Week 11 (26) Flashcards
Does real property count as a specific gift?
Yes, always
What was In re Estate of Anton about?
Facts?
Issue?
Holding? Wrinkle?
Rationale?
Ademption by extinction
Mary executes a will giving daughter Gretchen and son Robert duplex, and residue to other daughter Nancy and Robert. Nancy becomes attorney in fact after Mary’s car accident. Nancy sells Mary’s duplex and other assets.
Is there ademption?
No; Gretchen gets half of the proceeds of the duplex from the remainder. In cases where specific devises are removed from the estate as a result of an involuntary act, the devisee is only entitled to the proceeds which have not been expended on the support of the testator.
Because the testator did not voluntarily sell her assets, including the duplex, because she was
T executes a will bequeathing “my Ford car” to A and later sells the Ford and buys a Rolls-Royce, is A entitled to the Rolls?
No; just the fair market value at the time of distribution
Aunt Fanny Fox has a collection of Chinese snuff bottles. Snuff bottles were first made in China around 1650 when the First Manchu emperor, Kangzi, began to inhale snuff (powdered tobacco) brought by European traders. Sniffing snuff quickly became popular, and thousands upon thousands of small snuff bottles, each with a tiny spoon, were made to carry around in a pocket. Some snuff bottles were carved from jade, agate, and semi-precious stones; others were made of amber, ivory, and glass, sometimes with a scene painted inside. Ordinary Chinese snuff bottles of the eighteenth and nineteenth centuries can be found today for $800 or so, very good ones for perhaps $3,000; exceptional bottles may fetch $50,000 or more. Since each bottle is unique, each is individually priced in accordance with its quality of workmanship, rarity, and particular appeal to collectors’ tastes. Aunt Fanny bought her bottles from the 1950s through the 1970s, one at a time, as she ran across one catching her eye. She kept no records as to costs, and the bottles were not insured. Aunt Fanny’s will devises her snuff bottles to Wendy Brown. At Aunt Fanny’s death, the snuff bottles are not found in her house. No one knows how many bottles there were. Zoe Preston thinks there were 60 or more; Aunt Fanny only part of her collection at any one time. Wendy recalls seeing “about 20” in Aunt Fanny’s display cabinet. Aunt Fanny might have given the bottles away, or sold them, or her nurses may have taken them during her long illness. No one knows for sure.
What result?
Presumption is that it is adeemed; Wendy needs to prove that the will intended to give her the bottles: not tough
What amount? Maybe talk about at least 60 bottles at 800 each, at least $48,000
Do stock splits bring about ademption?
What statute?
Get original amount or later amount?
No
21132
Later amount of stock; if company split 3 stocks into 6, get 6
What happens if someone gives you a car or home with payments due?
What statute?
What to do with it?
How is this different from debt?
Won’t pay off the mortgage from the estate, unless will specifically says to; will owe those monthly payments
21131
Sell it
Debt is repaid from the estate
If the estate has shrunk for some reason, and will gives money to people that just isn’t there, what gifts are not transferred and inwhat order?
What statute (and its label)?
What about after all is paid off?
What’s important to realize about this?
What’s the economic reasoning for this order?
- Property not disposed of by the instrument. (goes intestate)
- Residuary gifts.
- General gifts to persons other than the transferor’s relatives.
- General gifts to the transferor’s relatives.
- Specific gifts to persons other than the transferor’s relatives.
- Specific gifts to the transferor’s relatives.
21402: Order of abatement
Proportionally reduce; “pro rata reduction”
Don’t give pro rata away to everyone; pay off in a list, then pro rata reduction
Specific gifts are more likely to have disparate value to beneficiaries; don’t want lost value in the market
Can you inherit debt?
No
What is ERISA?
What does it require?
the federal law that pre-empts any state law about survivorship on pensions
requires that spouses of survivorship rights of pension plans
What do spouses have a right to in wills in CA?
What rationale?
Outside CA?
Nothing
Surviving spouse already has half of the community property
States have different statutes that guarantee some amount of the deceased spouse property to the surviving spouse, usually before AND during marriage property
What about spousal/forced shares?
What do we have instead?
We don’t have them in CA
Community property
Must a spouse give their half of the community property to their spouse when they die (in their will) in CA?
No; they can give it to whomever
What happens in most SP states, with regard to forced shares?
1/3 of the entire property (before and during marriage, as a result of labor or not) to the surviving spouse
What are migrating couples?
couples who move from a SP state to a CP state and domicile
When will we interfere when a spouse has been omitted?
What statute?
What do we give the omitted spouse?
What does this look like?
How is it different from this?
When they are married after the will has been written, and the will has not been updated
21610
Give omitted spouse 1/2 of the CP and QCP
what would happen in the intestacy
never get more than 1/2 of the SP, which you could get intestacy; other half of SP is the estate to give to others
