Estates Flashcards
Per stripes
living generation, find live roots, split among that generation and if predeceased D goes to next generation
Per capita
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
Complete intestacy
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
Partial intestacy
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
Course of descent
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
Probate transfer
any transfer at death
Escheat
the process by which property reverts to the state
VA- only when no qualified, or at least identified, heir to the property
Non-probate assets
pre-death transfers, pass outside of testate or intestate succession
Adopted children
a legally adopted child has the same inheritance rights as a biological child
formal requirements of adoption satisfied
Adopted child’s inheritance rights
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
Half-blood relations
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
Afterborn heirs
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
Children born out of wedlock
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
Missing Heirs
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
Whole or half-blood heir?
one tap- half-blood
two taps- whole blood
add taps = denominator
Advancement
a gift made during life, intended to be an “advancement” on one’s inheritance
Advancement presumption
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
Hotchpot
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
Valuation of advancement
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
Simultaneous death
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
Uniform Simultaneous Death Act
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
Simultaneous death- joint tenants
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
Mental state to make a will
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
Time of testamentary capacity
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
Testamentary intent
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.
Valid will
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
Attestation and signing by witnesses
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
Competency of witnesses
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
Harmless error
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
Self-proved will
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
Holographic will
a will wholly in the handwriting of the testator without attesting witnesses
valid in VA
Holographic will requirements
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)
Nuncupative (oral) will
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
Contingent/conditional will
a testator may choose to make a particular gift, or a whole will, conditional on the occurrence of a specific event
Living wills
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
Undue influence
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
Burden of proving undue influence
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
Two types of fraud (wills)
fraud in the inducement
fraud in the execution
Fraud in the inducement
when testator is tricked into making a will on someone else’s behalf (mislead about the nature of facts or knowingly given false information)
Fraud in the execution
when testator is tricked into signing a document that they do not realize purports to be their will
Two types of mistake (wills)
Mistake in the inducement
mistake in the factum
Mistake in the inducement
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
Mistake in the factum
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
No-contest clauses
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
Creditor’s rights
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.
Elements of a gift
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
Inter Vivos gift
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.
Inter vivos gift- automobile
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
Inter vivos gift- bank accounts
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
Safe-deposit boxes
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.
Gift causa mortis
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
Gift to minors
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
Payable/Transfer on Death accounts (P.O.D. or T.O.D)
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
