UPC

Question 1

Section 2–803.Effect of Homicide on Intestate Succession, Wills, Trusts, Joint Assets, Life Insurance, and Beneficiary Designations

Definitions

Answer 1

(1)“Disposition or appointment of property” includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument.

(2)“Governing instrument” means a governing instrument executed by the decedent.

(3)“Revocable,” with respect to a disposition, appointment, provision, or nomination, means one under which the decedent, at the time of or immediately before death, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of the killer, whether or not the decedent was then empowered to designate himself [or herself] in place of his [or her] killer and or the decedent then had capacity to exercise the power.

Question 2

Section 2–803.Effect of Homicide on Intestate Succession, Wills, Trusts, Joint Assets, Life Insurance, and Beneficiary Designations

Forfeiture of Statutory Benefits

Answer 2

An individual who feloniously and intentionally kills the decedent forfeits all benefits under this Article with respect to the decedent’s estate, including an intestate share, an elective share, an omitted spouse’s or child’s share, a homestead allowance, exempt property, and a family allowance. If the decedent died intestate, the decedent’s intestate estate passes as if the killer disclaimed his [or her] intestate share.

Question 3

Section 2–803.Effect of Homicide on Intestate Succession, Wills, Trusts, Joint Assets, Life Insurance, and Beneficiary Designations

Revocation of Benefits Under Governing Instrument. The felonious and intentional killing of the decedent

Answer 3

(1) revokes any revocable (i) disposition or appointment of property made by the decedent to the killer in a governing instrument, (ii) provision in a governing instrument conferring a general or nongeneral power of appointment on the killer, and (iii) nomination of the killer in a governing instrument, nominating or appointing the killer to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, or agent; and

(2) severs the interests of the decedent and killer in property held by them at the time of the killing as joint tenants with the right of survivorship [or as community property with the right of survivorship], transforming the interests of the decedent and killer into tenancies in common.

Question 4

Section 2–803.Effect of Homicide on Intestate Succession, Wills, Trusts, Joint Assets, Life Insurance, and Beneficiary Designations

Effect of Revocation

Answer 4

Provisions of a governing instrument are given effect as if the killer disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the killer predeceased the decedent.

Question 5

Section 2–803.Effect of Homicide on Intestate Succession, Wills, Trusts, Joint Assets, Life Insurance, and Beneficiary Designations

Wrongful Acquisition of Property

Answer 5

A wrongful acquisition of property or interest by a killer not covered by this section must be treated in accordance with the principle that a killer cannot profit from his [or her] wrong.

Question 6

Section 2–803.Effect of Homicide on Intestate Succession, Wills, Trusts, Joint Assets, Life Insurance, and Beneficiary Designations

Felonious and Intentional Killing; How Determined.

Answer 6

After all right to appeal has been exhausted, a judgment of conviction establishing criminal accountability for the felonious and intentional killing of the decedent conclusively establishes the convicted individual as the decedent’s killer for purposes of this section. In the absence of a conviction, the court, upon the petition of an interested person, must determine whether, under the preponderance of evidence standard, the individual would be found criminally accountable for the felonious and intentional killing of the decedent. If the court determines that, under that standard, the individual would be found criminally accountable for the felonious and intentional killing of the decedent, the determination conclusively establishes that individual as the decedent’s killer for purposes of this section.

Question 7

Section 2–102.Share of Spouse

Answer 7

The intestate share of a decedent’s surviving spouse is:

(1) the entire intestate estate if:

(i) no descendant or parent of the decedent survives the decedent; or

(ii) all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;

(2) the first [$300,000]1, plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent;

(3) the first [$225,000], plus one-half of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent;

(4) the first [$150,000], plus one-half of any balance of the intestate estate, if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse.

Question 8

Section 2–103.Share of Heirs other than Surviving Spouse

Answer 8

(a) Any part of the interstate estate not passing to a decedent’s surviving spouse under Section 2–102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals who survive the decedent:

(1) to the decedent’s descendants by representation

Question 9

Section 2–106.Representation

Definitions

Answer 9

(1) ‘Deceased descendant,’ ‘deceased parent,’ or ‘deceased grandparent’ means a descendant, parent, or grandparent who either predeceased the decedent or is deemed to have predeceased the decedent under Section 2–104.

(2) ‘Surviving descendant’ means a descendant who neither predeceased the decedent nor is deemed to have predeceased the decedent under Section 2–104.

