Changes to Property After Will Execution

Question 1

devise

Answer 1

real property

Question 2

bequest

Answer 2

personal property

Question 3

legacy

Answer 3

personal property gifted in a will, usually of money

Question 4

specific devise/bequest/legacy

Answer 4

gift of a particular item of property distinct from all other objects in the testator’s estate at the time of will execution (e.g., “I leave my Dell computer Model 92 with serial number 123 to Walter Bishop”)

specific bequest of general nature is not distinguishable from the rest of the testator’s estate until testator dies (e.g., “I leave my computer to Walter Bishop”)

Question 5

general bequest or legacy

Answer 5

gift of general economic benefit (often dollar amount) payable out of general assets of estate w/o requiring any particular source of payment

Question 6

demonstrative legacy

Answer 6

gift of a general amount that is to be paid from a designated source or fund

if designated fund is insufficient, balance will be paid from other assets of the estate

Question 7

residuary gift

Answer 7

remainder of estate; balance after paying debts, expenses, taxes, and specific/general/demonstrative gifts

Question 8

ademption by extinction

Answer 8

failure of a gift b/c the property is no longer in the estate at the time of death

*applies only to specific devisees and bequests, NOT general or demonstrative legacies (which instead are satisfied by selling or directly giving other assets)

Question 9

partial ademption

Answer 9

e.g., testator devises large tract of land and then conveys a portion during lifetime; beneficiary takes remaining portion

Question 10

is testator’s intent considered when determining whether gift was adeemed?

Answer 10

yes - if possible, a court can find that a testator intended to make a general or demonstrative gift rather than a specific gift and give the person that instead

Question 11

exceptions to ademption doctrine

Answer 11

these are instances when it’s reasonable to infer that the testator did not intend for the gift to fail:
1) balance of purchase price (testator sold gifted item and the purchaser still owes the testator money - that money goes to beneficiary)
2) proceeds of condemnation, insurance, or foreclosure
3) proceeds from sale by a guardian or conservator (beneficiary receives legacy equal to the proceeds received from the property)

Question 12

special rules for corporate securities

Answer 12

courts will want to construed as general legacy if possible to avoid ademption

BUT possessory words like “my 100 shares of stock” or words of identification (“stock number 123”) make the gift specific and subject to ademption

change in form is OK (e.g., merger of stock to another entity)

Question 13

ademption by satisfaction

Answer 13

applies when beneficiary received gifted property before testator’s death

proof of satisfaction either
(a) testator provides for satisfaction in instrument itself or in contemporaneous writing, or
(b) donee acknowledges, in writing, that gift is one in satisfaction

Question 14

changes in value after execution of will

Answer 14

specific gifts - appreciation/depreciation are irrelevant

increases occurring before testators death:
1) income on property goes to general estate
2) improvements to real property to the specific devisee

increases occurring after testator’s death - all pass to the specific beneficiary b/c beneficiary is deemed to own the property from the time of the testator’s death

Question 15

no exoneration of liens

Answer 15

in CA, liens on specifically devised property are not exonerated (i.e., paid off with the estate funds) unless the will so directs

Question 16

abatement

Answer 16

reducing testamentary gifts in cases where estate assets are not sufficient to pay all claims against the estate and satisfy all bequests and devises

if no order of abatement in the will, then abate in this order:
1) intestate property
2) residuary property
3) general gifts to persons other than testator’s relatives
4) general gifts to testator’s relatives
5) specific gifts to persons other than testator’s relatives
6) specific gifts to testator’s relatives

Question 17

disclaimers

Answer 17

beneficiaries may disclaim; property passes as if beneficiary predeceased testator under terms of the will