Definitions; special rules for children; slayer statue; disclaimers Flashcards
Anyone who has died is called a…
decedent
When a person dies with with a valid will covering all of their property they die in …..
testate
When a person dies without a valid will they die …..
intestate
when a person dies with a valid will that covers some but not all of their property they die in
partial intestacy
What happens in partial intestacy
The property is disposed of both under the terms of the will and under the laws of intestacy. The will applies to whatever property is covered by the will, and the laws of intestacy apply to everything else
I die with a valid will that leaves my house, car and bank accounts to my kids, but i don’t say anything about my rare book collection…..
I die in partial intestacy, my kids get the house, car, and bank accounts under the terms of the will and my rare book collection passes under the laws of intestacy
The decedent’s property that is distributed under the will or under the laws of intestacy is….
All real and personal property owned by the decedent at death.
What property will not be distributed under the terms of a will or the laws of intestacy ?
- property that passes to someone else by operation of law (joint tenancy with a right of survivorship)
- Any property that passes by a written instrument other than a will (life insurance)
Items that do not pass under the the terms of a will or the laws of intestacy are called ….
non-probate transfers
Decedent and his wife owned a house as joint tenants with a right of survivorship…..
The house is not apart of the decedent’s personal estate. It does to the decedent’s surviving spouse automatically, under the rules for joint tenancy
A beneficiary can take property under a will or the laws of intestacy only if ….
the beneficiary survives the decedent
In virginia, how long does the beneficiary have to survive the decedent
120 hours (Va follows the 120 hour rule) (aka 5 days)
If there is doubt about whether the beneficiary survives the decedent, the standard of proof is ….
clear and convincing evidence
In va a husband and wife are both killed when a tree falls on their house. The wife dies immediately and the husband dies 24 hours later. They each had a will and left their personal estates to each other
The husband will be treated as not surviving the wife, so he gets nothing under the will. Both personal estates will be treated under the laws of intestacy
2 exceptions to the 120 hour rule
- A decedent can modify the application of the 120 rule by lengthening or shortening the 120 period.
- The 120 hour does not apply if it would result in the property going to the commonwealth under escheat
An adopted child is treated as….
the biological child of the adopting parent.
An adopted child ceases to be the child of his biological parents unless……
The adopting parent is the spouse of a biological parent
Husband marries wife, who has 3 children, and adopts wife’s 3 kids…..
The children become the husband’s children and they remain the wife’s children
Does va law recognize adult adoption ?
Yes, for the purposes of inheritance
Is a child conceived through assisted conception considered the child of the person who consents to be the child’s parent ?
Yes if:
1. The consent is in writing
2. The writing is given before conception
3. and the child is born during the consenting person’s lifetime (or within 10 months after the consenting person’s death)
First step when you see a child born out of wedlock
Apply the rules about adoption and assisted conception
What to do when neither the rules about adoption or assisted conception apply to a child born out of wedlock ?
Apply the following rules
1. A child born out of wedlock is always the child of her biological mother
2. A child born out of wedlock is the child of her biological father IF:
(a) the biological parents participated in a marriage ceremony either before or after the child’s birth; or
(b) paternity is established by clear and convincing evidence
In order for the father to inherit from the child born out of wedlock and he was never married to the mother the father must…
openly treat the child as his child and must not refuse to support the child
Generally, a child born out of wedlock who is trying to inherit from a biological parent must….
file an affidavit in the circuit court and ask for adjudication of parentage within one year of the parent’s death
However, the one year filing requirement for out of wedlock kids does not apply if
- the percentage has been established through birth records made out by a deceased parent
- Admission of parentage under oath
- A prior proceeding to determine parentage
Effect on the termination of parental rights
- the parent loses the right to inherit from the child, unless the order says otherwise
- However, the child can still inherit from the parent
- However, the parents relatives can still inherit from the child
Multiple lines of inheritance
A child or other person who is related to the decedent through two different relationships takes a single share, using whatever relationship results in the larger share
Aunt adopts her nephew as her son. At the aunts death the son is entitled to 100k as her nephew and 500k as her son….
The nephew/son only gets the 500k share as her son
After born children
Any relative of a decedent who was conceived before the decedent’s death but born after the decedent’s death will inherit as through he had been born during the decedent’s lifetime
The Virginia slayer statue
Generally, A person who kills the decedent is not allowed to take as a beneficiary under the decedent will or laws of intestacy
When does the Virginia slayer statue apply ?
- Applies if the killer has been convicted of murder or voluntary manslaughter in a criminal proceeding; or
- Applies if the killer has been shown to have commited murder of voluntary manslaughter in a civil proceeding by the preponderance of the evidence ( person not the killer will have the burden)
When doesn’t the Virginia slayer statue apply ?
- acquittal by insanity (could still be convicted in civil case)
- In a case of self defense
Effect of the virginia slayer statue
The killer is treated as having predeceased the decedent
What is a disclaimer ?
A refusal to accept an interest in property
What is the effect of a disclaimer ?
Treated as predeceased the decedent
What does a disclaimer need to be valid ?
- Made before the disclaimant accepts or attempts to transfer the property
- Must be in writing
- . must describe the interest and declare it to be disclaimed
- Disclaimant must sign and deliver it to the executor or administrator of the state (if no executor or admin file with circuit court)