Question 10

Section 2–106.Representation

Decedent’s Descendants

Answer 10

(b) If, under Section 2–103(1), a decedent’s intestate estate or a part thereof passes ‘by representation’ to the decedent’s descendants, the estate or part thereof is divided into as many equal shares as there are (i) surviving descendants in the generation nearest to the decedent which contains one or more surviving descendants and (ii) deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.

Question 11

Section 2–106.Representation

Descendants of Parents or Grandparents

Answer 11

(c) If, under Section 2–103(3) or (4), a decedent’s intestate estate or a part thereof passes ‘by representation’ to the descendants of the decedent’s deceased parents or either of them or to the descendants of the decedent’s deceased paternal or maternal grandparents or either of them, the estate or part thereof is divided into as many equal shares as there are (i) surviving descendants in the generation nearest the deceased parents or either of them, or the deceased grandparents or either of them, that contains one or more surviving descendants and (ii) deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.

Question 12

Section 2–118.Adoptee and Adoptee’s Adoptive Parent or Parents

Parent-Child Relationship Between Adoptee and Adoptive Parent or Parents.

Answer 12

A parent-child relationship exists between an adoptee and the adoptee’s adoptive parent or parents.

Question 13

Section 2–119. Adoptee and Adoptee’s Genetic Parents

Stepchild Adopted by Stepparent

Answer 13

A parent-child relationship exists between an individual who is adopted by the spouse of either genetic parent and:

(1) the genetic parent whose spouse adopted the individual; and

(2) the other genetic parent, but only for the purpose of the right of the adoptee or a descendant of the adoptee to inherit from or through the other genetic parent.

Question 14

Section 2–119. Adoptee and Adoptee’s Genetic Parents

Individual Adopted by Relative of Genetic Parent

Answer 14

A parent-child relationship exists between both genetic parents and an individual who is adopted by a relative of a genetic parent, or by the spouse or surviving spouse of a relative of a genetic parent, but only for the purpose of the right of the adoptee or a descendant of the adoptee to inherit from or through either genetic parent.

Question 15

Section 2–119. Adoptee and Adoptee’s Genetic Parents

Individual Adopted after Death of Both Genetic Parents

Answer 15

A parent-child relationship exists between both genetic parents and an individual who is adopted after the death of both genetic parents, but only for the purpose of the right of the adoptee or a descendant of the adoptee to inherit through either genetic parent.

Question 16

Section 2–119. Adoptee and Adoptee’s Genetic Parents

Child of Assisted Reproduction or Gestational Child Who Is Subsequently Adopted

Answer 16

If, after a parent-child relationship is established between a child of assisted reproduction and a parent or parents under Section 2–120 or between a gestational child and a parent or parents under Section 2–121, the child is adopted by another or others, the child’s parent or parents under Section 2–120 or 2–121 are treated as the child’s genetic parent or parents for the purpose of this section.

Question 17

Section 2–104.Requirement of Survival by 120 Hours; Individual in Gestation

Requirement of Survival by 120 Hours; Individual in Gestation

Answer 17

For purposes of intestate succession, homestead allowance, and exempt property, and except as otherwise provided in subsection (b), the following rules apply:

(1) An individual born before a decedent’s death who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent. If it is not established by clear and convincing evidence that an individual born before the decedent’s death survived the decedent by 120 hours, it is deemed that the individual failed to survive for the required period.

(2) An individual in gestation at a decedent’s death is deemed to be living at the decedent’s death if the individual lives 120 hours after birth. If it is not established by clear and convincing evidence that an individual in gestation at the decedent’s death lived 120 hours after birth, it is deemed that the individual failed to survive for the required period.

Question 18

Section 2–109.Advancements

Answer 18

(a) If an individual dies intestate as to all or a portion of his [or her] estate, property the decedent gave during the decedent’s lifetime to an individual who, at the decedent’s death, is an heir is treated as an advancement against the heir’s intestate share only if (i) the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement or (ii) the decedent’s contemporaneous writing or the heir’s written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent’s intestate estate.

(b) For purposes of subsection (a), property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of the decedent’s death, whichever first occurs.

(c) If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the division and distribution of the decedent’s intestate estate, unless the decedent’s contemporaneous writing provides otherwise.

