(4) Wills: Distribution

Question 1

Distribution: Testamentary Dispositions

Answer 1

1. Gift Guidelines of Separate and Community Property
2. General Gifts
3. Specific Gifts
4. Demonstrative Gifts
5. Residual Gifts

Question 2

Gift Guidelines of Separate and Community Property

Distribution: Testamentary Dispositions

Answer 2

In any will, a testator may only gift their share of the community property and their separate property.

Question 3

General Gifts

Distribution: Testamentary Dispositions

Answer 3

A general gift is nonspecific and is satisfied from any of the funds remaining in a testators estate.

Question 4

Specific Gifts

Distribution: Testamentary Dispositions

Answer 4

A specific gift is one that is specially identified, such as real property or personal property.

Question 5

Demonstrative Gifts

Distribution: Testamentary Dispositions

Answer 5

A demonstrative gift is a hybrid of a specific and general gift where the testator makes a general gift but also identifies the specific source the gift should come from. Ec. A specific amount of money from their savings account.

Question 6

Residual Gifts

Distribution: Testamentary Dispositions

Answer 6

A residual gift is a gift of any property remaining after the distribution of the estate to identified beneficiaries.

Question 7

Distribution: Changes to Property

Answer 7

1. Ademption by Extinction
2. Satisfaction
3. Advancement

Question 8

Ademption by Extinction

Distribution: Changes to Property

Answer 8

General Rule: A specific gift is adeemed by extinction if the testator does not own it at the time of death.
*Ademption doesn’t apply to general or demonstrative gifts
*Ex. The testator makes a specific gift but the property is later destroyed or sold before the testators death.

CA Rule: In CA. a specific gift is adeemed only if the testator intended the gift to fail.
Exception: CA recognizes 4 exceptions to the rule: (1) when the stock is changed to another form of stock (i.e., by a merger); (2) when the executor of the estate sells the property; (3) when the testator receives condemnation proceedings and there is no issue of traceability; and (4) if the specific gift was destroyed, then the beneficiary is entitled to any unpaid insurance recovery or other recovery for injury to the property.

Question 9

Satisfaction

Distribution: Changes to Property

Answer 9

Inter Vivos gift will satisfy the gift under the will if one of the following are met: (a) Must be stated in the will OR (b) A writing signed by testator or beneficiary stating that it is meant to be in satisfaction OR (c) Other extrinsic evidence brought in that shows testator intended that to be in satisfaction.

Question 10

Advancement

Distribution: Changes to Property

Answer 10

An inter vivos gift meant to be in lieu of or reduce someone’s potential intestate share only considered advancement if: (1) The decedent declared in writing, or the heir acknowledged in writing that the gift was an advancement AND (2) The decedent’s writing or heir’s acknowledgement indicate that the gift is to be taken into account when computing the amount to be distributed.

Question 11

Distribution: Changes to Testator’s Assets and Debts

Answer 11

1. Abatement
2. Exoneration

Question 12

Abatement

Distribution: Changes to Testator’s Assets and Debts

Answer 12

Definition: Abatement is the process of reducing gits.

Rule: Abatement occurs when assets are insufficient to cover debts, expenses and gifts. Gifts abate depending on class in the following order: (a) residuary; (b) general; (c) specific. Gifts within each class are abated equally.

Question 13

Exoneration

Distribution: Changes to Testator’s Assets and Debts

Answer 13

A specific gift passes the property subject to any mortgage or other lien on property at testator’s death.

Question 14

Distribution: Changes to People

Answer 14

1. Lapse of Gifts
2. Anti-Lapse Statue
3. Simultaneous Death
4. Slayer Statute
5. Disclaimer

Question 15

Lapse of Gifts

Distribution: Changes to People

Answer 15

If a beneficiary doesn’t exist (aka dead) at the time of the testators death then the gift lapses and returns to the residual estate which is distributed under intestate succession rules.

Question 16

Anti-Lapse Statute

Distribution: Changes to People

Answer 16

CA has an anti-lapse rule which if the beneficiary doesn’t exist (aka dead) at the time of the testators death then the gift will not lapse but instead pass to the deceased beneficiaries issue. This anti-lapse statute only applies if the deceased beneficiary (1) was related by blood to the testator; (2) was survived by issue; and (3) there is no contrary intent.
*This also applies to a member of a class gift.

Question 17

Simultaneous Death

Distribution: Changes to People

Answer 17

A person must survive the decedent by 120 hours by clear and convincing evidence to be deemed a beneficiary, if this cannot be proven they will have predeceased the decedent.

