Revocation by Change in Property Holdings (Ademption)

Question 1

Specific Devise

Answer 1

gift of particular item, something unique about it, testator has intent to give this particular thing. Real property=specific, antique car=specific

Question 2

General Devise

Answer 2

payable out of the general assets of the estate, nothing unique about it, like “100 shares of Microsoft to Bob”. Executor can either give 100 shares of Microsoft stock OR give the FMV

Question 3

Demonstrative devise

Answer 3

hybrid between general and specific gift: gift from a particular fund, if it isn’t enough, can get out of general property Example: “To A I leave $1000 from my bank account” (only has $900); the other 100 comes from general assets

Question 4

Residue Devise

Answer 4

All other property not specific in the will

Question 5

What is ademption by extinction Common Law?

Answer 5

refers to failure of a gift b/c the property no longer is in the testator’s estate at time of her death. applies ONLY to SPECIFIC DEVISES AND BEQUESTS

Question 6

Ademption by Extinction CA:

Answer 6

Look at intent to see if gift is general or specific, and intent again to look at if testator intended gift to fail.

Question 7

Examples of NO Ademption by Extinction in California

Answer 7

Securities changing form: Co. merges with another, the last stock doesn’t exist anymore BUT there is no ademption by extinction in CA b/c there was no intent by Testator.

2) If conservator sells off the assets
3) eminent domain proceeds after death.

Question 8

ademption by satisfaction

Answer 8

Testator gives beneficiary an inter vivos down payment on devise (Give $1000 in will, but later tell beneficiary “Here’s $100 out of the $1000). If we determine this was a “satisfaction”, beneficiary gets only $900 on death

Question 9

How to establish a satisfaction

Answer 9

1) will provides for a deduction of the inter vivos gift
2) testator writes in a contemporaneous writing that it’s a satisfaction
3) BENEFICIARY acknowledges the satisfaciton anytime in writing
4) the gift is the same property of the specific gift (this is ademption by satisfaction AND extinction).
IF beneficiary dies BEFORE testator, beneficiary’s issue get the deducted amount (the $900)

Question 10

Advancements

Answer 10

Same as Ademption by Satisfaction EXCEPT this has to do with testator dying intestate
BUT if beneficiary dies BEFORE testator, the issues get it as if there was no advancement

Question 11

Contracts

Answer 11

If a will devises property pursuant to a K, the cause of action begins at the moment testator dies unless he engages in fraudulent conduct that could permanently deprive devisee (like he promises to give them blackacre, but then starts selling blackacre). Can use extrinsic evidence to show there was a K IF ON THE FACE OF THE WILL IT MENTIONS A K.

Question 12

Spousal Property Protection

Answer 12

1) Testator can only dispose of 1/2 community property, quasi-community property

Question 13

Widow’s election

Answer 13

When testator tries to get rid of over 1/2 community property or quasi-community property, widow can choose the gift within the will, or renounce ALL rights to the will and keep their statutory right to the 1/2 of the property

Question 14

Illusory gifts of quasi-community property just before testator dies

Answer 14

This is ALLOWED, (give away half your quasi-community property to third party without consideration) because the widow only has an expectancy in the property, not a property RIGHT; this does NOT WORK if the widow elects the “widow’s election” then they get all of their proprety back.

Question 15

Killers

Answer 15

Considered “unworthy heirs” if feloniously and intentionally killed decedent. must have CONVICTION, in other cases probate court determines by PREPONDERANCE OF EVIDENCE. consequence= killer predeceases decedent, anti-lapse statute doesn’t apply. Killer does not take and issues don’t take.