Keeping Current: Probate
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Keeping Current--Probate Editor: Prof.
Gerry W. Beyer, Texas Tech University
School of Law, Lubbock, TX 79409; gwb@
ProfessorBeyercom. Contributors include:
Dave L. Cornfeld, Christy Lee, Kerri G. Nipp,
Claire G. Hargrove, and Prof. William P.
La Pi, na
Keeping Current-Probate offers a
look at selected recent cases, rulings
and regulations, literature, and legisla-
tion. The editors of Probate & Property
welcome suggestions and contributionxs
from readers.
ABATEMENT Trust abatement statute
does not apply to sale of trust prop-
erty. fhe settlor created a revocable
trust ard deeded to it several parcels of
real property on some of which stood
houses. After releasing her power to
revoke, the settlor was placed under
conservatorship and moved to an
assisted living facility W en the con-
servatorship funds were exhausted,
the trustee of the trust petitioned tee
probate court to sell the real property,
including a home that under the terms
of the trust was to pass to a named ben-
eficiary. The court granted the petition
over the beneficiary's objection. Tie
beneficiary appealed and the interme-
d iate appellate court affirmed, finding
that the trust terms expressly stated the
trust property was to be used for the
settlor's care and that the interests of
remaindermen were secondaryN In addi-
tion, nothing in the California statite
governing the abatement of gifts made
in trusts was rele'ant to a sale of trust
property to fulfill the terms of the trust.
The probate court has the authority to
apply the abatement statute should any
trust propertv remain after the settlor's
death. Siegel z Fife, 184 Cal. Rptr. 3d 531
(Ct App. 2015),
ADEM7TION: 'iansfer of real prop-
erty specifically devised in will to
family partnership results in ademp-
tion. The testator's will specifically
devised three parcels of real property
to his daughter, who resided on one of
the parcels. Three years after execution
of the will, the testator transferred the
three parcels to a family limited part-
nership in which he held a 99% lirmted
partnership interest and his son held a
1% general partnership interest. The son
was also the executor of the testator's
will. After the testator's death, the will
was admitted to probate and the daugh-
ter began a proceeding to have the real
property transferred to her under the
it;: : e > .,ic :t~ b;; h[b:'iiP£iLP , 'Tw L ¢LE !?(x [<s; .v~{:']'hO;: 1':, [; ,iC :[':;'[],i/. Hc;Pi'[
will. The trial court held for the daugh-
ter, but the appellate court reversed,
ruling that the devise in the will hlad
adeemed. Under New York law the
intent of tihe testator in tranisferring the
real property out of the pronate estate
is irrelevant, and a partner in a limited
partnership has no interest in specific
partnership property. In re Braunstein, 4
N.Y.S.3d 63 (App. Dix. 2015).
CLASS GIFTS: Class gift not sub-
ject to anti-lapse statute. The testator's
will devised his estate to his children,
share and sha re alike, absolutely and in
fee simnole. Fle was survived by three
children and three grandchildren, the
offspring of a predeceased childl The
Ohio anti-lapse statute applies to class
gifts other than a devise to 'issue,*
'descendan ts,' 'heirs of the body,' 'heirs,'
next of kin,' 'relatives,' or 'family,' or
a class described by language of simi-
lar import. Ohio Rev. Code § 2107.52.
Using Black's Law Dictionatl definitions,
the court held that children was of
similar import to all of the enumerated
terms. T'e comment to a similar Uni-
form Probate Code section, not cited
by te court, recommends a different
outcome. The comment states that the
anti-lapse statute does apply to sin-
gle-generation class gifts and that the
quoted language excludes only multi-
generation class gifts from the operation
of the statute. UPC § 2--603(b)(2). Cs-
illo v. O11, 28 N.E.3d 157 (Ohio Ct. App.
2015).
DISCLAIMERS: Disclaimer by minor
not authorized. The decedent's intes-
tate estate was subject to New York
estate tax because under New York's
intestacy statute, the surviving spouse's
share was not large enough to create
a marital deduction sufficient to elimi-
nate the tax. The deceder's son and
daugnter were willing to renotn ce their
shares, but only if the court approved a
renunciation by the daughter's minor
child tinder the New York renunciation
statute. The court refused to approve
the renunciation by the minor, finding
it not in the minor's best interest, even
though the minor would receive noth-
ing if tie children did not renounce. In
re Friedman,, 7 N.Y.S.3d 845 (Surr. Ct.
2015).
PROBATE & PROPJrftY C JU?/AIUCJST 201 5 3I](ViewImageLocal?handle=hein.journals/probpro29&div=53&collection=&method=preview&ext=.png&size=3)
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Keeping Current: Probate
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