5) Distribution Flashcards
specific devise: def
gift of specific item of property
demonstrative devise: def
gift of a general nature, coming from a specific source ($100,000 from the sale of the house)
general devise: def
satisfied out of general assets of the estate
residuary devise: def
anything not passing under one of the general provisions of the will –> goes to residuary beneficiaries (to avoid intestacy)
intestate devise: def
devise through the laws of intestacy
ways property can change
1) ademption
2) satisfaction
3) increases
ademption by extinction: def
- -specific devise only
- -at time of death, estate no longer contains that specific item
- -result: it gets adeemed (cancelled)
- -intent not a factor
partial ademption?
is possible
ademption in CA
CA favors NONademption
ways courts try to find a way around ademption
1) insurance proceeds, unpaid condemntaiton award, or purchase price to devisee
2) classify the devise as something other than a specific devise
3) construe clause at time of death, rather than execution
4) viewing as non-substantial change in form (stocks)
satisfaction: def
will has gift to devisee, but after the will and prior to death, the testator makes inter vivos gift to devisee
satisfaction: rule
the gift will ONLY satisfy if one of these:
1) will says so, or
2) writing signed by testator or beneficiary says this is meant to be satisfaction
3) other extrinsic evidence shows meant to be satisfaction
advancement: def
like satisfaction, but for intestate shares
advancement: rule
it’s only advancement if:
1) decedent declared in writing OR heir ack’d in writing that the gift was an advancement, and
2) writing/ack must indicate that gift is to be taken into account when contributing amount to be distributed (otherwise it’s just a gift)
increases: between execution and death
1) any increase does not go to the devisee –> becomes part of estate
2) stock: if specific devise of stock the specific increase DOES go to that devisee (exception)
increases: between death and distribution
specific devisee gets those increases
general or demonstrative generally no
abatement: def
gifts are reduced under the will to satisfy the debts and claims of the estate
order of abatement
1) property that would pass by intestacy
2) residuary
3) general
4) demonstrative
5) specific
order of abatement: general principles
(reverse specificity – group by group, pro rata within group–no special for spouse). Will can change it
exoneration: CA rule
specific gift passes the property SUBJECT TO the mortgage. NO exoneration!
exoneration: def
if the estate were to pay off the mortgage first (but doesn’t happen in CA)
changes to people: kinds
1) lapse + anti-lapse
2) slayer statute
3) disclaimer
lapse: def
if the beneficiary predecases the testator, gift will lapse
lapse: simultaneous death
need clear + convincing evidence that one person survived the other by 120 hours. Otherwise, deemed to have predeceased
lapse: anti-lapse statute:
UNLESS there is a contrary intent in the will, gift to a deceased benefiary passes to the issue of the beneficiary
ONLY applies to save a gift to certain ppl…
applies to class gifts too.
anti-lapse statute: applies to who?
1) relatives of decedent OR
2) decedent’s surviving, deceased, or former spouse
slayer statute: def
if feloniously and intentionalyl kill the decedent, can’t get from will/trust/intestate
disclaimer: def
beneficiary can refuse a gift under a will by disclaiming, partially or totally.
irrevocable
disclaimer requirements:
1) in writing
2) signed by intended beneficiary
3) identify: creator of interest, what’s being disclaimed, state the disclaimer, extent of the disclaimer.
disclaimer results
beneficiary treated as if predeceased the testator
anti-lapse may apply
