Changes In Benes And Property After Will's Execution Flashcards
What is a lapsed gift?
A gift lapses if the bene predeceases the testator.
What is an anti-lapse statute?
Statutes that operate to save the gift if the predeceasing bene was in a specified degree of relationship to the testator and left descendants who survived the testator.
Nearly all states have one.
What does Florida’s anti-lapse statute say?
Florida’s anti-lapse statute provides that a predeceasing bene’s surivivng descendants will take his share per stirpes if:
- The bene is a grandparent or descendant of a grandparent of the testator, and
- the bene is dead when the will is executed, fails to survive the testator, or is required by the will or by operation of law to be treated as having predeceased the testator.
The statute applies unless a contrary provision appears in the will.
Lapse in residuary gift
If a will devised the residuary estate to 2 or more benes and 1 of them predeceased the testator (and the anti-lapse statute did not apply), the CL did not allow the remaining residuary benes to divide the deceased bene’s share among them (unless the will specified this). Instead, the deceased bene’s share passed by intestacy.
Florida and most statutes have replaced this “no residue of a residue” rule with one allowing the remaining residuary benes to divide the share in proportion to their interests in the remaining part of the residue.
Note that if the anti-lapse statute’s provisions are met, that statute takes precedence, and the deceased bene’s descendants take.
Class gifts
If a will makes a gift to a class, only the class members who survive the testator take a share of the gift, unless the will provides otherwise or the anti-lapse statute’s requirements are met.
Bene dead when will executed
If a will makes a gift to a bene who was dead at the time the will was executed, the gift is void.
In Florida, the rules that apply to lapsed gifts also apply to void gifts.
Ademption
Refers to the failure of a gift because it is no longer in the testator’s estate at the time of her death. It applies only to specific devises and bequests.
Specific devises and bequests
Is a gift that is satisfied only by receipt of the particular property described.
If specifically bequeathed property is not in the testator’s estate at death, the bequest is adeemed and the bene takes nothing.
What happens when a bequest is adeemed?
In most states, the court will not inquire into the testator’s intent or the reason the property is no longer in the estate.
Florida courts will admit evidence of the testator’s intent, particularly in circumstances where the absence of the property did not result from her own actions.
Does ademption apply to general or demonstrative legacies?
No because they are satisfied by selling other assets or making a distribution in kind.
A court will attempt to construe a gift of securities as a general legacy, unless the testator specifically stated, e.g. “my 200 shares of Acme stock.”
What are general and demonstrative legacies?
A general legacy is a gift of a specific dollar amount.
A demonstrative legacy gives a dollar amount but specifies a particular asset as the source of payment.
Other special cases where ademption does not apply:
Florida does not apply the ademption doctrine to certain cases involving either property disposed of by a guardian or property that, at the time of the testator’s death, is no longer in the estate but on which there is a balance owed to the testator.
Stock splits and stock dividends
A specific devisee of stock is entitled to any additional shares of the entity owned by the testator as a result of action initiated by the entity or which were purchased under a dividend reinvestment plan.
