Distribution Issues

Question 1

Specific Gift

Answer 1

A gift of specific, identifiable property

Question 2

Special rules for Stock

Answer 2

1. Stock splits follow the original stock and are distributed to the beneficiary of the original stock.
2. Stock dividends: Courts are split on whether or not stock dividends are given to the beneficiary. Generally, the court will look at the testator’s intent and whether he still owned the stocks at the time of his death, resulting in the stocks at the time of his death, resulting in the dividend often going to the beneficiary.

Question 3

General Gift

Answer 3

A gift from the general assets of the estate and does not include specific property.

Question 4

Demonstrative Gift

Answer 4

A general gift that specifies the property or a particular fund from which the gift should be made.

Question 5

Residuary Gift

Answer 5

is what remains of the estate after other gifts have been satisfied.

Question 6

Ademption

Answer 6

Applies where the property has changed form from that identified in the will.

Question 7

Ademption as Applied to Specific Gift

Answer 7

A specific gift adeems by extinction if the specific item in the will is not part of the estate at the time of the testator’s death. The specific gift is void and that purported devisee takes nothing.

a. Courts will look at testator’s intent to determine if it adeems.
b. The beneficiary is entitled to a general pecuniary gift of equal value where the specific gift involved securities that changed form, a conservator that sold the property, or eminent domain.

Question 8

A gift adeems by satisfaction…

Answer 8

if the testator’s will provides for deduction of a lifetime gift, the testator or the beneficiary declare in writing that the gift is satisfied, or the same property is given to the beneficiary during his lifetime.

Question 9

Abatement

Answer 9

occurs when gifts are reduced to enable the estate to pay all debts and legacies that it would otherwise be unable to pay

Question 10

Order of Gift Abatement

Answer 10

a. Property not disposed by the will
b. Residuary gifts
c. General Gifts to nonrelatives
d. General Gifts to relatives
e. Specific Gifts to nonrelatives
f. Specific Gifts to Relatives

Question 11

Exoneration

Answer 11

applies when a gift of property is made that is subject to an encumbrance, such as a loan, and the will requires the encumbrance to be paid off such that the devisee takes the property fee and clear of the mortgage.

1. General Rules of Abatement Apply
2. Where a will requires that a gift of specific property be exonerated from a mortgage, a specific gift of other property cannot be abated for the purpose of exonerating the encumbered property.

Question 12

When do lapse and antilapse rules apply?

Answer 12

They apply when the persons taking under a will are no longer alive at the time of the testator’s death.

Question 13

Lapse

Answer 13

Traditionally and in some jurisdictions, when a beneficiary predeceased the testator, the gift to the beneficiary lapsed and fell into the residue, or was distributed via intestate succession if there was no residue.

Question 14

Antilapse

Answer 14

Modernly and in California, when a beneficiary predeceased the testator, the issue of the beneficiary take in his place, thus avoiding the lapse of the gift, unless a contrary intention appears in the will.
Applies to kindred only. Issue will take per capita if they are the same degree of relation or per capita with representation if of a more remote degree.

Question 15

Simultaneous death

Answer 15

If both the testator and the beneficiary due simultaneously and it cannot be determined by clear and convincing evidence that the beneficiary died first, then the beneficiary is determined to have predeceased the testator and the devise lapses, unless the antilapse applies.

Question 16

Widow’s election

Answer 16

A widow’s election allows a widower or a surviving domestic partner to elect to keep his share devised under the decedent spouse’s will or to take his statutory share, which is his half of the community property and the quasi-community property, if the decedent spouse attempted to dispose of more than half of the CP and QCP.

Question 17

Property transfers

Answer 17

A surviving spouse or domestic partner can set aside transfers of property or interests of CP and QCP made by the decedent spouse during marriage, to the extent of half if the transferee has retained the property, or, if the transferee has not retained the property, the surviving spouse can obtain half of the proceeds or value at the time of transfer.

Question 18

No Contest Clause

Answer 18

A no contest clause in a will penalizes a beneficiary if he contests the instrument and will only be enforced if it is a direct contest brought without probable cause on the grounds of forgery, lack of due execution, lack of capacity, menace, duress, fraud, undue influence, revocation, or disqualification of a beneficiary in a fiduciary relationship to the testator, or if specifically mentioned in the no-contest clause.

Question 19

Killer exception

Answer 19

Intentional and felonious killers do not take under the will or by intestacy, and are treated as having predeceased the testator and antilapse provisions do not apply.

Question 20

Ademption by Extinction in California

Answer 20

There is no ademption by extinction in CA in the following situations. The common thread is the testator did not intend the gift to fail:

1. Securities Changing form
2. Conservator sells off assets
3. Eminent domain award, casualty award, or installment sale of property in which testator holds the deed of trust as security of the sale.
4. In other situations: Try and classify the gift as general, and failing that try to trace.

Question 21

Ademption by Satisfaction established by:

Answer 21

1. Will provides for deduction of the inter vivos gift
2. T declares in a contemporaneous writing that the gift is a satisfaction.
3. Beneficiary acknowledges in a writing (at any time) the satisfaction
4. The property is given in the satisfaction is at the same property that is the subject of a specific gift to the beneficiary. (Ademption by satisfaction and extinction)

Question 22

What if beneficiary receives a satisfaction but predeceases the testator?

Answer 22

Rule: Where the issue of the predeceased beneficiary takes the devise under the anti-lapse statute, the issue of the predeceased beneficiary is treated as if he or she had received the satisfaction, unless testator’s will or contemporaneous writing states otherwise.

Question 23

What if the heir-apparent receives an advancement but predeceases the intestate?

Answer 23

1. The issue of heir apparent is not treated as having received an advancement, unless the advancement provides otherwise
2. This is the opposite of a satisfaction.

Question 24

Requirements of a Contract to NOT Revoke a Will

Answer 24

1. The will or other instrument (e.g., a trust) states the material provisions of the contract
2. There is an express reference in the will or other instrument, i.e. trust to a K.
3. There is a writing signed by the decedent evidencing a K
4. There is clear and convincing evidence of an agreement between decedent and promisee
5. There is clear and convincing evidence of an agreement between decedent and 3rd person for the benefit of claimant that is enforceable in equity.