Protections and Prohibitions of Transfers Flashcards
What is the Omitted Child Doctrine?
An omitted child will generally receive a share if the decedent failed to provide for the child born or adopted after execution of will.
Will generally receive an interstate share, unless:
1) Child was intentionally omitted on face of will
2) Testator had other children at time of execution, and left substantially all of estate to other parent of omitted child
3) Testator provided for the child outside of the will
What is a per stirpes distribution?
A form of distribution where the estate is divided into total number of children or issue surviving the testator.
They take equal shares.
When does a gift lapse?
If a beneficiary predeceased a testator, the gift will lapse and fall into the residuary estate if there is **alternative distribution.
When does anti-lapse apply?
Under California, gift will not lapse if the gift was meant to be too:
1) Kindred (blood related, not spouse)
2) Of the testator, their current/former spouse, or domestic partner
It will go to that kindred’s issue.
What is the doctrine of ademption by extinction?
Applies to specific bequests of property in the event that the subject matter is missing or destroyed at the time of transfer.
If it is missing or destroyed, the beneficiary takes nothing.
However, in California, courts often have ways to avoid exemption by considering the gift general or demonstrative, classifying it as inter vivos, etc.
What is a specific bequest of property?
Property that:
1) Can be distinguished with reasonable accuracy
2) From other property in owner’s estate
Look at testator’s intent!
What is the omitted spouse doctrine?
Omitted spouse is one omitted from a premarital will.
Will generally receive an interstate share, unless:
1) Omission was intentional as shown by will
2) Deceased spouse provided for omitted spouse outside the will
3) Omitted souse made a valid agreement and waived their right to shares
Generally, is extrinsic evidence admissible to interpret at will?
No, but only if the plain meaning of the will is clear.
Acts of Independnt Legal Significance
When the terms of a will are ambiguous, such ambiguities can be resolved by the court by referring to acts or documents executed during testator’s lifetime.
Make sure that such acts/documents were for non-testamentary motives!
What is ademption?
If a specific bequest of property is no longer part o T’s estate, it adeems.
California also finds a substantial change to the bequest to be an ademption.
A specific bequest will adeem only if consistent with T’s intent.
What is satisfaction?
Satisfaction occurs when a testator satisfies a devise from a will, in whole or in part, through an inter vivos transfer.
T must intent for the gift to be adeemed + satisfy, and must be evidenced by a contemporaneous writing signed by testator.
