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Home , Attestation clause, Legatee, Operation of law, Trust law

e t u t

i Wi l l Dr a f t i n g 101

Prepared in connection with a Continuing course presented at New York County ’ Association, 14 Vesey Street, New York, NY

s t scheduled for June 8, 2011. n

P r o g r a m Co -Ch ai r s : Paul J. O’Neill Jr., Principal, Office of Paul J. O’Neill, Jr.

F ac u lt y : Leslie Wilsher, Esq., Greenfield, Stein & Senior, LLP John J. Reddy, Jr., Bekerman & Reddy, LLP NYCLA-CLE I

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.

Information Regarding CLE Credits and Certification Will Drafting 101 June 8, 2011, 6:00PM to 9:00PM

The New York State CLE Board 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- ( 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. 3. Doctors and health care professionals

4. Clergy c. 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 ;

agent says that client is incapacitated

iv. All powers of attorney lapse when the principal dies II. Non- Issues in

a. Is client competent to make a Will?

i. Capacity to execute Will is lowest capacity in law (capacity to

enter into a 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 ’s bounty)

ii. Get addresses of relatives since these people may be necessary

parties to 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

i. Cars

ii. Boats

iii. Jewelry

iv. Artwork

v. Household furnishings

vi. Clothing and personal effects

b.

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 interests

h. Interests in trusts

i. Powers of appointment

j. Annuities

3. Remember to review:

a. Life

i. Often not an asset during lifetime, but needs

to be considered in creating estate plan

ii. 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. iii. Manner held

1. Client’s name alone

2. Joint (with or without right of survivorship)

3. Designated

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.

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 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

i. See EPTL 2-1.8 for default if the Will is

silent

ii. If overriding default , be careful not to

establish an infinite loop, especially on tax

apportionment

b. Devises of

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

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

i. Executors

ii. 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 , 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

clause and equalization

clause

iii. In Terrorem clauses

iv. Exercises of powers of appointment v. Use of formula and fractional bequests

i.

III. Wills - Execution issues

a. Should be supervised by an attorney

i. A 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 ? Would you like these persons to

be the 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 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 , 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 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 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 or 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.

-1- 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 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 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

-2- 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

-3- 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 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 ”) 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

-4- 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 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 shall be contingent upon survivorship at the time such interest vests in , all distributions or divisions to or among “descendants” or “issue” shall be made per stirpes and not per capita or by

-7- representation, and the sole member of a class or group shall take the whole gift if alone surviving. B. Any person occupying any 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 hereto and I, or any income beneficiary and remainderman of any trust hereunder, die in such circumstances that the order of our or their cannot be established by , 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 appointed, or any one with whom such person resides, and the receipt

-8- 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

-9- 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 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

-10- 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

-11- 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 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 , 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,

-12- 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 . 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

-13- 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 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 upon the same. 11. Without increase or decrease of liability, to hold securities and other property in the name of any domestic or

-14- 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 . 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 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 , 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 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.

-15- 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 , 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.

-16- 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 ______

______

-17- 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 -18-

Faculty Biographies

JOHN J. REDDY, JR Reddy, Levy & Ziffer, P.C.

1993-2010 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 1979-1993 Associate, Arenson, Ditmar, Karban and Bekerman Represented the Public Administrator of the County of New York 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, , 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 Association of the 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 & 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 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