probate transfers Flashcards
Executor
person who manages estate as personal representative that is named in a valid will
Administrator
when no will exists or the will names no living, competent, and willing person, the probate court will appoint an administrator
Administrator with will annexed
person substituted for the executor named by the will
Appointment of personal representative
To qualify, one must take an oath that she wll faithfully perform her duties and give bond to secure performance that is an amount equal to the value of the decedent’s personal estate plus any real estate the executor has power of sale over (UNLESS waived or estate value is not greater than 25k)
Out of state personal representative
an out of state individual can serve as a PR, but must appoint a resident agent for service of process. However, an out of state bank cannot serve as executor or testamentary trustee
priority of appointment as administrator of estate
during first 30 days after intestate decedent’s death, the priority is:
- any sole distributee or his designee
- any distributee or designee who presents written waivers of the right to qualify from all other competent distributees (basically, everyone other interested person agrees)
if no such person exists or petitions for appointment in 30 days, then the court or clerk may grant administration to the first distributee or his designee that applies. if more than one distributee notifies court of intent to apply within the 30 day, court will give those persons an opportunity to be heard and choose the most suitable among them
duties and powers of the personal representative
PR is a fiduciary and has duty of proper management of estate property and may have duty of prudent investment, if applicable. PR’s primary obligation is to manage assets ethically, responsibly, not engage in self-dealing or stealing, and to keep beneficiaries and the court informed.
PR can employ agents and advisors, maintain tort or contract actions to enforce rights of decedent, and access decedent’s digital accounts in some cases.
Primary probate venue
probate begins in the state where the decedent was domiciled, in the county where decedent resided before death or before entering a long-term care facility. personal property will pass according to primary probate venue (place of domicile)
Ancillary probate venue
ancillary probate venue is for property of decedent in another state. real property passes according to the law of where it is located (situs)
heirs
people who take property through intestacy
Intestacy succession
Category 1 = surviving spouse and created family (children and other descendants)
Category 2 = native family. first to parents and siblings. then, split estate into moieties. 1/2 to maternal grandparents or descendants. 1/2 to paternal grandparents or descendants.
continue proceeding upward until you find family
category 3 = predeceased spouse’s family
category 4 = the state
Intestacy succession when decedent has spouse and children from that marriage
surviving spouse takes all - assumes spouse will eventually pass to children
intestacy succession when decedent has spouse, children from marriage, and children from a prior marriage
spouse takes 1/3 of intestate estate, all children split 2/3 of estate equally. assumes people want to benefit all of their own children equally, regardless of relationships. with parents of their children
intestacy succession when no surviving spouse but has children
children or their descendants take all
intestacy succession when decedent had no spouse or children
decedent’s parents split. if parents predeceased decedent, then decedent’s siblings split
intestate succession if no created family or native nuclear family
if not survived by parents or descendants of parents, then estate is split into moieties. 1/2 goes to the maternal grandparents or descendants, 1/2 goes to paternal grandparents or descendants. there is no limit on the degree of kinship for heirs, so goes on to great-grandparents and descendants until relatives are found.
intestate succession if no created family or native family
if the decedent was widowed, then the estate goes to the family of the decedent’s most recent spouse if they were married at the time of the spouse’s death. passes as if such spouse died intestate and was entitled to the estate.
intestate succession if no created family, native family, or predeceased spouse
escheat to the Commonwealth, meaning Virginia will take the property
predeceased heirs
descendants can step in the shoes of a predeceased heir. so say decedent had 2 kids, one of which died and left a son and daughter. the surviving kid of decedent takes 1/2, the daughter and son of the predeceased heir split the other half. if you have no surviving children but many grandchildren, the grandchildren split in equal parts.
uniform simultaneous death act
To be a survivor for purposes of intestate succession, non-probate transfer, or inheritance under a will, one must survive the decedent by 120 hours (5 days). otherwise, the person is treated as predeceasing the decedent.
half siblings in intestacy
law assumes a decedent would only want to benefit a half sibling half as much as a whole sibling. so if a decedent dies and the only surviving heirs are a half sibling and a whole sibling,, the whole sibling will inherit 2/3 and the half sibling will inherit 1/3. if all heirs are half siblings, they are treated as full siblings. if go upward n succession, will divide into moieties before considering half v. whole relatives
formula for determining fraction of estate for intestacy with half siblings
denominator = 2*[number of whole siblings] + number of half siblings
whole siblings get 2 as numerator, half siblings get 1 as numerator
so, if have 1 whole, 1 half then: 2*1+1 = 3. half gets 1/3, whole gets 2/3
adopted children in intestacy
if child enters new family, then takes nothing from estate of the bio parents and only takes from estate of adopted parents
if child is adopted by step parent, terminating rights of one parent, that child would still take from the intestate estate of both bio parents and from the intestate estate of adopting parent.
