Essay tested Flashcards
Transfer on death deed
(a) A transfer on death deed (TODD) allows a real property owner to designate a beneficiary to receive title to certain residential real property on the owner’s death without a probate proceeding or trust administration
Does a transfer on death deed supersede a will related to the real property with the TODD?
YES
If, after making a TODD, the transferor is divorced
the divorce revokes any transfer to a former spouse as designated beneficiary unless the transfer on death deed expressly provides otherwise
Elements of a holographic will
- entirely in the handwriting of the testator
- Signed by the Testator (or proxy with the testator present and at the direction of the testator)
- 2 disinterested witnesses must attest that it is the handwriting of the testator, and
- The holographic will must manifest the testator’s intent to make a last and final disposition of the testator’s property (testamentary intent)
- Testator must have been over the age of 18 and have the requisite capacity to make the will
Ways a will can be revoked?
- physical act with intent to revoke (courts like something that touches the words e.g. an x)
- New document (new will, holographic will, or codicil) must satisfy the elements of a holo will, a normal will, or codicil (which is same factors as will)
CAN BE EXPRESS OR IMPLIED
May a testator use any marking to indicate their signature?
yes
Testamentary intent must be found on: _________ and not from ________
face of the will
extrinsic evidence
A surviving spouse may claim an elective share regardless of whether
(i) any provision for the surviving spouse is made in the decedent’s will or (ii) the decedent dies intestate.
Does virginia have common law marriage?
No
What is an elective share?
Do you have to claim it?
Can it be waived?
Allows a surviving spouse to choose between an amount set by statute and the amount the surviving spouse would get under the decedent’s will or under the laws of intestacy
Yes; spouse must claim it, not automatic
Yes; before or after marriage, must not be unconscionable and must be voluntary; spouse must have made a reasonable and fair accounting of all finances or disclosure must have been waived
If a will beneficiary dies before the testator, the gift _____ but _____
lapses.
In the Commonwealth, such a gift could be saved under the anti-lapse statute so long as the predeceasing beneficiary was a grandparent or lineal descendant of a grandparent of the testator
If the beneficiary is a child, then the executor of the estate would need to
petition the court to have a guardian of the estate appointed in order to manage the property passing to the minor beneficiary
If, after making a will, a testator is divorced then __________________
all provisions in the will in favor of the testator’s divorced spouse are revoked The property devised to the divorced spouse passes as if the divorced spouse predeceased the testator, unless a contrary intention is apparent from the will
If it is a specific bequest, then the bequest falls to the residuary taker. If there is no residuary taker, then the gift passes under intestacy.
is there a presumption that the child’s parent or legal guardian would be the guardian for purposes of distributions from the estate.
NO
What is a residuary clause?
“I give the remainder of my estate to…”
Do you need to survive your joint tenant with right of survivorship by 120 hours to claim right of survivorship ?
YES
If a child is born after execution of the will and the will does not provide for the child then _______
the child is entitled to a portion of the estate:
What is ademption?
Exceptions?
when a testator makes a specific devise, and the identified property is not a part of the testator’s estate at his death, the gift is adeemed and the devisee receives nothing.
However, exceptions apply to certain property, such as stocks. With respect to stocks, the beneficiary would receive any shares of another entity received as a result of a merger or sale of the original company.
Also includes real property ondemned under eminent domain or destroyed by fire or other disaster
and
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.
If the testator dies with a will executed before they married and if the will omits the surviving spouse, _________
the surviving spouse gets their 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.
If a testator executes a will when the testator has no children, a child born or adopted after the execution of the testator’s will, or any descendant of his, who is neither provided for nor mentioned in the will is entitled to
such portion of the testator’s estate as he would have been entitled to if the testator had died intestate.
Can two persons can enter into a binding contract not to revoke or amend their wills
Yes but the agreement must be explicit and will not be inferred simply from execution of reciprocal wills. “Proof of the contractual nature of this agreement between testators must be `clear and satisfactory.
