Changes to People between Will Execution and Testator's Death

Question 1

What is the requirement for survival w/r/t a will?

Answer 1

Unless will states otherwise, Beneficiary must outlive Testator by 120 hours.

(If no C&C evidence that B did so, B is treated as if he predeceased T)

Question 2

What is lapse?

Answer 2

The Beneficiary died, or is legally treated as if he died, before the Testator

Question 3

What are the four lapse issues w/r/t will?

Answer 3

1. B fails to surivive T for sufficient period of time
2. Distribution of lapsed gifts
3. Anti-lapse statutes
4. Partial lapse in the residuary clause

Question 4

What are the four outcomes of distribution of lapsed gifts?

Answer 4

1. Gifts given out under express terms of the will (i.e., will has instructions for distribution in the case that B predeceases T)
2. Gift saved by anti-lapse statute
3. Gifts destributed via residuary clause (i.e., will doesn’t have express terms w/r/t lapse AND there is no ALS)
4. Gifts destributed via intestacy (i.e., if 1-3 do not exist)

Question 5

What is the basic operation of an anti-lapse statute?

Answer 5

ALS prevents lapse BY substituting:

the descendants of the predeceased beneficiary

FOR

the predeceased beneficiary

(i.e., if B predeceases T and there’s an ALS, B’s gift goes to his descendants)

Question 6

What are the requirements for triggering the ALS? (2)

Answer 6

1. Predeceased B was the T’s descendant, brother, or sister (i.e., B was T’s sibling, kid, grandkid…); AND
2. Predeceased B left at least one descendant who survives T

Question 7

What is the rule on partial lapse in the residual clause?

Answer 7

Unless will provides otherwise, the residuary beneficiaries take the entire residuary estate in proportion to their interests IF T’s estate is:

1. Devised to two or more people,
2. The gift to one of the people lapses, AND
3. The ALS does not apply.

Question 8

What effect does marraige have on a pre-marriage will?

Answer 8

No effect

BUT surviving spouse has a right of election

Question 9

What is the general rule on wills w/r/t divorce, annulment, and separation?

Answer 9

IF there is a final court decree of divorce, annulment, or separation AFTER the execution of the will:

1. all gifts to the former spouse are REVOKED by law; AND
2. the will is read as if the ex-spouse pre-deceased T.

(BUT SEE exceptions)

Question 10

What are the three exceptions to the general rule on divorce, annulment, and separation w/r/t wills?

Answer 10

1. Gifts to ex-stepchildren (i.e., the descendants of the ex-spouse) are NOT revoked by law;
2. An appointment of an ex-spouse as the guardian of mutual children is NOT revoked by law; AND
3. If the couple RE-marries, all provisions in the will pertaining to the spouse are restored.

Question 11

What is a pretermitted child?

Answer 11

“Omitted child”

A pretermitted heir is a person who would likely stand to inherit under a will, except that the testator did not know, or did not know of, the party at the time the will was written.

Question 12

What may a child born or adopted after a will’s execution receive from the will?

Answer 12

Child may receive a FORCED SHARE of T’s estate

(NOTE: A kid who is alive when the will is executed and is not made a beneficiary does NOT get any protection!)

Question 13

What are the two circumstances under which a pretermitted child gets NO protection?

Answer 13

1. Pretermitted child is provided for by a settlement, OR
2. PC is provided for or mentioned in the will.

Question 14

What is the effect on a pretermitted child’s forced share IF testator had one or more kids already when the will was executed?

(If no provision for any kids)

(If provision for one or more kids)

(If limited/nominal gifts for existing kids)

Answer 14

IF no provision for ANY children: Pretermitted child gets NOTHING

IF provision made for one or more children: PC SHARES in the gifts to the children as if a CLASS GIFT were made (i.e., class shares equally, including PC)

IF limited or nominal gifts made to existing children: PC receives a FULL INTESTATE SHARE

Question 15

What is the effect on a pretermitted child’s forced share IF testator had no children when the will was executed?

Answer 15

PC receives an intestate share

(Potentially very problematic for spouse - e.g., if A and B are married without kids, but A has an illegitimate kid, C, and A dies… B would have thought she’d get all property, but in fact she must split it with C)

Question 16

Where does a pretermitted child’s forced share come from?

Answer 16

First, look to the property passing by partial intestacy (uncommon);

Then, all other beneficiaries share proportionally (i.e., pro rata) UNLESS doing so would defeat T’s obvious intention in the will