parentage of nonmarital children
father may be determined by marriage (if alleged father marries mother of child in his lifetime, it is presumed he is the father), acknowledgement (man, while alive, and mother executed state-provided acknowledgement of paternity), adjudicated (while father was alive, court determined he was bio father), and clear and convincing evidence (posthumous adjudication of paternity based on genetic testing (exhumation may be ordered if necessary) or having held out child as his own)
abandonment as bar to intestate succession
only occurs if abandonment by spouse or minor parent. desertion must have continued until decedent’s death and must have been without cause (abandonment due to DV is allowed)
slayer statutte
if a person is convicted in criminal court of murder or voluntary manslaughter of decedent, or they are found by preponderance of the evidence in civiil court that they committed the elements of murder of VM, the would-be heir is treated as having predeceased the decedent. descendants of slayer can still take
advancement
lifetime gifts of significant value (relative to the estate of the decedent) to descendants that the decedent intended to be an advance payment of inheritance.
when an heir has received advancement, put its value into hotchpot with the actual intestate estate before dividing. look at the value of the gift at the actual time of the gift, not after decedent passed.
mother’s estate was 500k. she gave 100k to one son. Put 100k into hotchpot with estate, creating value of 600k. suppose 2 offspring. Split ½ the estate. Half of the hotchpot value would be 300k. so A, who did not get lifetime gift, will get 300k. recipient of lifetime gift will only get 200k because they got advancement during life
Mom’s estate is only 60k. she gave 100k away. Hotchpot estate is 160k. divide that to 80k. but only 60k left. So sibling that didn’t get gift gets entire 60k – brother isn’t required to reimburse the estate
disclaimer
an intestate heir or designated beneficiary of any probate or non-probate transfer can disclaim all or part of what they are entitled to.
disclaimer must be in writing and signed, must be delivered to PR. if avoiding federal gift or estate tax by disclaiming, disclaimer must be filed with PR within 9 months of decedent’s death
statutory rights of surviving spouse
HERF
Homestead allowance of $20k
Exempt personal property
Residence
Family Allowance
if small estate, will can be entirely destroyed by HERF payouts
homestead allowance of 20k
in lieu of property passing to spouse by will or intestate succession. will take only if nonprobate transfer to someone else or will gives to someone else
exempt personal property
up to 20k worth of cars, furniture, appliances, personal effects, etc. if not t20k worth in estate, spouse is entitled to cash or other assets to make up rest.
Residence
only if spouse claims elective share or decedent died intestate survived by descendants by a former marriage, spouse can live in principal family residence, and PR must pay rent, taxes, insurance until rights in principal residence determined and satisfied
Family allowance
up to one year of support payments while estate is in administration. must be “reasonable” and not exceed $24,000.
deivisees
will beneficiaries receiving real property
legatees
will beneficiaries who receive personal property (by legacy or bequest)
specific devise or bequest
designates a particular, distinct item of property
general bequest
gives dollar amount or percentage of estate value
demonstrative legacy
general bequest specifying source money should come from
will
for a document to constitute a will, it must manifest testamentary intent and have been created by someone with capacity to execute a will
testamentary intent
intention that the document effect a transfer of certain property to certain persons at the author’s death. looking for death time intent with finality of thinking
drafts to an attorney where someone is considering making a will does not constitute a will
capacity to enter into a will
person must be at least 18 and of soundness of mind, if testator lacked capacity at time of execution, then will shall be denied probate. will proponents bear the burden of showing by preponderance that at the time of execution, the testator possessed testamentary capacity
test for capacity
T must have been able to understand the nature of the act they were doing, recollect the nature and value (roughly) of their property, recollect the natural objects of his or her bounty (who would be heirs if no will), and interrelate the act, value, and objects
not sufficient to render incapacitated
mere old age, physical weakness, sickness, failing memory (can’t remember 14th grandchild’s name is not enough!), eccentricity, vacillating judgment, adjudication of incompetency
requirements for holographic will
wholly in testator’s handwriting, as verified by two disinterested persons and signed by the testator
name at the beginning of the will and no signature at the end does not show finality so does not meet requirements.
when is a will effective
when finalized
Holographic will provides “Ruth Ritter. Written by myself Oct. 13, 1946. My will. I leave [dispositive provisions]. Given under my hand, I declare this my last will and testament”
is this valid
Yes. A concluding phrase can demonstrate finality and the testator’s intent that her name at the beginning constitutes a signature. but the name must have been written by the testator
when does a mark count as a signature?
A testamentary document must be signed in such a manner as to make it manifest that the name is intended as a signature. if there is some evidence internal to the document that some writing was intended as a signature, then extrinsic evidence can be used to confirm or deny the intent. Extrinsic evidence can confirm or disprove that initials are meant as a signature, like if the decedent normally writes out his full name as a signature, etc.
requirements for non-holographic will
signed by testator (by assistance, if necessary to steady hand) or a proxy signature by T’s direction and in his presence
witnessed - T signs will or acknowledges having signed earlier in the presence of two witnesses, both present at the same time when T signs/acknowledges (witness does not need to know document is a will, just needs to see T sign. witness can be interested)
Subscribed - each of the two witnesses must subscribe the will in the presence of the testator, meaning they sign their name on the will (one witness can sign at different time than first witness)
