift to the testator’s children or siblings, and a beneficiary dies before then testator, then the descendants of the deceased beneficiary will inherit whatever …

If a Will includes a specific devise of an item of property, but the testator sells or gives the item away before death, the gift is said to have adeemed. An ademption may be of the whole or may be a part of a testamentary bequest or devise. If the whole bequest or devise is disposed of prior to death, the testamentary disposition is revoked.

Under New York law, an election notice must be filed in Surrogate’s Ct within six months from the issuance of letters testamentary or letters of administration, but not later than two years after the decedent’s date of death. Written notice must be served by mail upon decedent’s personal representative.

In New York, a surviving spouse cannot be disinherited. A surviving spouse is entitled to at least $50,000 or one-third of the decedent spouse’s net estate, whichever is greater. The surviving spouse has a right of election even if the decedent has no Will. The purpose of this rule is to give effect to the testamentary substitutes. Otherwise, a spouse could make gifts with retained power to revoke and invade, and then die intestate, leaving his spouse with a right of election in an estate of zero dollars.