Key Takeaways

  • A legacy is a gift in a will, often money or property, passed to a legatee.
  • There are multiple types of legacies: general, specific, residuary, demonstrative, universal, and particular.
  • In family law, legacies play an important role in inheritance planning, ensuring loved ones are provided for after death.
  • A legacy may be lost through abatement, ademption, or lapse if conditions aren’t met or assets no longer exist.
  • Legatees’ rights vary depending on whether their legacy is vested, contingent, or executory.
  • Executors generally have one year after the testator’s death to pay out legacies, using personal assets first.
  • Legacies are closely tied to beneficiaries, heirs, and devisees, each with different legal meanings in estate distribution.

A gift of money or of personal property, title to which is passed under the terms of a will.

A bequest or gift of goods or chattels by testament. This word, though properly applicable to bequests of personal estate only, has nevertheless been extended to property not technically within its import, in order to effectuate the intention of the testator, so as to include real property and annuities. Devise is the term more properly applied to gifts of real estate.

The testator's intention, if uncertain, is to be sought, and any words which manifest the intention to give or create a legacy are sufficient.

Three Kinds of Legacy

Legacies are of different kinds - general, specific and residuary.

General Legacy

A legacy is general, when it is so given as not to amount to a bequest of a specific part of a testator's personal estate; as of a sum of money generally or out of the testator's personal estate or the like. A general legacy is relative to the testator's death; it is a bequest of such a sum or such a thing at that time or a direction to the executors, if such a thing be not in the testator's possession at that time, to procure it for the legatee.

Specific Legacy

A specific legacy is a bequest of a particular thing or money specified and distinguished from all other things of the same kind; e.g., of a particular horse, a particular piece of plate, a particular term of years and the like, which would vest immediately with the assent of the executor. A specific legacy has relation to the time of making the will; it is a bequest of some particular thing in the testator's possession at that time, if such a thing should be in the testator's possession at the time of his death. If it should not be in the testator's possession, the legatee has no claim. There are legacies of quantity in the nature of specific legacies, as of so much money with reference to a particular fund for their payment.

This kind of legacy is so far general and differs so much in effect from a specific one, that if the funds be called in or fail, the legatees will not be deprived of their legacies, but be permitted to receive them out of the general assets.

Residuary Legacy

A residuary legacy is a bequest of all the testator's personal estate, not otherwise effectually disposed of by his will.

Demonstrative Legacy

A demonstrative legacy is a gift of money or property that is directed to come from a specific fund or asset but is not limited to it. For example, if a will leaves "$5,000 from the sale of my stock portfolio" to a beneficiary, that is a demonstrative legacy. If the fund named is insufficient, the balance is drawn from the general estate. This type of legacy combines features of both general and specific legacies, offering flexibility in ensuring the legatee receives their gift.

Interest Given In Legacies

As to the interest given, legacies may be considered as; absolute for life, or in remainder. A legacy is absolute when it is given without condition and is to vest immediately.

A legacy for life is sometimes given with an executory limitation after the death of the tenant for life to another person; in this case, the tenant for life is entitled to the possession of the legacy, but when it is of specific article's, the first legatee must sign and deliver to the second, an inventory of the chattels expressing that they are in his custody for life only and that afterwards they are to be delivered and remain to the use and benefit of the second legatee. A bequest for life, if of specific things, is a gift of the property.

In personal property there cannot be a remainder in the strict sense of the word and therefore every future bequest of personal property, whether it be preceded or not by any particular bequest or limited on a certain or uncertain event, is an executory bequest and falls under the rules by which that mode of limitation is regulated. An executory bequest cannot be prevented or destroyed by any alteration whatsoever, in the estate, out of which or after which it is limited. And this privilege of executory bequests, which exempts them from being barred or destroyed, is the foundation of an invariable rule; that the event on which an interest of this sort is permitted to take effect, is such as must happen within a life and twenty-one years.

Universal and Particular Legacies

Legacies can also be divided into universal and particular types.

  • A universal legacy grants the beneficiary a proportion of the estate, such as one-half of all assets, or all movable property.
  • A particular legacy is more limited, applying to a defined portion of the estate not covered under a universal gift.