Question 19

Section 2–202.Elective Share

Elective-Share Amount

Answer 19

The surviving spouse of a decedent who dies domiciled in this State has a right of election, under the limitations and conditions stated in this Part, to take an elective share amount equal to 50 percent of the value of the marital-property portion of the augmented estate.

Question 20

Section 2–202.Elective Share

Supplemental Elective-Share Amount

Answer 20

If the sum of the amounts described in Sections 2–207, 2–209(a)(1), and that part of the elective-share amount payable from the decedent’s net probate estate and nonprobate transfers to others under Section 2–209(c) and (d) is less than [$75,000], the surviving spouse is entitled to a supplemental elective-share amount equal to [$75,000], minus the sum of the amounts described in those sections. The supplemental elective-share amount is payable from the decedent’s net probate estate and from recipients of the decedent’s nonprobate transfers to others in the order of priority set forth in Section 2–209(c) and (d).

Question 21

Section 2–202.Elective Share

Effect of Election on Statutory Benefits

Answer 21

If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse’s homestead allowance, exempt property, and family allowance, if any, are not charged against but are in addition to the elective-share and supplemental elective-share amounts.

Question 22

Section 2–202.Elective Share

Non-Domiciliary

Answer 22

The right, if any, of the surviving spouse of a decedent who dies domiciled outside this State to take an elective share in property in this State is governed by the law of the decedent’s domicile at death.

Question 23

Section 2–203.Composition of the Augmented Estate; Marital Property Portion

Answer 23

(a) Subject to Section 2–208, the value of the augmented estate, to the extent provided in Sections 2–204, 2–205, 2–206, and 2–207, consists of the sum of the values of all property, whether real or personal, movable or immovable, tangible or intangible, wherever situated, that constitute:

(1) the decedent’s net probate estate;

(2) the decedent’s nonprobate transfers to others;

(3) the decedent’s nonprobate transfers to the surviving spouse; and

(4) the surviving spouse’s property and nonprobate transfers to others.

Question 24

Section 2–203.Composition of the Augmented Estate; Marital Property Portion

Answer 24

(b) The value of the marital-property portion of the augmented estate consists of the sum of the values of the four components of the augmented estate as determined under subsection (a) multiplied by the following percentage:

Less than 1 year3%

1 year but less than 2 years6%

2 years but less than 3 years12%

3 years but less than 4 years18%

4 years but less than 5 years24%

5 years but less than 6 years30%

6 years but less than 7 years36%

7 years but less than 8 years42%

8 years but less than 9 years48%

9 years but less than 10 years54%

10 years but less than 11 years60%

11 years but less than 12 years68%

12 years but less than 13 years76%

13 years but less than 14 years84%

14 years but less than 15 years92%

15 years or more100%

Question 25

Section 2–213.Waiver of Right to Elect and of Other Rights

Answer 25

(a) The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property, and family allowance, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse.

(b) A surviving spouse’s waiver is not enforceable if the surviving spouse proves that:

(1) he [or she] did not execute the waiver voluntarily; or

(2) the waiver was unconscionable when it was executed and, before execution of the waiver, he [or she]:

(A) was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent;

(B) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided; and

(C) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent.

(c) An issue of unconscionability of a waiver is for decision by the court as a matter of law.

(d) Unless it provides to the contrary, a waiver of “all rights,” or equivalent language, in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights of elective share, homestead allowance, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to him [or her] from the other by intestate succession or by virtue of any will executed before the waiver or property settlement.

Question 26

Section 2–402.Homestead Allowance

Answer 26

A decedent’s surviving spouse is entitled to a homestead allowance of [$22,500]. If there is no surviving spouse, each minor child and each dependent child of the decedent is entitled to a homestead allowance amounting to [$22,500] divided by the number of minor and dependent children of the decedent. The homestead allowance is exempt from and has priority over all claims against the estate. Homestead allowance is in addition to any share passing to the surviving spouse or minor or dependent child by the will of the decedent, unless otherwise provided, by intestate succession, or by way of elective share.