A valid Will should be probated as written, and if it breaches a contract, the remedy lies
in contract law;
It would instead give plaintiff (?) a basis for requesting that a court impose a constructive trust against the decedent’s estate or, if distribution has already occurred, against whomever is in possession of the estate property, putting them under a duty to transfer the property to him
Establishing mental capacity:
o The proponents of the will must show the testator’s mental capacity by a _______
preponderance of the evidence
The amount of the elective share is
50% of the value of the marital property portion of the augmented estate
Q
A surviving spouse has __ months to file a notice of election to claim an elective spouse after the will is admitted to probate.
6
If the intestate is not survived by any living relaative on either the maternal or paternal side,
his estate passes to the relatives of his deceased spouse
ii) If the testator had one or more living children at the time the will was made, then any after-born children are entitled to ___
the lesser of:
a) An intestate share of the testator’s estate; or
b) The largest amount that any other child receives under the will.
If the tester died married with no children from outside the marriage, the pretermitted child gets nothing.
Slayer statute includes
rights not only under a written instrument such as the will, but also intestate succession rights, including family allowance provisions.
Q
burden is on ____ to prove by _____ that the testator had capacity and the will was validly executed
will proponent, preponderance of the evidence
Self-proving affidavits take place of
witness testimony
Q
to have capacity to make a will, testator must have sufficient capacity to understand
1) nature of act she is doing
2) nature, condition, and extent of her property,
3) scope and meaning of the will provisions
presumption of undue influence if
clear and convincing evidence that 1) weakness of mind, 2) named a beneficiary with whom he stood in a relationship of confidence with, 3) previously expressed conflicting intentions
fraud
1) false representations, 2) intent to deceive, 3) ignorant of the false.
if drafted by one in confidential relationship with testator and suspicious circumstances, presumption of fraud arises
Q
If a husband and wife own property as tenants by the entirety with the right of survivorship, divorce
severs the right of survivorship and the parties thereafter hold the property as tenants in common
if any language of the will is ambiguous
extrinsic evidence is admissible to cure the ambiguity in order to give meaning to the testator’s words
a condition tied to a gift that is a total restraint on marriage is:
a condition tied to a gift that is a partial restraint on marriage is:
invalid
valid
a will may be self proved by
a self-proving affidavit. Testator and witnesses sign will and sign sworn affidavit before notary public
disclaimer
i) The disclaimer must be in writing;
ii) The disclaimer must declare the act of disclaiming and describe the interest being disclaimed; and
iii) The disclaimant must sign the disclaimer and deliver it to the executor or administrator of the estate, or if none has been appointed, file it with the circuit court having jurisdiction over the estate.
elements of an attested will
i) The will is in writing;
ii) The will is signed by the testator, or by a proxy at the testator’s direction and in her presence;
iii) The testator must either sign the will or acknowledge the will in the presence of at least two competent witnesses, present at the same time; and
iv) The witnesses must subscribe the will in the presence of the testator, but need not do so in each other’s presence.
The order and placement of signatures is immaterial, as long as the witnesses and testator signed as part of one _______ transaction
continuous
Harmless Error
A document not otherwise satisfying the requirements of an attested or holographic will must be treated as if it had been executed in compliance with the requirements if the proponent of the document establishes by clear and convincing evidence that the decedent intended the document to constitute her will.
If a court determines there is no evidence of testamentary intent within the four corners of the document, that document is not a valid will.
However, if a court determines that a document contains some evidence of testamentary intent, extrinsic evidence may be admitted to determine whether the document is testamentary in nature.
The harmless error doctrine may not be used to excuse compliance with any requirement for a testator’s signature, except
in circumstances when two persons mistakenly sign each other’s will, or a person signs the self-proving certificate to a will instead of signing the will itself.
