Construction Problems Flashcards
What is an advancement under common law?
Gifts to heirs during a testator’s lifetime that are considered an advancement on the heir’s intestate share of the estate. These gifts would be deducted from the heir’s share of estate.
What is an advancement under the UPC/modern view?
Gifts to heirs during testator’s lifetime that are NOT deemed advancements UNLESS specific requirements are met
In what two circumstances will the UPC consider gifts to heirs during a testator’s lifetime to be advancements that should be deducted from their inheritance?
- The will provides for deduction of the gift, OR
- It was indicated in writing that the property was in satisfaction of a devise or that it’s value will be deducted from the value of the devise
NOTE: some states do not require a writing and any evidence if testator’s intent may be considered
What is the common law rule of lapse?
All gifts in a will are conditioned on the beneficiary surviving the testator, and any gift to beneficiaries who did not survive the testator failed and passed to the residual estate or under intestacy.
What is an anti-lapse statute?
Provides that, where a beneficiary under a will predecessors the testator, the gift will vest in the issue of that predeceased beneficiary IF:
- The predeceased beneficiary is a specified descendant of the testator (by statute), AND
- The beneficiary leaves issue who survive the testator
To which types of relationships will an anti-lapse statute apply to under the UPC?
Issue (kids and grandkids), stepchildren, grandparents, and grandparent’s issue (i.e. siblings)
What is ademption?
When a gift fails because the property is no longer in the testator’s estate at the time of their death
(Ademption by extinction)
Under the common law, is the testator’s intent relevant to ademption?
No.
What is the majority view today on intent as it relates to ademption?
A specific gift will adeem only if the testator intended the gift to fail.
If the testator did not intend for a specific gift to fail, the beneficiary is entitled to:
(a) any real property or tangible personal property (owned by testator at death) which the testator acquired as a replacement for the specific gift; OR
(b) a monetary devise equal to the value of the specific gift
Under the modern view of ademption, what is a beneficiary entitled to if a specific gift was destroyed prior to the testator’s death?
Any unpaid insurance recovery or other recovery for injury to the property
What is abatement?
Not giving effect to bequests in the will so that creditors’ claims against the estate can be satisfied.
Under what circumstances will abatement occur?
When there are more creditor’s claims against an estate than there are assets to cover all of the gifts made under the will.
Who always gets first priority to assets of an estate over beneficiaries?
Creditors of the estate
Absent provisions in the will, what is the order in which a testator’s property abates?
- Property passing by intestacy
- Residuary gifts
- General gifts
- Specific gifts
Must each category of property be fully abated before moving onto the next category?
Yes
How is abatement within each category calculated?
In proportion to the amounts of property each of the beneficiaries would have received.
What is the effect of a slayer statute?
An individual who feloniously and intentionally kills the decedent forfeits all benefits and entitlements to the decedent’s estate. If the decedent dies intestate, the estate passes as if the killer disclaimed her intestate share.
What must be shown for a slayer statute to preclude receipt of a bequest?
- Conviction (after all appeals exhausted) conclusive if a felonious and intentional killing, or
- Preponderance of the evidence proved during a probate or related court proceeding
Under modern precedent, when will a slayer statute NOT apply?
To a person acting as an agent under a durable health-care directive when withholding treatment to the decedent because withholding treatment is NOT considered to be the cause of death.
NOTE: states vary on this
What is a disclaimer?
When a person renounces their legal right to inheritance
What four requirements necessary for effective disclaimer?
Must:
- Be declared in writing
- Describe the interest or power disclaimed
- Be signed by the person making the disclaimer, AND
- Be delivered or filed.
Under CL, what is the time frame in which someone can disclaim?
“Within a reasonable time”
Some states require disclaimers be made within 9 months of (a) the death of the decedent, or (b) the vesting of a future interest
Under UPC, what is time frame in which disclaimer must be made?
Can be made at any time, so long as disclaimer is not barred
When is a person barred from disclaiming?
If he accepts or transfers the interest
What happens to a disclaimed interest?
It either:
- Passes according to any applicable terms of the will/trust; OR
- As if the person had predeceased the testator
What happens if a disclaimed gift passes as if the person had predeceased the testator?
The gift will lapse unless an anti-lapse statute is applicable
What is the effect of a final divorce decree on testamentary provisions to a former spouse?
All states: revokes any disposition or appointment of property made to the former spouse in a prior made will
All revoked provisions are treated as if former spouse had predeceased the testator
Does divorce affect any bequests or fiduciary appointments (i.e. power of appointment) in favor of the former spouse’s relatives?
Generally, such provisions will remain intact.
UPC: provisions are deemed to be revoked upon divorce