Gifts and Wills

Question 1

Donor

Answer 1

One who gives something without receiving consideration for the transfer

Question 2

Donee

Answer 2

Recipient of a gift

Question 3

Constructive delivery

Answer 3

Handing over a key or some other object that will provide access to the gift

Question 4

Symbolic delivery

Answer 4

Handing over something symbolic of property, such as a written instrument declating a gift of the property

Question 5

Actual delivery

Answer 5

Actually handing over the gift

Question 6

Gift causa mortis

Answer 6

A gift made in contemplation of death from some immediate harm or illness

Question 7

In what three scenarios does a gift causa mortis fail?

Answer 7

1. Doesn’t die
2. Dies from something that wasn’t in contemplation at the time of the gift
3. Real property not written in violation of statute of frauds

Question 8

Can a donor who does not die revalidate a gift causa mortis?

Answer 8

Yes, donor must physically take back the gift and then must physically give it back to donee

Question 9

What type of delivery is sufficient or insufficient for gift causa mortis?

Answer 9

Symbolic delivery is insufficient for gift causa mortis

Newman v. Bost: the housekeeper/girlfriend case

Question 10

What is an inter vivos gift?

Answer 10

A gift made between living persons

Question 11

Can an inter vivos gift be made through a life estate?

Answer 11

Yes, a valid inter vivos gift of chattel can be made where the donor has reserved a life estate in the chattel and the donee has never had physical possession before the donor’s death

Gruen v. Gruen: the wicked stepmother case

Question 12

What are the elements of a valid gift?

Answer 12

To be a valid gift, there must be intent, delivery, and acceptance.

Question 13

What is required for intent of a gift?

Answer 13

The intent must be to make a present transfer. The donor must give up some kind of rights to thr property. This can be satisfied by a future interest, such as a life estate, because some of the rights of the original owner are stripped.

Question 14

What is required for delivery of a gift?

Answer 14

Delivery can be satisfied by actual delivery, constructive delivery, or symbolic delivery. If the gift can be physically handed over, it must be, unless a situation where the owner has created a life estate in the item to be delivered at death.

Question 15

What is required for acceptance of a gift?

Answer 15

Acceptance can be verbal or by the donee’s conduct. Acceptance can be presumed for valuable items.

Question 16

Decedent

Answer 16

The deceased

Question 17

Will

Answer 17

An instrument or declaration by which one directs the disposition of one’s property after death

Question 18

Testator (testatrix)

Answer 18

The person who died who is making the will

Question 19

Testate (testacy)

Answer 19

died with a will

Question 19

Codicil

Answer 19

a supplement to a will that adds or deletes provisions or otherwise changes a will

Question 20

Intestate (intestacy)

Answer 20

Died without a will

Question 21

When does partial intestacy occur?

Answer 21

When a provision of the will is declared invalid or the will failed to cover all of the property

Question 21

Partial intestacy

Answer 21

When you died, only distributed part of the estate

Question 22

How can partial intestacy be avoided?

Answer 22

By adding a residual clause. “The rest, residue, and remainder of my estate goes to…” Specific, enumerated gifts go to who they’re supposed to go to, the rest goes to the named person in the residual clause

Question 23

Devise (verb)

Answer 23

To dispose of property by will

Question 24

Devise (noun)

Answer 24

A testamentary disposition of real or personal property

Question 25

Bequest (verb) and legacy (noun)

Answer 25

Means the same as devise, but was historically used for real property

Question 26

Devisee

Answer 26

A person designated under a will to receive a devise

Question 27

Heir

Answer 27

A person entitled to another person’s real property under intestate succession (includes the surviving spouse or the state)

Question 28

How does one qualify as an heir?

Answer 28

Must survive the decedent by 120 hours. An unborn child is treated as living at the time if, after birth, lives for 120 hours

Question 29

Negative will

Answer 29

A will with a provision expressly disinheriting an heir. Excludes or limits the rights of an individual or calss to success to property of the decedent that passes through intestate succession.

Question 30

Probate

Answer 30

The process of proving a will or having it declared valid and effective following the death of a testator

Question 31

Personal representative

Answer 31

An executor, administrator, or the like

Question 32

Estate

Answer 32

The property of the decedent

Question 33

Net estate or distributable estate

Answer 33

The gross estate less the deduction allowed

Question 34

Testamentary obsolescence

Answer 34

Occurs when there are intervening occurrences which render the will less adapted to the testator’s circumstances after a lapse of time occurs between the execution of the will and the testator’s death

Question 35

Non-probate estate assets: definition and examples

Answer 35

Don’t require probate court to pass to beneficiaries.
Examples: joint ownership and gifts causa mortis

Question 36

What are the two types of joint ownership?

