Changes to People After Execution of Will

Question 1

survival requirement for beneficiaries of will

Answer 1

must outlive testator, but no 120-hour rule like intestacy

if survival cannot be established by clear and convincing evidence, the beneficiary is deemed to have died first

Question 2

lapsed gift distribution

Answer 2

gift lapses if beneficiary predeceases testator or if beneficiary is treated as not surviving testator

how to distribute (in order):
1) under express terms of will
2) might be saved by anti-lapse statute
3) via residuary clause
4) via intestacy

Question 3

anti-lapse statute

Answer 3

substitutes descendants of predeceased beneficiary under certain circumstances; saves the gift if the predeceasing beneficiary:

1) was kindred (blood relative, adopted person, stepchild, foster child, or their issue) or kindred of testator’s surviving, deceased, or former spouse or domestic partner, AND
2) left descendants who survived the testator

*these descendants take by substitution
*note that the rule does NOT apply to predeceasing spouses or domestic partners but only their kindred

Question 4

lapse in residuary gift when 2 or more beneficiaries and 1 predeceases testator

Answer 4

CA allows the surviving residuary beneficiaries to divide the shares in proportion to their interests in the residue

Question 5

class gifts

Answer 5

only the class members who survive the testator take share unless the will provides otherwise or the anti-lapse statue requirements are met (applies whether the class member’s death occurred before or after testator executed the will)

Question 6

beneficiary dead when will executed

Answer 6

if a will makes a gift to a beneficiary who was dead at the time the will was executed, the gift is void

the rules that apply to lapsed gifts also apply to void gifts