Question 27

Section 2–403.Exempt Property

Answer 27

In addition to the homestead allowance, the decedent’s surviving spouse is entitled from the estate to a value, not exceeding $15,000 in excess of any security interests therein, in household furniture, automobiles, furnishings, appliances, and personal effects. If there is no
surviving spouse, the decedent’s children are entitled jointly to the same value. If encumbered chattels are selected and the value in excess of security interests, plus that of other exempt property, is less than $15,000, or if there is not $15,000 worth of exempt property in the estate, the spouse or children are entitled to other assets of the estate, if any, to the extent necessary to make up the $15,000 value. Rights to exempt property and assets needed to make up a deficiency of exempt property have priority over all claims against the estate, but the right to any assets to make up a deficiency of exempt property abates as necessary to permit earlier payment of homestead allowance and family allowance. These rights are in addition to any benefit or share passing to the surviving spouse or children by the decedent’s will, unless otherwise provided, by intestate succession, or by way of elective share.

Question 28

Section 2–301.Entitlement of Spouse; Premarital Will

Answer 28

(a) If a testator’s surviving spouse married the testator after the testator executed his [or her] will, the surviving spouse is entitled to receive, as an intestate share, no less than the value of the share of the estate he [or she] would have received if the testator had died intestate as to that portion of the testator’s estate, if any, that neither is devised to a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse nor is devised to a descendant of such a child or passes under Sections 2–603 or 2–604 to such a child or to a descendant of such a child, unless:

(1) it appears from the will or other evidence that the will was made in contemplation of the testator’s marriage to the surviving spouse;

(2) the will expresses the intention that it is to be effective notwithstanding any subsequent marriage; or

(3) the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator’s statements or is reasonably inferred from the amount of the transfer or other evidence.

(b) In satisfying the share provided by this section, devises made by the will to the testator’s surviving spouse, if any, are applied first, and other devises, other than a devise to a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse or a devise or substitute gift under sections 2–603 or 2–604 to a descendant of such a child, abate as provided in section 3–902.

Question 29

Section 2–302.Omitted Children

Answer 29

(a) Except as provided in subsection (b), if a testator fails to provide in his [or her] will for any of his [or her] children born or adopted after the execution of the will, the omitted after-born or after-adopted child receives a share in the estate as follows:

(1) If the testator had no child living when he [or she] executed the will, an omitted after-born or after-adopted child receives a share in the estate equal in value to that which the child would have received had the testator died intestate, unless the will devised all or substantially all of the estate to the other parent of the omitted child and that other parent survives the testator and is entitled to take under the will.

(2) If the testator had one or more children living when he [or she] executed the will, and the will devised property or an interest in property to one or more of the then-living children, an omitted after-born or after-adopted child is entitled to share in the testator’s estate as follows:

(A) The portion of the testator’s estate in which the omitted after-born or after-adopted child is entitled to share is limited to devises made to the testator’s then-living children under the will.

(B) The omitted after-born or after-adopted child is entitled to receive the share of the testator’s estate, as limited in subparagraph (i), that the child would have received had the testator included all omitted after-born and after-adopted children with the children to whom devises were made under the will and had given an equal share of the estate to each child.

(C) To the extent feasible, the interest granted an omitted after-born or after-adopted child under this section must be of the same character, whether equitable or legal,
228
present or future, as that devised to the testator’s then-living children under the will.

(D) In satisfying a share provided by this paragraph, devises to the testator’s children who were living when the will was executed abate ratably. In abating the devises of the then-living children, the court shall preserve to the maximum extent possible the character of the testamentary plan adopted by the testator.

(b) Neither subsection (a)(1) nor subsection (a)(2) applies if:

(1) it appears from the will that the omission was intentional; or

(2) the testator provided for the omitted after-born or after-adopted child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator’s statements or is reasonably inferred from the amount of the transfer or other evidence.

(c) If at the time of execution of the will the testator fails to provide in his [or her] will for a living child solely because he [or she] believes the child to be dead, the child is entitled to share in the estate as if the child were an omitted after-born or after-adopted child.

(d) In satisfying a share provided by subsection (a)(1), devises made by the will abate under section 3–902.

Question 30

Section 2–502.Execution; Witnessed Wills; Holographic Wills

Witnessed or Notarized Wills

Answer 30

Except as otherwise provided in subsection (b) and in Sections 2–503, 2–506, and 2–513, a will must be:

(1)in writing;

(2)signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction; and

(3)either:

(A)signed by at least two individuals, each of whom signed within a reasonable time after the individual witnessed either the signing of the will as described in paragraph (2) or the testator’s acknowledgment of that signature or acknowledgment of the will; or

(B)acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments.

Question 31

Section 2–502.Execution; Witnessed Wills; Holographic Wills

Holographic Wills

Answer 31

A will that does not comply with subsection (a) is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting.