Question 18

Slayer Statute

Distribution: Changes to People

Answer 18

A person who “feloniously and intentionally” kills the decedent is not entitled to take from the deceased under a will, trust, or power of appointment, or by intestate succession.

Question 19

Disclaimer

Distribution: Changes to People

Answer 19

A beneficiary may refuse to take a devise by filing a disclaimer that: (a) Is in writing and signed by the intended beneficiary; (b) Identifies the creator of the interest; (c) Describes the property or interest being disclaimed AND; (d) States the disclaimer and declares the extent thereof.

A beneficiary who disclaims a gift is treated as if she predeceased the testator.

Question 20

What the surviving spouse recieves of the Community Propery

Intestate Estate Distribution

Answer 20

A surviving spouse is entitled to one half of the decedent’s community property and quasi-community property. Which means they now own 100% of the community property and quasi-community property.

Question 21

What the survivng spouse recieves of the Separate Property

Intestate Estate Distribution

Answer 21

1. Entire Intestate Share
   Rule: if the decedent does not have any surviving issue, parent, issue of parent (sibling or issue of sibling), then the surviving spouse is entitled to 100% of the decedents separate property.
2. One Half Intestate Share
   Rule: If the decedent leaves (a) only one child or the issue of one deceased child OR (b) no issue but a parent or issue of parent then the surviving spouse will be entitled to one half interest of the separate property.
3. One Third Intestate Share
   Rule: If the decedent leaves (a) 2 or more children, (b) one child and the issue of one or more deceased children, or (c) leaves issue of two or more deceased children then the surviving spouse will be entitled to 1/3rd of the decedents separate property.

Question 22

Rule & Exception:

Omitted Spouse

Intestate Estate Distribution

Answer 22

A surviving spouse not mentioned in a will that was executed before the marriage began is entitled to a share of the separate property equal to what the spouse would have received under intestacy (but not more than one-half of the separate property).

Exception: A surviving spouse doesn’t receive the intestate share if (a) the spouse was intentionally omitted – apparent from the testamentary instrument; (b) the spouse was given property outside of the will in lieu of a disposition in the will; or (c) the omission was consistent with a valid prenuptial agreement.

Question 23

Omitted Child - Before Birth Rule

Intestate Estate Distribution

Answer 23

A child that is not mentioned in a will that was executed before their birth or adoption is presumed to have been omitted accidentally and entitled to an intestate share of the testator’s estate, unless (a) the child was intentionally omitted; (b) the child is supported by transfers outside of the will; or (c) the testator had more than one child and left all or substantially all of their estate with the parent of the omitted child.

Question 24

Omitted Child - After Birth Rule

Intestate Estate Distribution

Answer 24

A child that is not mentioned in a will that was executed after their birth is entitled to a share of the estate if the child was omitted because the decedent was unaware of the child’s existence or believed the child was dead.

Question 25

Adopted Children

Intestate Estate Distribution

Answer 25

Adopted children inherit form their parents as if they were natural born children.

Question 26

Per Capita by Respresentation Distribution

Succession

Answer 26

Modern Per Stripes

This is the succession that is used unless the will states otherwise.

The estate is equally divided by the number of surviving descendants in the generation closest to the decedent and by the number of deceased descendants with surviving issues.

Ex. If B has 6 children when they die and 3 of their children are dead but 2 of the dead children have kids then B’s estate will be split 5 ways. All of B’s children still alive will get 1/5 of the estate and for the 2 kids of B that left issues their 1/5th share will be split equally amongst their respective issues.

Question 27

Per Stripes Distribution

Succession

Answer 27

The estate is divided equally among the highest tier of beneficiaries (it doesn’t matter if they all predeceased the testator). The beneficiaries shares will then trickle down their bloodlines to the next surviving issues and be split equally amongst the issues on that tier for that bloodline.

Ex. B has 3 kids that all predecease B. Therefore B’s estate will be split 3 ways. B’s oldest child have 2 grandkids who are living so their 1/3rd will be split equally amongst them. B’s middle child has one living child so they will get their 1/3rd and B’s youngest child has 3 kids – 2 of them are dead. One of the dead kids has 2 grandkids. Therefore B’s youngest child’s 1/3rd share will be given as follows: 1/6th to the child still alive and 1/12th to each of the grand children still alive, and nothing for the child who is dead with no issues).

Question 28

Intestate Scheme

Succession

Answer 28

If there are no surviving issue, then the estate passes to the nearest generation equally in the following order: (a)Issue; (b)Parents; (c)Parents Issues; (d) Grandparents; (e)Grandparents issues; (f)Next of Kin; (g)the state.