Estates

Question 1

Per stripes

Answer 1

living generation, find live roots, split among that generation and if predeceased D goes to next generation

Question 2

Per capita

Answer 2

whenever persons entitled to partition are all in the same degree of kindred to the intestate, take per capita or by persons
persons share equally in the estate

Question 3

Complete intestacy

Answer 3

person dies without having willed any of one’s property to anyone. Someone dies without a will or a will that has not been validly executed

Question 4

Partial intestacy

Answer 4

when there is a valid will, but for one reason or another the will fails to devise all of the property owned by the testator.
property not covered by the will distributed through rules of intestacy

Question 5

Course of descent

Answer 5

surviving spouse unless there are children not descendants of surviving spouse (1/3 to spouse and 2/3 to surviving children)
children
father and mother
brothers and sisters
1/2 to paternal, 1/2 to maternal (common grandparent) and their descendants
keep going

Question 6

Probate transfer

Answer 6

any transfer at death

Question 7

Escheat

Answer 7

the process by which property reverts to the state
VA- only when no qualified, or at least identified, heir to the property

Question 8

Non-probate assets

Answer 8

pre-death transfers, pass outside of testate or intestate succession

Question 9

Adopted children

Answer 9

a legally adopted child has the same inheritance rights as a biological child
formal requirements of adoption satisfied

Question 10

Adopted child’s inheritance rights

Answer 10

inheritance rights only through the adoptive parents and cease to exist through the biological parents

adopting parents also become heirs of adopted child, intestate passes as if biological child

EXCEPT: adoption of a child by the spouse of a biological parent has no effect on the relationship between the child and either bio parent

Question 11

Half-blood relations

Answer 11

if no surviving spouse, issue, or parents, then siblings are the heirs
the full-blooded sibling takes a full share, and the half-blooded sibling takes a half-share

Question 12

Afterborn heirs

Answer 12

conceived before death but born thereafter.
must be born within 9 months of the death of the parent, treated as bio child and possessing all inheritance rights

if a child is conceived as a result of assisted conception, so long as they are intended to be children of the deceased, then they qualify for same inheritance as children born during life

Question 13

Children born out of wedlock

Answer 13

child is a child of the mother
child of the father, if the biological parents subsequently marry
marriage will create a presumption of legitimacy
paternity is established by clear and convincing evidence, including scientifically reliable genetic testing

Question 14

Missing Heirs

Answer 14

If missing for at least 7 years, probate can continue on the presumption that that person is deceased
if person has fallen overboard at sea, the period is 6 months

Question 15

Whole or half-blood heir?

Answer 15

one tap- half-blood
two taps- whole blood
add taps = denominator

Question 16

Advancement

Answer 16

a gift made during life, intended to be an “advancement” on one’s inheritance

Question 17

Advancement presumption

Answer 17

intention of the ancestor determines whether a gift is an advancement, but a presumption exists that any gift to an heir during life is intended to be an advancement unless recipient can demonstrate with the satisfactory evidentiary standard that was intended as a gift.

VA, presume against an advancement unless there is conclusive evidence to the contrary

Question 18

Hotchpot

Answer 18

VA- equalize, as nearly as possible, the division of a decedent’s estate among his or her children or other descendants

a descendant who has received an advancement must figuratively put the value of the advancement into the pot, along with the value of the probate estate. Then divide that into the requisite number of shares, and subtract the advancement from his share

Question 19

Valuation of advancement

Answer 19

the value of the property given as an advancement is determined as of the time the property is actually transferred to the recipient NOT the time of grantor’s death

Question 20

Simultaneous death

Answer 20

a decedent and an heir of that decedent may die either together, or in such circumstances that make it impossible to determine who died first

Question 21

Uniform Simultaneous Death Act

Answer 21

an heir has to out-live the decedent by 120 hours (5 days), or else the heir will be treated as having died before the decedent
applies whether or not decedent died with a will or intestate

Question 22

Simultaneous death- joint tenants

Answer 22

where there is no sufficient evidence that two joint tenants or tenants by the entirety have died other than simultaneously, the joint tenancy is treated as a tenancy in common

Question 23

Mental state to make a will

Answer 23

capable of understanding:
the nature of the business the testator is engaged in;
the elements testator’s will is composed of; and
the disposition of testator’s property thereby provided for, both as to the property and the persons benefitting, and how it is to be disposed among them

Question 24

Time of testamentary capacity

Answer 24

at the time of the execution of the will

burden is on the proponent of the will to show by a preponderance of the evidence that the testator was of sound mind; anyone contesting the will must overcome that presumption of soundness

whether the testator has a guardian a the time of the will’s execution is not dispositive

Question 25

Testamentary intent

Answer 25

testator must intend to write a will

it is ineffective if the testator intended the writing to be only a joke, or to accomplish another purpose.

