Post-Will Changes

Question 1

Lapse

Answer 1

A gift fails if the beneficiary predeceases the testator (or is treated as not surviving the testator). The gift would be distributed either based on the terms of the will, based on an anti-lapse statute, a residuary clause or intestacy.

-applies to class gifts (i.e., only surviving class members take)

Question 2

Anti-Lapse Statutes

Answer 2

Anti-lapse statutes save a lapsed gift if the predeceasing beneficiary was in a specified degree of relationship to the testator and has surviving descendants. Those descendants take by substitution. The statute will apply unless a contrary provision appears in the will (words of survivorship do not negate application).

-can apply to class gifts

Question 3

Ademption

Answer 3

Ademption is when a gift fails because the property is no longer in the testator’s estate at the time of death. It applies only to specific gifts.
-Majority: if the property is not in the estate, the beneficiary takes nothing
-Exceptions:
-Some states allow beneficiary to receive replacement property if testator replaced gifted item with a similar item
-Some states allow beneficiary to receive remaining money owed by a purchaser of the gifted item
-Some states allow the beneficiary to receive proceeds of a sale of the gifted item

Question 4

Accessions

Answer 4

Stocks
-Common Law: increases produced by stock splits are included
-Modern Law: increases produced by splits or purchased by dividends

Appreciation/depreciation of specific gifts are irrelevant

Increases to gifts occurring after the testator’s death pass

Question 5

Pretermitted Children

Answer 5

Pretermitted child statutes provide shares for a child born or adopted after execution of the will. This applies as well to children the testator mistakenly believes to be dead.

The statute will not apply if the omission appears to be intentional or the testator provided for the child otherwise.

If there are other children who are provided for in the will, the pretermitted child is limited to the provisions made to those other children (i.e., the bequests to the children are reduced, but no other beneficiary’s bequest is reduced).

Question 6

Elective Share

Answer 6

Elective share statutes give a spouse an election to take a statutory share (usually 1/3 of the net probate estate) of the decedent’s estate in lieu of taking under the will.

Net estate = probate - expenses and creditor claims