Property 6—Conveyance by Will Flashcards
What is a will?
a will is a conveyance the is prepared and executed by the property owner during life, but which does not “speak” or operate until the date of the owners death.
Property > Conveyance by Will
When can a will be revoked or modified?
A will is ambulatory, meaning that it can be revoked or modified so long as the testator is alive.
Property > Conveyance by Will
When is a gift adeemed?
if property is specifically devised or bequeathed in the testator’s will, but the testator no longer owns that property at the time of death
Property > Conveyance by Will > Ademption
What is it mean for a gift to be adeemed?
Ademption means that the gift has failed and is not replaced by other property.
Property > Conveyance by Will > Ademption
Is ademption applicable to general devices?
No. Ademption does not apply unless the gift mentioned specific property.
Property>Conveyancing>Conveyance by will>Ademption>Not applicable to general devises
A specific devise or legacy is one that can be satisfied only by ________________.
the delivery of a particular item; it cannot be satisfied by money. (EX: A bequest of “$10,000,” or even of “$10,000 to be paid out of the sale of my IBM stock” cannot be adeemed.)
Property>Conveyancing>Conveyance by will>Ademption>Not applicable to general devises
What effect does the doctrine of equitable conversion have on a testator that entered into an enforceable contract of sale of property after making a specific devise of it by will? Further, does the traditional case law, Uniform Probate Code, or state statutes render a different result?
The doctrine holds that the testator’s interest is converted into personal property. Logically, an ademption has occurred, and the proceeds of sale when the closing occurs would not pass to the specific devisee of the property. The traditional case law agrees, but the Uniform Probate Code and statutes in many states have reversed this result. Then, when property subject to a specific devisee is placed under contract of sale before the decedent’s death, the proceeds of the sale will pass to the specific devisee.
Property>Conveyancing>Conveyance by will>Ademption>Not applicable to land under executory contract
In what situations do court usually not apply the doctrine of equitable conversion? What do courts do instead, in these instances?
If the decedent is unable to enter into the contract, and is instead it is entered into by a guardian attorney in fact, or other representative, courts usually do not apply the equitable doctrine, and they allow the proceeds of the sale to pass to the specific devisee.
Property>Conveyancing>Conveyance by will>Ademption>Not applicable to land under executory contract>No ademption if decedent incompetent when contract formed
Does ademption apply when property is damaged or destroyed before the testator’s death but the casualty insurance proceeds are not paid until after the testator’s death? In which similar situation would the same result come about?
Not usually. The beneficiary of the specific bequest takes the insurance proceeds. Similarly, ademption usually does not apply to property condemned by the government when the taking was before death but the condemnation award was paid after death.
Property>Conveyancing>Conveyance by will>Ademption>Other proceeds not subject to ademption
What happens if the testator specifically devises property and then sells or gives away a part of that property?
Only that portion is adeemed; the remainder passes to the devisee.
Property>Conveyancing>Conveyance by will>Ademption>Partial ademption
What is exoneration?
At common law and in some states today if a testator makes a specific devise of real estate that is subject to a mortgage or other lien, the devisee is entitles to have the land “exonerated” by the payment of the lien from the testator’s residuary estate. Thus, the property will pass to the devisee free of encumbrances. However, a majority of states have, by statute, abolished the exoneration doctrine. In these states, the property will pass to the devisee subject to a preexisting mortgage or other lien unless the will expressly provides for a payoff of the lien.
Property>Conveyance by Will>Exoneration
What are Lapse and Anti-Lapse Statutes?
a lapse occurs when the beneficiary of a gift in a will dies before the testator. Under the common law, if a lapse occurred the gift was void. However, nearly all states now have statutes that prevent lapse by permitting the gift to pass to the predeceasing beneficiary’s living descendants under certain circumstances. These statute vary as to the scope of beneficiaries covered.
Property>Conveyance by Will>Lapse and Anti-Lapse Statutes
What is the degree of relationship to the testator?
Many of the anti-lapse statutes apply only when the named beneficiary is a descendant of the testator. Others apply if the beneficiary is more remotely related, such as a descendant of the testator’s grandparent. Others apply to any relative, and still others apply to any beneficiary at all.
Property>Conveyance by Will>Lapse and Anti-Lapse Statutes>Degree of Relationship to Testator
When descendants are substituted?
the anti-lapse statute does not save the gift for the predeceasing beneficiary’s estate; rather it substitutes the beneficiary’s descendants for the beneficiary. Thus, property will never pass under the anti-lapse statute to a predeceasing beneficiary’s spouse. The property passes to the beneficiary’s descendants under the method of distribution (e.g., per stirpes, per capita) used by the state’s intestate succession (inheritance) statute.
Property>Conveyance by Will>Lapse and Anti-Lapse Statutes>Degree of Relationship to Testator>Descendants are Substituted
How do Anti-Lapse Statutes apply to class gifts?
Ordinarily, if a gift is made by will to a class, and some members of the class dies before the testator, the gift is given to the surviving members of the class. However, if class members within the coverage of an anti-lapse statute predecease the testator leaving surviving issue, the statute will apply, and the issue will take the deceased class member’s share of the gift.
Property> Conveyances> Conveyance By Will> Lapse and Anti-Lapse Statutes> Application to Class Gifts
