Distribution

Question 1

T’s estate will be distributed according to the terms of the controlling valid testamentary instrument, except:

Answer 1

• operation of law (omitted spouse, omitted/unknown child, divorce)
• not enough money to go around (see abatement)
• specific gift not in estate at death (see ademption)
• beneficiary (alive at execution) not around because died before T (see lapse/anti-lapse)

Question 2

Gift Classifications

Answer 2

• Specific: identifiable item (issue is ademption)
• General: out of general estate
• Demonstrative: payable from specific property
• Residuary: that which remains after all payments/gifts

Question 3

Abatement (Reduce, in order)

Answer 3

1. intestate property
2. residuary
3. general
4. demonstrative
5. specific

• If more than one beneficiary in a category to be reduced, reduce pro rate
• Omitted child share (generally guaranteed) may raise issue of abatement: the share comes first from the property no transferred by will, then from ALL bequests in the will, pro rata (NOT in order by category)

Question 4

Ademption

Answer 4

• involves a devise that is not part of T’s estate at death
• GR: specific gift is adeemed (destroyed) when specific property is not part of T’s estate at death. To argue against, classify gift as general, OR use change in form doctrine (e.g. sold one car to buy another)
• applies only to specific devises
• failure to preserve the gift is taken as intent to adeem

Question 5

Lapse

Answer 5

GR: When a devisee dies or is dead before T, gift to him lapses (into the residue, if any, else by intestacy), absent contrary statutory or testamentary provision (such as “to my children per stirpes”)

Question 6

Anti-Lapse

Answer 6

Defn: Inheritance by descendants of pre-deceased devisee/legatee

Elements:
-devisee is either:
-blood kindred of T (NOT spouse or friend); OR
relative of T’s current or former spouse; AND
-devisee leaves issue

Question 7

Satisfaction (by intervivos transfer)

Answer 7

-Generally, gift during life does not reduce that person’s share of T’s estate, unless:

• Elements:
• will provides for this treatment; OR
• T declares in contemporaneous writing; OR
• devisee acknowledges in writing

Question 8

Simultaneous Death

Answer 8

• Where T and beneficiary die simultaneously and it cannot be shown by clear and convincing evidence which survived the other, the court will presume that the beneficiary predeceased
• note: lapse/anti-lapse will be an issue

Question 9

Exoneration

Answer 9

Real property is transferred subject to mortgage/other lien without exoneration of the debt, even if the will directs that all debts are to be paid out of the estate