Changes in Distribution of Testamentary gifts Flashcards
Give an example of a specific gift
I devise my kenzo jumper to diego
Give an example of a demonstrative gift
I bequeath $200 to be paid from the process of the sale of the BM to Milo
Give an example of a general legacy
I give $200 to Milo
Give an example of residuary
I give all of the reset, residue and remainder of my estate to Lola
Give an example of partial intestacy
Where partial intestacy results and the will has no residuary clause, i give $350 to Eddie.
What is abatement?
This is where there are more claims against the estate than there are assets to cover gifts under the will. If this is the case, gifts will abate.
What is the order of abatement?
If there is no provision in the will the order in which the testator’s property abates is Intestate/Residuary THEN general THEN Demonstrative THEN specific
What if the specific property (i.e. the Kenzo jumper) cannot be found?
The gift fails under the doctrine of ademption
Does a demonstrative legacy adeem? Ie if the BM is no longer around can Milo still get his $200?
It doesn’t a deem. It turns into a general legacy in the sense that if the designated source is no longer in existence, other assets will be sold to satisfy it.
What are the three statutory exclusions to the rules around ademption/abatement?
1) Insurance proceeds. The Kenzo jumper is stolen, Diego is entitled to insurance proceeds if there is an insurance payout.
2) Proceeds received under executory contract.
3) Proceeds from guardian or conservator’s sale of specifically bequeathed property. beneficiary entitled to receive proceeds that can be traced.
What is the common law position if I give Milo the BM and it is encumbered?
If testator makes specific gift of property subject to mortgagor other lien on which testator personally liable, the beneficiary entitled to have that lien exonerated.
What is the NY position if I give Milo the BM and it is encumbered?
Liens on specific devised property not, unless exoneration is express.
What type of gift are shares and stock in publicly traded corporations?
They are general gifts and don’t adeem. Depends if testator names stock saying “I give MY 200 shares of Z Energy Stock to Pheobe”
What type of gift are shares of stock in closely held corporations?
Specific gifts and adeem if they don’t exist.
What type of gift are shares of stock where there is a stock split?
They are treated as specific for the purposes of the split. Must be able to trace.