Question 32

Section 2–502.Execution; Witnessed Wills; Holographic Wills

Extrinsic Evidence.

Answer 32

Intent that a document constitute the testator’s will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator’s handwriting.

Question 33

Section 2–510.Incorporation by Reference

Answer 33

A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.

Question 34

Section 2–513.Separate Writing Identifying Devise of Certain Types of Tangible Personal Property

Answer 34

Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing must be signed by the testator and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator’s death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that has no significance apart from its effect on the dispositions made by the will.

Question 35

Section 3–902.Distribution; Order in Which Assets Appropriated; Abatement

Answer 35

(a) Except as provided in subsection (b) and except as provided in connection with the share of the surviving spouse who elects to take an elective share, shares of distributees abate, without any preference or priority as between real and personal property, in the following order: (i) property not disposed of by the will; (ii) residuary devises; (iii) general devises; (iv) specific devises. For purposes of abatement, a general devise charged on any specific property or fund is a specific devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.

(b) If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in subsection (a), the shares of the distributees abate as may be found necessary to give effect to the intention of the testator.

(c) If the subject of a preferred devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.

Question 36

Section 2–606.Nonademption of Specific Devises; Unpaid Proceeds of Sale, Condemnation, or Insurance; Sale by Conservator or Agent

Answer 36

(a) A specific devisee has a right to specifically devised property in the testator’s estate at the testator’s death and to:

(1) any balance of the purchase price, together with any security agreement, owed by a purchaser at the testator’s death by reason of sale of the property;

(2) any amount of a condemnation award for the taking of the property unpaid at death;

(3) any proceeds unpaid at death on fire or casualty insurance on or other recovery for injury to the property;

(4) any property owned by the testator at death and acquired as a result of foreclosure, or obtained in lieu of foreclosure, of the security interest for a specifically devised obligation;

(5)any real property or tangible personal property owned by the testator at death which the testator acquired as a replacement for specifically devised real property or tangible personal property; and

(6) if not covered by paragraphs (1) through (5), a pecuniary devise equal to the value as of its date of disposition of other specifically devised property disposed of during the testator’s lifetime but only to the extent it is established that ademption would be inconsistent with the testator’s manifested plan of distribution or that at the time the will was made, the date of disposition or otherwise, the testator did not intend ademption of the devise.

(b) If specifically devised property is sold or mortgaged by a conservator or by an agent acting within the authority of a durable power of attorney for an incapacitated principal, or if a condemnation award, insurance proceeds, or recovery for injury to the property is paid to a conservator or to an agent acting within the authority of a durable power of attorney for an incapacitated principal, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the amount of the unpaid loan, the condemnation award, the insurance proceeds, or the recovery.

(c) The right of a specific devisee under subsection (b) is reduced by any right the devisee has under subsection (a).

(d) For the purposes of the references in subsection (b) to a conservator, subsection (b) does not apply if after the sale, mortgage, condemnation, casualty, or recovery, it was adjudicated that the testator’s incapacity ceased and the testator survived the adjudication for at least one year.

(e) For the purposes of the reference in subsection (b) to an agent acting within the authority of a durable power of attorney for an incapacitated principal, (i) “incapacitated principal” means a principal who is an incapacitated person, (ii) no adjudication of incapacity before death is necessary, and (iii) the acts of an agent within the authority of a durable power of attorney are presumed to be for an incapacitated principal.

Question 37

Section 2–605.Increase in Securities; Accessions

Answer 37

(a) If a testator executes a will that devises securities and the testator then owned securities that meet the description in the will, the devise includes additional securities owned by the testator at death to the extent the additional securities were acquired by the testator after the will was executed as a result of the testator’s ownership of the described securities and are securities of any of the following types:

(1) securities of the same organization acquired by reason of action initiated by the organization or any successor, related, or acquiring organization, excluding any acquired by exercise of purchase options;

(2) securities of another organization acquired as a result of a merger, consolidation, reorganization, or other distribution by the organization or any successor, related, or acquiring organization; or

(3) securities of the same organization acquired as a result of a plan of reinvestment.

(b) Distributions in cash before death with respect to a described security are not part of the devise.

Question 38

Section 2–609.Ademption by Satisfaction

Answer 38

(a) Property a testator gave in his [or her] lifetime to a person is treated as a satisfaction of a devise in whole or in part, only if (i) the will provides for deduction of the gift, (ii) the testator declared in a contemporaneous writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise, or (iii) the devisee acknowledged in writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise.