The marital property portion of the augmented estate is calculated by
multiplying the value of the augmented estate by a percentage that varies depending on the length of the marriage between the decedent and the surviving spouse
The omitted spouse’s share is
the entire estate unless the decedent left descendants from an earlier marriage, in which case the spouse’s share is one-third of the estate
The surviving spouse is entitled to a homestead allowance of
$20,000 instead of property passing to the spouse by will or intestacy.
if a testator seeks to disinherit someone, he must
make a complete disposition of his estate. If any portion of the estate passes by intestate succession, the intestacy statute and not the will governs.
to establish undue influence, must prove
1) influence was exerted, 2) effect was to overpower the mind and will of the testator, and 3) the influence resulted in a will that wouldn’t have been made but for the influence
exceptions to adeem by extinction
if the devised property was sold by a guardian or conservator for incapacitated person, then entiteled to general legacy in amount equal to net value
while testamentary dispositions in favor of a former spouse revoke at divorce, the same rule doesn’t apply to
a former spouse’s child
Virginia allows for revocation of a will by a subsequent written instrument if
the subsequent written instrument expressly revokes the earlier will and is executed with the same formalities as are required for the execution of a will (including testamentary intent)
or
implicitly revoke by being wholly inconsistent with the former will and is executed with the same formalities as are required for the execution of a will (including testamentary intent)
to have capacity to make a will, testator must be
1) at least 18
2) of sound mind at time of executing will,
a latent ambiguity exists when
the language of the will, although clear on its face in describing a beneficiary or property, results in a misdescription when applied to the facts to which it refers
a patent ambiguity exists when
the uncertainty appears on the face of the will. Extrinsic evidence is admissible, but testator’s declarations of intent only admissible when there is an equivocation (describe 2 things equally as well)
a trust for the care of an animal alive during the settlor’s lifetime is
valid, enforceable by someone named in the trust instrument or appointed by the court. Terminates when animal dies
a will cannot make a gift of
non-probate assets
upon the decedent’s death, assets held with another with the right of survivorship
pass directly to the survivor outside of the probate process by operation of law, not part of estate
in virginia, the decedent’s interest in a joint account
is included in the estate’s inventory. However, the account does not become a part of probate estate unless 1) the probate estate is insufficient to pay debts, taxes, and expenses of the administration, and 2) an action is brought against the surviving party within 2 years after the decedent’s death
venue for probating wills lies
where the decedent resided, or if none where they owned real property, or if none where they owned personal property. If in nursing home, place is where it was before they went to the nursing home
Specials Rules about Children and Other Descendants
- Children born out of wedlock
If neither the adoption rules nor the assisted-conception rules apply, use the following rules to determine the child’s parents:
A child born out of wedlock is ________________________ ;
A child born out of wedlock is the child of her biological father if the
or
always the child of her biological mother
biological parents participated in a marriage ceremony (whether before or after the child’s birth) or
paternity is established by clear and convincing evidence (which may include DNA testing).
If a guardian of the estate must be appointed to manage property for an inheriting minor, the guardian must:
- The guardian of the estate must post bond, unless will waives doing so [§ 64.2-504, -505];
- provide a list of heirs at the time of qualification [§ 64.2-509];
- file an inventory within four months of appointment [§ 64.2-1300]; and
- file an accounting within 16 months of qualification and annually thereafter [§ 64.2-1304].
If the minor to inherit the estate dies before 18 and is unmarried and has no descendants; the estate then:
reverts back to the original estate to be distributed according to the residuary or intestacy
As an unsecured debt of the estate, the debt is to be paid first out of
remainder of the estate
If the debt in issue exceeds the value of the estate’s assets
then debts are paid in the following order:
[i] expenses of administration,
[ii] family and homestead allowances,
[iii] funeral expenses, debts and taxes with priority under federal law,
[iv] medical and hospital expenses, [v] debts and taxes due Virginia,
[vi] debts and taxes to localities, and [vii] all other claims.
