Changes to Beneficiaries; Changes to Property After Execution of the Will

Question 1

Will as Ambulatory Documents

At what point it time is the will interpreted as being written?

Answer 1

The will generally is interpreted as though it were executed immediately before the testator’s death

Question 2

Lapse and Anti-Lapse

What is lapse?

Answer 2

Agift made by will to a beneficiary who does not survive the decedent is said to lapse (void)

Question 3

Lapse and Anti-Lapse

What does the anti-lapse statute do?

Answer 3

Under the anti-lapse statute, the gift goes to the descendants of the dead beneficiary, as long as they themselves survive the testator. Those descendants take the gift using the modern per stirpes distribution rules that also apply for intestacy.

ONLY applies to RELATIVES

Question 4

Lapse and Anti-Lapse

Can a testator override the anti-lapse statute?

Answer 4

Yes, by language to that effect in the will

Question 5

Lapse and Anti-Lapse

The anti-lapse statute can apply to a ____________ gift

Answer 5

class

only if member was a relative

Question 6

Lapse and Anti-Lapse

If a member of the class does not survive the testator and the anti-lapse statute does not apply,….

Answer 6

the portion of the gift for that dead member of the class lapses —and the rest of the class shares the gift.

Question 7

Lapse and Anti-Lapse

A special Virginia treats residuary gifts as…

Answer 7

class gifts so that if the anti-lapse statute does not apply then the residuary will not pass by intestacy but instead to the other beneficiary of the residuary.

Question 8

Lapse and Anti-Lapse

Effect of lapse if gift is not saved?

Answer 8

If the lapsed gift was not a gift of the residue, it becomes part of the residue

If the lapsed gift was a gift of the residue, it passes by intestacy

Virginia courts can invoke the doctrine of cy pres to rescue gifts to charitable organizations.

Question 9

Omitted Spouses and Pretermitted Children

Whats the rule for ommitted spouses? When does it not apply?

Answer 9

If the testator dies with a will executed before she married and if the will omits the surviving spouse, the surviving spouse gets his intestate share.

That rule does not apply if it appears from the will or from an agreement between the testator and the surviving spouse that the omission was intentional.

Question 10

Omitted Spouses and Pretermitted Children

Ifachildis born after execution of the will and the will does not provide for the child,…

Answer 10

the child is entitled to a portion of the estate:
1. No living children when will was executed—any after-born child is entitled to an intestate share
2. One or more living children when the will was executed—any after-born child is entitled to either an intestate share of the estate or, if smaller, the largest amount that any other child receives under the will,

Question 11

Ademption

What is ademption by extinction?

Answer 11

occurs when a will makes a specific devise or a specific bequest of property and that item of property is not in the testator’s estate at the time of death

Does not apply to general devises or general bequests

Question 12

Ademption

2 exceptions to the rule for ademption by extinction?

Answer 12

Securities—a specific bequest of specific securities includes any other securities of the same entity that the testator acquired by reason of a corporate event (e.g., merger, consolidation, reorganization, stock split, or stock dividend);

Real property—a specific devise of real property condemned under eminent domain or destroyed by fire or other disaster will include the condemnation proceeds or the insurance proceeds that remain unpaid at the testator’s death;

Disability—a specific devise or specific bequest of property that was sold on behalf of the testator while the testator was under a disability or was legally incapacitated includes the proceeds from the sale.

Question 13

Ademption

Ademption by satisfaction?

Answer 13

occurs when a testator transfers property to a beneficiary during
the beneficiary’s lifetime, if:
1. The will provides for deduction of the transfer;
2. The testator declares in a contemporaneous writing that the transfer is in satisfaction of the bequest;
3. The beneficiary acknowledges in writing that the transfer is in satisfaction of the bequest.

Question 14

Exoneration of Liens

What is the right to exoneration? How does one obtain that right?

Answer 14

Gift of specific property by will includes a right to have the estate pay off any mortgage, lien, or other debt encumbering the property. There is no right to exoneration unless there is a clear statement otherwise in the will.

Question 15

Abatement

If the estate does not have assets sufficient to pay creditors and all the devises and bequests provided in the will, the creditors are paid first and the devises and bequests are cut back. Order of abatement?

Answer 15

Virginia starts by abating gifts of personal property, then real property

Order:
1. Property that would pass by intestacy;
2. Property passing as residue of the estate;
3. General bequests;
4. Demonstrative bequests (i.e., a gift of a specific amount of money to be paid out of a specific item of property);
5. Specific bequests

Question 16

Insolvency

Creditors are paid in the following order of priority (10):

Answer 16

1. Costs and expenses of administration;
2. The family allowance, exempt property, and the homestead allowance;
3. Funeral expenses up to $4,000;
4. Any debts and taxes that have a preference under federal law;
5. Medical expenses from the decedent’s final illness, up to $2,150 for each hospital or nursing home and up to $425 for each individual;
6. Debts and taxes due to the Commonwealth of Virginia;
7. Debts payable as a fiduciary;
8. Debts for arrearage of child support;
9. Debts and taxes sdue to state and local governments;
10. All other claims