(b) For purposes of partial satisfaction, property given during lifetime is valued as of the time the devisee came into possession or enjoyment of the property or at the testator’s death, whichever occurs first.

(c) If the devisee fails to survive the testator, the gift is treated as a full or partial satisfaction of the devise, as appropriate, in applying Sections 2–603 and 2–604, unless the testator’s contemporaneous writing provides otherwise.

Question 39

Section 2–603.Antilapse; Deceased Devisee; Class Gifts

Substitute Gift

Answer 39

If a devisee fails to survive the testator and is a grandparent, a descendant of a grandparent, or a stepchild of either the testator or the donor of a power of appointment exercised by the testator’s will, the following apply:

(1) Except as provided in paragraph (4), if the devise is not in the form of a class gift and the deceased devisee leaves surviving descendants, a substitute gift is created in the devisee’s surviving descendants. They take by representation the property to which the devisee would have been entitled had the devisee survived the testator.

(2) Except as provided in paragraph (4), if the devise is in the form of a class gift, other than a devise to “issue,” “descendants,” “heirs of the body,” “heirs,” “next to kin,” “relatives,” or “family,” or a class described by language of similar import, a substitute gift is created in the surviving descendants of any deceased devisee. The property to which the devisees would have been entitled had all of them survived the testator passes to the surviving devisees and the surviving descendants of the deceased devisees. Each surviving devisee takes the share to which he [or she] would have been entitled had the deceased devisees survived the testator. Each deceased devisee’s surviving descendants who are substituted for the deceased devisee take by representation the share to which the deceased devisee would have been entitled had the deceased devisee survived the testator. For the purposes of this paragraph, “deceased devisee” means a class member who failed to survive the testator and left one or more surviving descendants.

(3) For the purposes of Section 2–601, words of survivorship, such as in a devise to an individual “if he survives me,” or in a devise to “my surviving children,” are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of this section.

(4) If the will creates an alternative devise with respect to a devise for which a substitute gift is created by paragraph (1) or (2), the substitute gift is superseded by the alternative devise if:

(A) the alternative devise is in the form of a class gift and one or more members of the class is entitled to take under the will; or

(B) the alternative devise is not in the form of a class gift and the expressly designated devisee of the alternative devise is entitled to take under the will.

(5) Unless the language creating a power of appointment expressly excludes the substitution of the descendants of an appointee for the appointee, a surviving descendant of a deceased appointee of a power of appointment can be substituted for the appointee under this section, whether or not the descendant is an object of the power.

Question 40

Section 2–603.Antilapse; Deceased Devisee; Class Gifts

More Than One Substitute Gift; Which One Takes

Answer 40

If, under subsection (b), substitute gifts are created and not superseded with respect to more than one devise and the devises are alternative devises, one to the other, the determination of which of the substitute gifts takes effect is resolved as follows:

(1) Except as provided in paragraph (2), the devised property passes under the primary substitute gift.

(2) If there is a younger-generation devise, the devised property passes under the younger-generation substitute gift and not under the primary substitute gift.

(3) In this subsection:

(A) “Primary devise” means the devise that would have taken effect had all the deceased devisees of the alternative devises who left surviving descendants survived the testator.

(B) “Primary substitute gift” means the substitute gift created with respect to the primary devise.

(C) “Younger-generation devise” means a devise that (i) is to a descendant of a devisee of the primary devise, (ii) is an alternative devise with respect to the primary devise, (iii) is a devise for which a substitute gift is created, and (iv) would have taken effect had all the deceased devisees who left surviving descendants survived the testator except the deceased devisee or devisees of the primary devise.

(D) “Younger-generation substitute gift” means the substitute gift created with respect to the younger-generation devise.

Question 41

Section 2–805.Reformation to Correct Mistakes

Answer 41

The court may reform the terms of a governing instrument, even if unambiguous, to conform the terms to the transferor’s intention if it is proved by clear and convincing evidence what the transferor’s intention was and that the terms of the governing instrument were affected by a mistake of fact or law, whether in expression or inducement.

