Definitions Flashcards
The Decedent’s personal estate includes and excludes what?
Includes: all real prop, and PP owned by the decedent at death.
Excludes:
- property that passes directly to someone else by operation of law (eg property that is held in a joint tenancy w the right of survivorship).
- Property that passes by a written instrument other than a will (eg life insurance proceeds, which pass under the terms of the life insurance policy).
Virginia follows what rule for survival?
A beneficiary can take prop under a will or under the laws of intestacy only if the beneficiary survives the decedent.
VA follows the 120 hour rule for determining survival. (5 Days)
If there is doubt about whether the beneficiary survives the decedent, the standard of proof is clear and convincing evidence.
2 exceptions to 120 hour rule:
- A decedents will can change the application of the rule (eg by lengthening or shortening the 120 hour period).
- the 120 hr rule does not apply if it would result in property going to the commonwealth under escheat.
Is an adopted child treated as a biological child in VA Wills?
Yes:
- the adopted child becomes the child of the adopting parent
- the adopted child ceases to be a child of his bio parents, unless the adopting parent is the spouse of a bio parent.
- VA law recognizes adult adoption for purposes of inheritance.
A child of assisted conception is considered the child of the person who consents to be the child’s parent, the consent must be:
- Be in writing
- must be given before conception
- the child must be born during the consenting person’s lifetime (or within 10 months after the consenting person’s death).
Children born out of wedlock, general rules
- first apply the rules about adoption and assisted conception, if those rules apply, no further rules are needed.
- If the adoption and assisted conception rules do not apply use these rules:
a. A child born out of wedlock is always the child of her bio mom.
b. A child born out of wedlock is the child of the bio father, if the parents participated in a marriage ceremony, OR paternity is established by clear and convincing evidence, (which may include DNA testing).
True or false, the rule for determining paternity through clear and convincing evidence allows the child to inherit from the father, but not necessarily the other way, (the father to inherent from the child)?
True, in order for the father to inherit from the child, the father must openly treat the child as his child and must not refuse to support the child
A child born out of wedlock, who is trying inherit from a bio parent must file what in CC?
An affidavit asking for adjudication of parentage within one year of the parent’s death.
The one year req. does not apply if:
1. parentage has already been est. through birth records made out by the deceased bio parent
2. admission of parentage under oath, Or
3. a prior proceeding to determin parentage.
Termination of parental rights:
If a court order terminates parental rights, the parent loses the right to inherit from or through the child, unless the order says otherwise.
Termination does not mean that the child loses the right to inherit from or through the parent.
The termination does not mean that the parent’s relatives cannot inherit from or through the child.
Multiple lines of inheritance:
A child or other person who is related to the decedent through two different relationships take a single share, using whatever relationship results in the larger share.
IE Aunt adopts an orphaned nephew.
Both son and nephew, gets larger share as son, but not both.
After born children’s inheritance:
Any relative of a decedent who was conceived before the D’s death BUT born after the D’s death will inherit as though he had been born during the D’s lifetime.
The VA Slayer Statute. (4)
- A person who kills the D is NOT allowed to take as a beneficiary under the D’s will or the laws of intestacy.
- Applies ONLY if the killer murdered or committed voluntary manslaughter of the D. (Neg. accident will not trigger).
- Applies if the killer has been convicted of murder of vol. manslaughter in a crim. proceeding.
- Applies if a killer has been shown to have committed murder or vol. manslaughter in a civil proceeding by a preponderance of the evidence. (Person who is trying to prevent the killer from inheritance has the burden of proof).
4a: even if the killer has been acquitted for insanity at crim. trial, the slayer stat may apply if the killer loses civil trial.
4b: Does not apply in a case of self defense -> not covered by slayer stat.
Disclaiming inheritance
Disclaiming- is the refusal to accept an interest in prop.
Reasons:
- the prop has a debt attached to it
- another beneficiary needs the prop. more than the disclaimant.
Requirements for a disclaimer to be valid?
- made before the disclaimant accepts the interest or attempts to transfer it.
- Must be in writing
3.Must describe the interest that is disclaimed and mist declare that the interest is disclaimed. - mist sign and deliver the disclaimer to the executor or administrator of the estate, or if there is not one, file it with the CC.