Question 26

Valid will

Answer 26

in writing,
signed by the testator, or by some other person in his presence and by his direction,
be signed or acknowledged by him in the presence of at least two competent witnesses, present at the time, and
be subscribed by the witnesses in the presence of the testator, but no form of attestation will be necessary

Question 27

Attestation and signing by witnesses

Answer 27

Must be in the presence of the testator,
the witnesses need not sign in the presence of each other,
no form of attestation is required

Question 28

Competency of witnesses

Answer 28

anyone who is legally competent,
an executor can be a “competent witness” in Virginia despite having an interest in property that passes through the will

Question 29

Harmless error

Answer 29

a document, or writing added on, not executed in compliance with the formalities of a will is treated if it had been validly executed if, within one year of the decedent’s death, the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute a will, revocation, an additional term, revival

Question 30

Self-proved will

Answer 30

witnesses execute an affidavit before a notary or other public official, swearing under oath that this was their signature and they did witness the testator’s will

no need for attesting testimony at the time of probate

Question 31

Holographic will

Answer 31

a will wholly in the handwriting of the testator without attesting witnesses

valid in VA

Question 32

Holographic will requirements

Answer 32

two disinterested people have to testify that they recognize this as the testator’s handwriting

clearly express intent

signed in such a manner to make it manifest that the name is intended as a signature (can be at the beginning)

Question 33

Nuncupative (oral) will

Answer 33

only a soldier in actual military service or a seaman at sea may dispose of their personal estate by oral will.
However, oral will may not dispose of real property

Question 34

Contingent/conditional will

Answer 34

a testator may choose to make a particular gift, or a whole will, conditional on the occurrence of a specific event

Question 35

Living wills

Answer 35

legally binding decision about termination of healthcare in dire situations at the end of their life, but only if the document is executed in a way that resembles the execution requirements of a will

Natural Death Act of VA

Question 36

Undue influence

Answer 36

someone physically or psychologically coerced the testator to execute the will different than they would have done without the influence

resistible persuasion, solicitation, advice, suggestions, and importunity do not constitute undue influence, the will (or the affected portion of the will) is invalid

Question 37

Burden of proving undue influence

Answer 37

rests on the contestant or party who asserts it BUT can shift to the party defending the will if there was a confidential relationship and suspicious circumstances

confidential relationships include relationships between attorney and client, agent and principal, parent and child, brother and sister, caretaker and invalid

Question 38

Two types of fraud (wills)

Answer 38

fraud in the inducement
fraud in the execution

Question 39

Fraud in the inducement

Answer 39

when testator is tricked into making a will on someone else’s behalf (mislead about the nature of facts or knowingly given false information)

Question 40

Fraud in the execution

Answer 40

when testator is tricked into signing a document that they do not realize purports to be their will

Question 41

Two types of mistake (wills)

Answer 41

Mistake in the inducement
mistake in the factum

Question 42

Mistake in the inducement

Answer 42

a mistake as to facts outside the will that induce the testator to dispose of property in a certain manner
the provisions of a will are not set aside for mistake in the inducement

Question 43

Mistake in the factum

Answer 43

a mistake in the will itself
a will may not be re-formed for mistake in the factum if the mistake goes tot he identity of the beneficiary.
however, if the mistake goes to the testator’s testamentary capacity, the will may be held invalid

Question 44

No-contest clauses

Answer 44

testator imposes a penalty in the text of the will for anyone who challenges the will

VA rigorously enforces no-contest clauses. There is no “reasonableness” exception

Question 45

Creditor’s rights

Answer 45

a creditor of an heir has standing to challenge the will if the effect of the new will is to deprive them of any interest to which they could have attached under the first will, or if the testator died intestate.

Question 46

Elements of a gift

Answer 46

donative intent,
delivery, and
acceptance

Note: if the gift is real property, VA does not require a deed to be recorded in order to transfer title

Question 48

Inter Vivos gift

Answer 48

the donor must part with control of the property during the donor’s life, with intent that title pass immediately and irrevocably to the donee.

Question 48

Inter vivos gift- automobile

Answer 48

delivery of the keys to an automobile is not sufficient to effect a gift
donor must assign and deliver the title to the donee, and the donee must be registered as the new owner with the state’s title registry

Question 49

Inter vivos gift- bank accounts

Answer 49

a gift may also be created by the opening of an account in the names of the donor and donee jointly or the donee alone.
the issue of donative intent in the opening of a joint account may be a difficult question for the trier of fact in a joint account

presumption may be that the transaction was arranged for the convenience of the depositor where only one of the joint tenants furnishes most or all of the deposit money and the depositor is elderly or an invalid and cannot easily manage financial matters

Question 49

Safe-deposit boxes

Answer 49

control over the contents of a bank safe-deposit box cannot be transferred mere by the delivery of the donor’s key to the donee. Usually it is necessary for the donee to be signed into the vault area

If a safe-deposit box is rented jointly, there is no presumption of a gift to the other joint tenant of any property placed in the box by either party.

Question 50

Gift causa mortis

Answer 50

gift of personal property made by the donor in contemplation of death from a specific cause, such as an illness from which the donor is then suffering
gift may no be revoked by the donor’s will, instead passes outside the probate estate

revocation is automatic if the donor does not die
donor must intend the gift to take immediate effect
present donative intent must be evidenced by delivery, actual or constructive

Question 51

Gift to minors

Answer 51

minors may hold title to property in their own capacity, the Virginia Uniform Transfers to Minors Act recognizes that a donor may not wish to allow the minor donee to have full use or control of a substantial gift of money or securities
donor may specify distribution at 21
title vests when gift is made

Question 52

Payable/Transfer on Death accounts (P.O.D. or T.O.D)

Answer 52

at the death of the original payees, the account belongs to the POD payees or the survivor of them; if two or more POD payees survive, the right of survivorship does not continue between them, unless the terms of the account or deposit agreement expressly so provide
POD do not transfer through probate estate