H. Construction Problems

Question 1

Are gifts to heirs during a testator’s lifetime advancements? (i.e. must be deducted from the heir’s share of the estate) - OBVIOUS

Answer 1

No. Unless 1) the will provides for deduction of the gift, or 2) it was indicated in writing that it is a deduction.

Question 2

How to handle cases where there is no proof by clear and convincing evidence that one person survived the other by 5 days?

When in doubt if dead = dead

Answer 2

Property is distributed as if that person predeceased the other person.

Question 3

if a portion of the residuary estate (what’s left after specific bequests) is not effectively distributed (e.g., due to a beneficiary predeceasing the testator), where does that portion go

Answer 3

Modern view is that these fall back into the residuary estate to be redistributed.

Common law allows this to pass to the heirs at law through intestacy.

Question 4

What is anti-lapse statute?

Answer 4

Provides that where a beneficiary under a will predeceases the testator, the gift will vest in the issue if the 1) predeceased beneficiary is a specified descendant of the testator according to statute; and 2) the beneficiary leaves issue.

TIP: ANTI-LAPSE STATUTE PROTECTS BENEFICIARY’S ISSUE.
DON’T FORGET PREDECEASED BENEFICIARY HAS TO BE DESCENDANT OF TESTATOR

Question 5

What is ademption?

Answer 5

A specific gift is adeemed by extension (i.e. revoked) if it cannot be identified at the time of testator’s death or if testator does not own it at time of death.

TIP: ADEEM/DUMP

Question 6

What is abatement?

Answer 6

When the assets in an estate are insufficient to satisfy all debts, expenses, and the gifts specified in a will or trust, the gifts under the will abate or be reduced.

TIP: ABATEMENT PROTECTS CREDITORS

Question 7

What is the order of abatement? (i.e. what is reduced first)? Define general v. sp

Answer 7

Order is
1) Property passing by intestacy
2) Residuary gifts
3) General gifts which are usually money and can be satisfies from any of funds in estate
4) Specific gifts

1. Property not disposed of by the will (intestate property):
   .
   If the will doesn’t cover all of the deceased’s assets, those assets are used first to satisfy debts and expenses.
2. Residuary gifts:
   .
   These are gifts of whatever remains after specific and general bequests are distributed. They are reduced before other types of gifts.
3. General bequests:
   .
   These are monetary gifts that aren’t tied to specific assets. They are reduced before specific bequests.
4. Specific bequests:
   .
   These are gifts of specific items or assets, like a particular piece of property or a specific amount of money from a designated account. They are reduced last.

Question 8

What is slayer statute?

Answer 8

An individual who feloniously and intentionally kills the decedent forfeits all benefits and entitlements to the decedent’s estate

Question 9

What are formal requirements to disclaim? By when must it be made?

Answer 9

It must be in
1) Writing
2) Describe the interest being disclaimed
3) Be signed
4) Be delivered

UPC provides that disclaimer can be made at any time.

Question 10

Does divorce revoke bequests or appointments in a will to a former spouse?

Answer 10

Yes.