In family law, these distinctions matter when multiple heirs or legatees are involved, as they determine how assets are divided and whether beneficiaries share equally or receive set portions.

Rights Acquired by the Legatee

As to the right acquired by the legatee, legacies may be considered as vested and contingent. 1. A vested legacy is one by which a certain interest, either present or future in possession, passes to the legatee. 2. A contingent legacy is one which is so given to a person, that it is uncertain whether any interest will ever vest in him.

Legacies and Beneficiaries in Family Law

In family law, legacies form an important part of estate distribution. A legatee differs from other beneficiaries:

  • Heirs inherit under state intestacy laws when no will exists.
  • Devisees receive gifts of real property under a will.
  • Legatees receive personal property or money through a will.

Understanding these distinctions is crucial because disputes often arise between heirs and legatees, especially when family expectations conflict with the testator’s written intentions.

Losing a Legacy

A legacy may be lost by abatement, ademption and lapse. When the legatee dies before the testator or before the condition upon which the legacy is given be performed or before the time at which it is directed to vest in interest have arrived, the legacy is lapsed or extinguished.

Family Law Considerations for Lost Legacies

When a legacy is lost due to ademption (the asset no longer exists), abatement (reduction due to estate debts), or lapse (legatee predeceases the testator), family members may contest the will. In such cases:

  • Courts may interpret the will to preserve the testator’s intent.
  • Some jurisdictions apply anti-lapse statutes, allowing the gift to pass to the legatee’s descendants rather than be extinguished.
  • In blended families, these issues frequently arise where children from prior marriages compete with surviving spouses.

Paying Out Legacies

As to the payment of legacies, it is proper to consider out of what fund they are to be paid; at what time; and to whom. It is a general rule that the personal estate is the primary fund for the payment of legacies. When the real estate is merely charged with those demands, the personal assets are to be applied in the first place towards their liquidation.

When legacies are given generally to persons under no disability to receive them the payments ought to be made at the end of a year next after the testator's decease. The executor is not obliged to pay them sooner although the testator may have directed them to be discharged within six months after his death, because the law allows the executor one year from the demise of the testator, to ascertain and settle his testator's affairs; and it presumes that at the expiration of that period and not before, all debts due by the estate have been satisfied and the executor to be then able, properly, to apply the residue among the legatees according to their several rights and interests.

The legacy under an universal title is that by which a testator bequeaths a certain proportion of the effects of which the law permits him to dispose; e.g., a half, a third, all his immovables or all his movables, or a fixed proportion of all his immovables or of all his movables.

Every legacy not included in the definition given of universal legacies and legacies under a universal title is a legacy under a particular title.

Executor’s Role in Distributing Legacies

The executor plays a central role in ensuring legacies are properly distributed. Their duties include:

  1. Identifying and valuing all estate assets.
  2. Paying estate debts and taxes before distributing legacies.
  3. Following the order of priority: general legacies are paid only after specific and demonstrative legacies are satisfied.
  4. Providing formal accountings to beneficiaries and the court, when required.

In family law disputes, executors are often challenged by beneficiaries who believe legacies have been mishandled or delayed. Executors must balance fairness with strict compliance to probate law.

Frequently Asked Questions

  1. What are legacies in family law?
    Legacies in family law are gifts left in a will, usually money or property, that pass to beneficiaries (legatees) according to the testator’s wishes.
  2. How is a legacy different from an inheritance?
    A legacy is a gift specifically given in a will, while inheritance may also include property received under intestacy laws when no will exists.
  3. What happens if a legacy is no longer available?
    If the asset doesn’t exist at death, the legacy may be extinguished (ademption), unless state law or will language provides otherwise.
  4. Can family members contest legacies in court?
    Yes. Heirs and beneficiaries can challenge legacies if they believe the will is invalid, the testator lacked capacity, or legacies conflict with statutory inheritance rights.
  5. How long does an executor have to pay out legacies?
    Generally, executors have one year after the testator’s death to pay legacies, unless the will or state law requires a different timeline.

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