E. Construction Issues

Question 1

How may dispositions be made if Beneficiary predeceases Testator?*

Answer 1

Disposition to Issue/Sibling (Beneficiary) (Anti-Lapse Statute, ALS)

• Disposition passes to Beneficiary’s Issue
• Will made before 31 Aug 1992 => Disposition per stirpes
• Will made after 31 Aug 1992 => Disposition by representation

Class gifts to Issue
- Disposition passes by representation

Disposition to at least 2 residuary beneficiaries

• Disposition passes to other residuary beneficiaries
• UNLESS stated otherwise
• UNLESS ALS applies to lapsed portion

Question 2

When is property as part of a specific disposition adeemed (NOT part of estate)?*

Answer 2

Property is NO longer part of estate at T’s death

Conveyance/Settlement is NOT wholly consistent with disposition

UNLESS Property changes form (NOT wholly divested)

Question 3

When is Beneficiary entitled to insurance if property is adeemed?

Answer 3

1) Property is damaged/destroyed before Decedent’s death

2) Insurance company reimburses Executor after Decedent’s death

Question 4

What is required for Testator to make Advancement (lifetime gift) to Beneficiary?*

Answer 4

1) In writing
2) At same time as gift
3) Signed by Decedent/Acknowledged by Donee (Donor intends gift as advancement)
4) Decedent intends gift to be substituted for Donee’s share of estate

FYI ALS NOT applicable

Question 5

What is required for disposition to witness-beneficiary to be valid?*

Answer 5

1) 2 other NON-interested attesting Ws able to testify will’s validity
2) Interested W may be called to testify (if he remains competent)

Question 6

What is interested W entitled to if also intestate distributee?*

Answer 6

‘Lesser’ of his intestate share/disposition

Question 7

What is required for disclaimer/refusal of gift (renounce interest in Decedent’s estate)?*

Answer 7

1) In writing
2) Signed + Acknowledged before notary public

3) Separate affidavit
- NO consideration received by Disclaiming party

4) Renounced within 9 months of transfer

FYI Disclaimer is NOT revocable

Question 8

What is the order of Abatement?*

Answer 8

1) Expenses including;
- Funeral expenses
- Debts
- Taxes
- Admin expenses

2) Estate
- Distributive shares in property NOT disposed of by will
- Residuary dispositions
- General dispositions
- Demonstrative dispositions
- Specific dispositions
- Dispositions to Decedent’s spouse (eligible for estate tax marital deduction)

UNLESS Testator provides otherwise

Question 9

What is the difference between ‘by representation’ and ‘per stirpes’?*

Answer 9

By representation

• Issues take equal share with other survivors ‘at their level’
• Children A, B are predeceased
• Child C is predeceased with grandchildren G1, G2
• Child D is predeceased with grandchild G3
• 1/4 => A
• 1/4 => B
• 1/2 => G1 (1/6), G2 (1/6), G3 (1/6)

Per stirpes

• Issues take Deceased’s Issue’s share
• 1/4 => A
• 1/4 => B
• 1/4 => C => G1 (1/8), G2 (1/8)
• 1/4 => D => G3

Question 10

Who may be included in dispositions made to ‘Issue’?*

Answer 10

Adopted children

• Issues of Adoptive parents (NOT Biological parents)
• UNLESS stated otherwise
• UNLESS Testator is Issue’s grandparent/descendant of grandparent + Adoptive parent is stepparent/grandparent/descendant of grandparent

Genetic children

Non-marital children
- Father’s paternity required

Posthumous children

• Conceived before Genetic Parent’s death
• Born after Genetic Parent’s death