Comprising and Construing: Post-Execution Changes to People and Property Flashcards
What is a specific bequest?
A gift by will of something that can be identified and distinguished from all other things of the same kind, satisfied only by delivery of the particular thing.
What indicates that a specific legacy was intended in a will?
The use of the possessive word ‘my’.
Define a general legacy.
A gift payable out of the general assets of the decedent’s estate and not separated or distinguished from other things of like kind.
What is a demonstrative bequest?
A bequest of a sum certain to be paid out of a particular fund.
What happens if a specific bequest is not in existence at the testator’s death?
The legatee will be entitled to satisfaction out of the general estate.
What is ademption?
What happens when a gift under a will fails for whatever reason.
What is ademption by extinction?
Occurs when property specifically bequeathed or devised is no longer in the testator’s estate at death.
Can a general gift adeem by extinction?
No, ademption by extinction can only occur with a specific bequest/gift/devise.
What is the significance of the absence of property in a will?
The fact of the property’s absence matters but the reason for its absence does not.
What happens if specifically devised property is sold or mortgaged by a conservator for an incapacitated principal?
The devisee has the right to a general devise equal to the sale price, unpaid loan amount, or recovery.
What is the non-ademption balance for a specific devisee?
The specific devisee has a right to all specifically devised property that remains in the testator’s estate at death and any balance of the purchase price, condemnation amounts, or insurance proceeds.
What is the no-exoneration rule?
Property subject to a lien will go to the designated beneficiary with that lien intact, unless the will specifies otherwise.
What occurs during abatement?
Abatement occurs if the assets of the testator’s estate are insufficient to satisfy all the bequests or devises.
List the order of abatement.
- Property that would pass by intestacy
- Residuary bequests
- General bequests
- Demonstrative bequests
- Specific bequests.
What is a class gift?
A gift made to a number of persons as a group, where the size of the group may change and each member’s share depends on the ultimate number in the class.
When does a class gift typically close?
At the time the will is effective (i.e., at the testator’s death).
What is a lapse in the context of wills?
Occurs when a beneficiary predeceases the testator, causing the gift to that beneficiary to fail.
What does an anti-lapse statute do?
Saves a gift if the predeceasing beneficiary was closely related to the testator and had surviving descendants.
What must be present for a gift to be saved by an anti-lapse statute?
- The predeceasing beneficiary was closely related to the testator
- The predeceasing beneficiary was survived by descendants.
What is required for a gift to be saved from lapse by anti-lapse statutes?
The will must not express a contrary intent.
What happens if a class member predeceases the testator and there is no anti-lapse statute?
The gift falls to the other class members.
What is the result if a beneficiary named in a will has passed away?
The gift will typically lapse unless saved by an anti-lapse statute.
What happens if the testator’s will states that anti-lapse statutes do not apply?
The gifts will lapse according to the common law principles.
Who did Andy adopt from his previous marriage?
Peggy
Andy did not adopt Ernest because he was already an adult.
What was the first provision in Andy’s valid will?
The house to his then-wife Mary
This will was created during Andy’s marriage to Mary.
What amount was bequeathed to Mayberry Church in Andy’s will?
$10,000
Who was to receive the residue of Andy’s estate according to his will?
Opie
What happens to the house after Andy’s death?
It would have gone to Mary, but she is treated as having predeceased him.
Under what statute would Opie receive the house after Andy’s death?
Anti-lapse statute or residuary clause
What remains of the $10,000 bequest to the church?
$10,000 to Mayberry Church remains
What is Helen entitled to from Andy’s estate?
Spousal share
This includes ½ interest in the marital property.
What are the components of marital property in Andy’s estate?
Boat and bank accounts
Each bank account has $25,000.
What does the UPC’s elective share statute provide?
The spouse of a decedent may elect to take one half interest in the marital property.
What is the omitted child doctrine?
A pretermitted child is entitled to share in what living siblings received from the estate.
Who is considered a pretermitted child in Andy’s case?
Peggy
She was adopted after the making of the will.
If a testator had children at the time of will execution, what happens to omitted after-born or adopted children?
They are entitled to share as if given an equal share of that portion of the estate.
Fill in the blank: Helen is entitled to _______ of the marital property.
½