Question 42

Section 2–507.Revocation By Writing or By Act

Answer 42

(a) A will or any part thereof is revoked:

(1) by executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or

(2) by performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator’s conscious presence and by the testator’s direction. For purposes of this paragraph, ‘revocatory act on the will’ includes burning, tearing, canceling, obliterating, or destroying the will or any part of it. A burning, tearing, or canceling is a ‘revocatory act on the will’, whether or not the burn, tear, or cancellation touched any of the words on the will.

(b) If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will.

(c) The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator’s estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative on the testator’s death.

(d) The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator’s estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator’s death to the extent they are not inconsistent.

Question 43

Section 1–201.General Definitions

(18)“Governing instrument” means a deed, will, trust, insurance or annuity policy, account with POD designation, security registered in
395
beneficiary form (TOD), transfer on death (TOD) deed, pension, profitsharing, retirement, or similar benefit plan, instrument creating or exercising a power of appointment or a power of attorney, or a donative, appointive, or nominative instrument of any similar type.

Question 44

Section 2–804.Revocation of Probate and Nonprobate Transfers By Divorce; No Revocation By Other Changes of Circumstances

Definitions

Answer 44

(1) Disposition or appointment of property’ includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument.

(2) ‘Divorce or annulment’ means any divorce or annulment, … A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section.

(3) ‘Divorced individual’ includes an individual whose marriage has been annulled.

(4) ‘Governing instrument’ means a governing instrument executed by the divorced individual before the divorce or annulment of his [or her] marriage to his [or her] former spouse.

(5) ‘Relative of the divorced individual’s former spouse’ means an individual who is related to the divorced individual’s former spouse by blood, adoption, or affinity and who, after the divorce or annulment, is not related to the divorced individual by blood, adoption, or affinity.

Question 45

Section 2–804.Revocation of Probate and Nonprobate Transfers By Divorce; No Revocation By Other Changes of Circumstances

Revocation Upon Divorce

Answer 45

Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce, or annulment, the divorce or annulment of a marriage:

(1) revokes any revocable (i) disposition … of property made by a divorced individual to his [or her] former spouse in a governing instrument and any … disposition … in a governing instrument to a relative of the divorced individual’s former spouse, … (iii) nomination in a governing instrument, nominating a divorced individual’s former spouse or a relative of the divorced individual’s former spouse to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, conservator, agent, or guardian; …

Question 46

Section 2–804.Revocation of Probate and Nonprobate Transfers By Divorce; No Revocation By Other Changes of Circumstances

Effect of Revocation

Answer 46

Provisions of a governing instrument are given effect as if the former spouse and relatives of the former spouse disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the former spouse and relatives of the former spouse died immediately before the divorce or annulment.

Question 47

Section 2–804.Revocation of Probate and Nonprobate Transfers By Divorce; No Revocation By Other Changes of Circumstances

Revival if Divorce Nullified

Answer 47

Provisions revoked solely by this section are revived by the divorced individual’s remarriage to the former spouse or by a nullification of the divorce or annulment.

Question 48

Section 2–804.Revocation of Probate and Nonprobate Transfers By Divorce; No Revocation By Other Changes of Circumstances

No Revocation for Other Change of Circumstances

Answer 48

No change of circumstances other than as described in this section and in Section 2–803 effects a revocation.

Question 49

Section 2–509.Revival of Revoked Will

Answer 49

(a) If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act under Section 2–507(a)(2), the previous will remains revoked unless it is revived. The previous will is revived if it is evident from the circumstances of the revocation of the subsequent will or from the testator’s contemporary or subsequent declarations that the testator intended the previous will to take effect as executed.

(b) If a subsequent will that partly revoked a previous will is thereafter revoked by a revocatory act under Section 2–507(a)(2), a revoked part of the previous will is revived unless it is evident from the circumstances of the revocation of the subsequent will or from the testator’s contemporary or subsequent declarations that the testator did not intend the revoked part to take effect as executed.

(c) If a subsequent will that revoked a previous will in whole or in part is thereafter revoked by another, later, will, the previous will remains revoked in whole or in part, unless it or its revoked part is revived. The
previous will or its revoked part is revived to the extent it appears from the terms of the later will that the testator intended the previous will to take effect.

Question 50

Section 2–514.Contracts Concerning Succession

Answer 50

A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after the effective date of this Article, may be established only by (i) provisions of a will stating material provisions of the contract, (ii) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract, or (iii) a writing signed by the decedent evidencing the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

Question 51

Section 3–905.Penalty Clause for Contest

Answer 51

A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.