Answer 36

1. Joint tenants with right of survivorship (assuming joint owner also survives the decedent): Equal rights to property between two or more people
2. Tenants by entirety (Assuming spouse survives decedent): when spouse dies, 100% of the title goes to surviving spouse

Question 37

What are two exampls of assets that are not part of the estate?

Answer 37

1. Inter vivos gifts
2. Irrevocable living trust (treated like a gift)

Question 38

What are the UPC requirements for a formal will? (3)

Answer 38

1. In writing
2. signed by testator or in testator’s name by another in the testator’s conscious presence and by testator’s direction
3. Either (a) two witnesses or (b) public notary

Question 39

What is a holographic will?

Answer 39

A valid will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting

Question 40

Under the UPC, who may be a witness?

Answer 40

Any individual competent to be a witness, including interested parties

Question 41

Advancements

Answer 41

Occur where a lifetime gift is made to someone. The gift is deducted from what else the donee would have recieved in the will.

Question 42

How does the UPC treat advancements?

Answer 42

There is a presumption against advancements. A lifetime gift is an advancement only if (a) the doneee acknowledges the gift as such or (b) the donor indicates such in contemporaneous writing.

Question 43

Waht is the traditional law of satisfaction?

Answer 43

Traditionally, the courts presumed that gifts of money from parents to children, after a will’s execution, are in satisfaction of any legacies under the will

Question 44

Ademption

Answer 44

The doctrine surrounding gifts of property no longer in an estate. Satisfaction is sometimes called “ademption by satisfaction”

Question 45

How does the UPC treat satisfaction?

Answer 45

Under the UPC, there is a presumption against satisfaction. If the donor wants a gift to be in satisfaction, such intent must be (1) a statement in the will itself, (2) writing by donor contemporaneous to the gift, or (3) a written statement by the donee acknowledging satisfaction of devise

Question 46

Ademption by extinction

Answer 46

Generally, a specific gift is adeemed (fails) if the testator does not own the specifically-devised property at death

Question 47

Guardianship exception to ademption

Answer 47

The beneficiary of adeemed property gets a general pecuniary gift equal to: (1) the net sale price of property sold by the testator’s guardian, (2) a condemnation award paid to testator’s guardian for the property’s taking, and (3) insurance proceeds received by testator’s guardian for damage to property.

Question 48

Classification of gifts (in order of abatement/failure)

Answer 48

1. Residuary: “everything else I own”
2. General: “$3,000 to Martha”
3. Demonstrative: Specific and general: to come from a specific source at first, but can also come out of general estate: “$6,000 rom my bank account, but if not enough, from my other funds”
4. Specific: Gift specifically identified: “My oak desk,” “my 100 shares of disney stock,” “my house on Retreat Lane in Maryville”

Question 49

When does lapse occur? What is it?

Answer 49

In lapse situations, the donee predeceases the donor, the donor doesn’t change the will, the gift then lapses, meaning the gift passes under the will’s residuary clause or intestacy, and the donor’s intent is not realized

Testator gives $100k to brother, residue to friend. Brother predeceases testator and leaves no issue. Gift lapses and passes under the residuary to friend.

Question 50

What are anti-lapse statutes?

Answer 50

Anti-lapse statutes provide that if a will is silent as to an alternative taker/devisee, and the gift is to lineal descendants (including grandparents, descendant of grandparent, or step-child of the testator), their descendants get the substitute devise (sort of like intestacy). If the devise has no surviving descendants, the common law rule of lapse applies.

Testator gives $100k to brother, residue to friend. Brother predeceases testator, leaving his son as survivor. The $100k goes to brother’s son.

Question 51

UPC expression of contrary intent

Answer 51

Under the UPC, words of survivorship such as “if he survives me,” or, “my surviving children,” are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of this section

Question 51

What is the common law and majority treatment of the doctrine of exoneration?

Answer 51

Encumbrances, such as mortgages, of property conveyed must be paid off by funds from the estate, not separately by the person who inherited the property. In other words, the new property owner is exonerated form the debts, which are the responsibility of the estate.

Question 52

What is the modern trend (minority) treatment of exoneration?

Answer 52

The modern trend is “default non-exoneration” the idea that mortgages and other encumbrances are owned by the inheritor of the property unless the will specifies otherwise. To qualify for exoneration, the will must specifically state that debts on the property in question are to be paid off from the estate.