Testate Sucession (Construe) Flashcards
Types of devises
- Specific
- Demonstrative
- General
- Residue
Specific Devise
a gift of realty/personalty that you can point to. (i.e. Blackacre, specific vehicle, “MY”)
Demonstrative Devise
a gift of a general nature coming from a particular source. (i.e. 100k to A from the sale of my house, doesn’t matter which dollar bills).
General devise
a gift that is payable out of the general assets of the estate. Doesn’t have to be from a particular assets (i.e. cash amounts).
Residuary Dispositions
All thats left
Ademption by extinction (changes in property after will execution)
can only occur w/ a specific devise. If property of like character then can be deemed a replacement. If property was merely moved, then its not extinct.
Insured Property 6 month rule
If w/n 6 months before T’s death. B may either accept accrue and unpaid insurance proceeds OR amount that had actually been paid out.
Lost/stolen/destroyed w/n 6 months of death
If this happened w/n 6 months of death AND prop was covered by ins, the B is entitled to receive:
- damaged prop
- condemned prop
Specific gifts of securities “my”: increase in value
entitled to any increase in value that is the result of actions taken by the corp entity.
Specific gifts of securities “my”: Stock split or merger/sale of the corp.
The beneficiary would receive any shares acquired through a stock split, or any shares of another entity received as a result of a merger or sale of the original corporation.
Specific gifts of securities “my”: General Gift
If the bequest is general, the beneficiary may or may not receive the value of the stock depending on whether the testator intended to refer to particular stock owned or to shares that might be purchased by the executor after the testator’s death.
Abatement
if the assets of the T’s estate are insufficient, after payments of all claims against the estate, to satisfy all the bequests or devises, the b’s shares abate.
If the will does not say how to pay for abatement, the shares of distribution will abate in this order:
- Residue
- General
- Demonstrative
- Specific
Exoneration doctrine
If realty passes to a B by will or intestacy, any personalty in the estate is liable for the satisfaction of liens on that realty, unless the will specifically provides otherwise.
When class changes after will execution
Classes can open for new children/members.
Rule of convenience
a class closes, if not stated to the contrary, when any member thereof can demand an immediate share “call for a distribution”.
If a class gift is immediate, then
if closes at T’s death
If class gift is postponed, then
class will remain open until the time set for distribution.
Lapse***
Occurs when a disposition fails b/c the B predeceased the T. Will either lapse into residue and if residue lapses then it will pass through intestate succession.
Anti-lapse Statute
A lapse gift will be saved where the B has left descendants.
Exception: if T specifically says the statute doesn’t apply.
Lapse analysis
- if the PDB was closely enough related to the T, and
- the PDB left surviving descendents of their own, then
- those surviving descendants will take the gift unless the will expresses to the contrary.
Slayer Act
any person who participates in any way in the felonious and intentional killing of any other person may not acquire any property by will or intestacy or receive any benefit as a result of the death of the decedent.
For GA: murder, felony murder, and voluntary manslaughter.
Doesn’t apply if killing was accidental.
Disclaim a gift
Disclaimer must be unqualified and irrevocable, filed before the B has accepted the gift, once the B has received any benefits of the gift then it can’t be renounced.
Must be done: in writing, w/n 9 months of T’s death, if a minor then they have until 21 and then they have 9 months.
