Pg 15

Question 1

What kind of changes can happen between the time of creating a will and death?

Answer 1

• property can be added, destroyed, disappear, or it may have changed form
  – the people named in the will can die, new people can be born, the testator could get married or divorced, etc.

Question 2

What are the four types of gifts that can be given under a will?

Answer 2

– specific gifts
- general gifts
– residuary gifts
- demonstrative gifts

Question 3

If anything changes between the time that the will is made and the time the testator dies, there are specific statutory default rules depending on the type of property. What are the default rules if it is a specific gift?

Answer 3

The will speaks on death, so if a testator owned a named item at death, then that is what is given.

Question 4

What is a specific gift in a will?

Answer 4

This is a gift of a particular, identifiable piece of property. I.e.: “Give my green Ford Pinto“

Question 5

What is a general gift under a will?

Answer 5

Gift of a certain value without specifying what property in the estate will be used to satisfy it. Ie: “$1000 to A.“

Question 6

What are the default rules that apply to general gifts in a will?

Answer 6

These can be paid from the general assets. It doesn’t matter where the money comes from, as long as that person gets that amount. Ie: if the will says “$1000 to A“ and the only asset is a car, the car will be sold to raise the money to give it to A.

Question 7

If a general gift in a will is not clear, what do you do? I.e.: “Leave A a car“

Answer 7

If the estate is all cash, some of the money can be used to buy a car for A

Question 8

What is a residuary gift under a will?

Answer 8

An unspecified gift of whatever is left in the probate estate that hasn’t already been disposed of through specific or general gifts. I.e.: “Car to A, $1000 to B, residuary to C.“

Question 9

If a will says, “Car to A, $1000 to B, residuary to C“ and the estate only has a car and $5000, what happens?

Answer 9

A gets the car, B gets $1000, and C gets what is left, which is $4000.

Question 10

Who often takes the bulk of an estate?

Answer 10

The residuary beneficiary

Question 11

What is a demonstrative gift?

Answer 11

This is a general devise that is payable from a specific source (hybrid of specific and general gifts). If the specified source is insufficient, the devise is not adeemed, but is satisfied out of other testator property. This is seen as a recommendation for where to look first. I.e.: “$10,000 to A from my stock.“ If the testator has $20,000 in stock at his death, $10,000 is sold to give money to A. If the testator only has $5000 in stock, it is sold and $5000 would be taken from somewhere else to finish the $10,000 gift.

Question 12

What are the four types of changes that can happen to property between the time of creating a will and the death of the testator?

Answer 12

• satisfaction
  – ademption
  – abatement
  – exoneration

Question 13

What is satisfaction as a type of change in property?

Answer 13

Devisee of a specific gift under a will has already been given the gift after execution of the will but before the testator‘s death.

Question 14

In California, property is treated as a satisfaction and is deducted from the at-death share only if there is an affirmative showing of what?

Answer 14

One of these conditions:
– the will provides for deduction of a lifetime gift from an at-death transfer
– the transferor declares in a contemporaneous writing that the gift is in satisfaction of an at-death transfer
– the devisee acknowledges in writing that the gift is in satisfaction
– ademption by extinction

Question 15

Can satisfaction be done orally by either the transferor or the devisee?

Answer 15

No, in both cases it must be in writing

Question 16

What is ademption by extinction?

Answer 16

When the property that is given is the same property that is the subject of a specific gift to that person, then a specific gift was already given during the lifetime of the testator. So it no longer exists at the death of the testator

Question 17

What is ademption?

Answer 17

When a specific piece of property is promised in a will, but is no longer in the testator‘s estate at the time of his death because it was sold, destroyed, or exchanged for other property. If the will doesn’t say what to do, there are two approaches to deal with this.

Question 18

Ademption only applies to what type of gift?

Answer 18

Specific gifts, not to general, demonstrative, or residuary gifts

Question 19

What does adeem mean?

Answer 19

To take away/the gift fails

Question 20

What does the court usually do with regard to ademption?

Answer 20

It errs on the side of finding that a specific gift is not adeemed whenever possible

Question 21

What are the two major approaches to ademption?

Answer 21

• identity theory/majority approach

– intent theory/minority approach

Question 22

What is involved in the majority identity theory to ademption?

Answer 22

If a testator doesn’t own the specific gift at his death, he cannot gift it, so the devisee cannot get it because it has been adeemed/wiped out.

Question 23

What are the California exceptions to the identity theory of ademption?

Answer 23

These are situations when it is presumed that the testator wouldn’t want the beneficiary to miss out:
– sale of gifted property: beneficiary gets the balance of the purchase price that is owing
– eminent domain of gifted land: beneficiary gets the amount of the unpaid award
– destruction of gifted property: beneficiary gets unpaid proceeds from fire or insurance
– conservator sold or gave away property because testator lacked capacity: beneficiary gets the general pecuniary gift equal to the net sale of the property
– characterize disposition of property as a change in form

Question 24

What is involved in the California exception to the identity theory for ademption that involves the sale of gifted property?

Answer 24

If a beneficiary is slated to get a certain gift in the will, but that property has already been sold, then the beneficiary gets any balance of the purchase price that is owing from a purchaser to the testator at the time that the gift takes effect. I.e.: if the testator gives A his vacation home in the will, and then he sells it for $1 million, the identity theory says it’s no longer in the estate at death, so he cannot have it. But the California exception says that if there is a balance of the purchase price that hasn’t yet been paid to the testator‘s estate, then the beneficiary gets that balance

Question 25

What is involved in the California exception to the identity theory for ademption that regards eminent domain of gifted land?

Answer 25

If a beneficiary was slated to get a certain piece of land in the will, but the government took the land for a fair price before the testator died, the beneficiary can get the amount of any unpaid eminent domain awards.

Question 26

What is involved in a California exception to the identity theory for ademption that regards destruction of gifted property?

Answer 26

If a beneficiary was slated to get a certain piece of property in the testator‘s will, but that property was destroyed before the testator died, the beneficiary gets any unpaid proceeds at the time of the gift from fire or casualty insurance or other recovery for injury to the property.

Question 27

What is involved in the California exception to the identity theory for ademption that deals with a conservator selling or giving away property because the testator lacked capacity?

Answer 27

If the beneficiary was slated to get a certain piece of property under the will, but a conservator sold it or gave it away because the testator lacked capacity, then the beneficiary gets the general pecuniary gift that is equal to the net sale of the property.