Quick Wills & Trusts

Question 1

In what order are decedent’s debts paid from after death?

Answer 1

Expenses and unsecured debts paid i the following order:

1) from personal property in an intestate estate
2) from personal property disposed by will
3) from RP in an intestate estate
4) from any RP disposed by will
5) from any non-probate transfers

• For #2 and #4 -
  1) residuary estate
  2) general bequests
  3) demonstrative legacies
  4) specific bequests

Question 2

What are the rules to qualifying as an executor of an estate?

Answer 2

1) take oath that you will faithfully perform duties
2) give bond to secure performance –in an amount equal to the value of decedent’s personal estate + value of any real estate over with the executor is given power of sale

Question 3

For the first 30 days after an intestate decedent’s death, who has priority for appointment as administrator of decedent’s estate?

Answer 3

1) spouse who is sole distributee
2) spouse who has written consent of all decedent competant children
3) any distributee who is sole heir
4) any distributee who secures written waivers from all other competant distributees

Question 4

What are the “omitted spouse” rights?

Answer 4

someone who marries the testator after execution of a valid will and for whom there is no provision in the will, takes the INTESTATE SHARE ofa surviving spouse (1/3 if T was survived by descendants of a prior marriage, otherwise entire estate)

Question 5

What are the “statutory” rights of a surviving spouse?

Answer 5

REFH

Residence - ONLY if S files for elective share - has right to occupy residence
Exempt Persona Property - up to 20k
Family allowance - up to 24k
Homestead Allowance - 20k

Question 6

What is the surviving spouse elective share?

Answer 6

SS may elect to take a statutorily set fraction of an “augmented” probate estate. (if D had any surviving descendent, 1/3, if no surviving descendents, 1/2

Question 7

What is the procedure for taking the elective share?

Answer 7

WHEN: file a notice of election within 6 mos 1) after will is admitted to probate or 2) if no will, after administrator of intestate estate is appointed

WHO: must have been legally married to the decedent at the time of death (can be disqualified if willfully abandoned w/o cause)

Question 8

How is the augmented estate calculated?

Answer 8

FIRST: Probate Estate - after payment of debts but before taxes

SECOND: Transfers to the spouse outside of probate (tangible gifts during marriage excluded) non-probate transfers to SS at death of D (bank accounts/insurance etc)

THIRD: transfers to third parties - certain lifetime gifts that benefit anyone other than the SS (more that 10k dyring calendar year of D’s death or 5 years before (includes property gifted in JT w/survivorship rights)

Question 9

What is Demonstrative Legacy?

Answer 9

A general bequest that specifies a source the money should come from

Question 10

Who may execute a will?

Answer 10

1) must be at least 18
2) must have testementary capcity. “soundness of mind” at time of execution of the will.
* If T lacks TC at the time of execution of th eill, entire will is denied probate. BUrden is on proponents of will to show by POE

Question 11

What is the test for Testementary Capacity?

Answer 11

1) understand the nature of the act he or she was doing
2) recollect the nature and value of his or her property
3) recollet the natural objects of his bounty
4) interrelate the above 3`

Question 12

What are the requirements for a holographic will?

Answer 12

1) wholly in T’s handwriting as verified by two disinterested witnesses
2) is signed by testator

Question 13

Requirements for a non-holographic will?

Answer 13

1) signed by testator, or a proxy signature at T’s direction and in T’s presence
2) Witnessed: T must sign the will in the presence or 2 witnesses, both present at the same tim when the T signs it or acknowledges it (no preclusion of interested witnesses and Ws don’t need to know that the document is a will
3) Subscribed/Attestation: Each ot he 2 witnesses must “subscribe the will in in the presence of the T (aka sign a statement on the will that they witnessed T’s signing

Question 14

Informalities in Will execution can be forgiven when?

Answer 14

IF the will proponent in court establishes by CLEAR AND CONVINCING EVIDENCE that the decedent intended the document or writing to constitute the decednt’s will.

this can be done despite non-compliance with almost any of the requirements:

1) one witness (instead of 2)
2) Timing (didn’t sign at same time)
3) signed out of testators presence
4) T signed in wrong place
5) fill in the blank will

Question 15

Who can bring will contests and when?

Answer 15

Only INTERESTED PARTIES can bring a will contest (economic interest that would be adversely affected by probate of the will)

after a will is submitted to probate cour and entered by the clerk:

Party has 6 MONTHS to appeal the clerk’s action to the circuit court

1 YEAR to file with the court a bill in equity to impeach the will

Question 16

When can a separate list of personal property be effective to pass particular items to named recipients?

Answer 16

TARSE

1) refers only to TANGIBLE PERSONAL PROPERTY
2) in existence AT OR AFTER EXECUTION OF THE WILL
3) must describe the items with REASONABLE CERTAINTY
4) must be SIGNED by the testator
5) must be EXPLICITLY REFERRED to by the will

Question 17

What is the pre-decesaed beneficiary rule?

Answer 17

If a will leaves property to anyone who predeceased the T, the bequest “lapses” and goes to an alternate taker, if the will named one, or to the residuary estate

Question 18

What are Anti-Lapse Statutes?

Answer 18

Unless a contrary intention appears in the will, if a beneficiary is 1) T’s grandparent or a descendent of T’s grandparent, AND 2) presdesceaed the testator, the deceased B’s desecendants who survive T tak in place of dead B by representation (In VA, applies ONLY to WILLS not to non-probate PODs)

Question 19

What is the Pretermitted Child rule?

Answer 19

a child born or adopted after execution of the T’s will for whom the will makes no provision(unless will states otherwise):

1) T had no other living child when the will was executed, PC receives what that child would have received under Intestate succession
2) T has a living child when the will was executed and the will made a bequest to that child then in exstance , PC will receive lesser of what child would receive through intestacy or equivalent of the largest bequest to any child which a bequest had been made in the will

Question 20

What is ademption by extinction?

Answer 20

If specifically bequested or devised property is not in the estate at T’s death, the bequest or devise fails

Except: Insurance proceeds from fire or casualty loss PAID AFTER T’s death
AND
Any condemnation award for the taking of property, PAID AFTER T’s death

Question 21

What are the methods of revocation in Virginia?

Answer 21

1) a valide subsequent will that expressly or impliedly revokes the previous will and its codicils
2) divorce or annulment revokes by operation of law and provisions in favor of the former spouse
3) physical act of destruction

Question 22

What physical acts count for revocation of a will in VA?

Answer 22

If T with the intent to revoke a will or codicil (or some person at his direction AND in his presence) CUTS, TEARS, BURNS, OBLITERATES, CANCELS OR DESTROYS a will codicil OR some provision thereto it becomes VOID.

Question 23

Lost wills and mutilated wills in VA are presumed______

Answer 23

To have been revoked by the T. Can be rebutted by clear and convincing evdience

Question 24

How can you revive a revoked will?

Answer 24

1) Re-execute the revoked will
2) Republish by seoarate codicil referring explicitly to revoked will
3) Dependant Relative Revocation: If a will was revoked by physical act based on an assumption that another will would be probated, but the other will never is probate, that the revocation of the first will is cancelled and first will is revived

Question 25

If a testator devises property that is subject to a lien, the lien will be exonerated IF...

Answer 25

the will specifically calls for exoneration of the lien. Otherwise devisee assumes the lien.

Question 26

What is neccesary to establish undue influence in creation of a will?

Answer 26

1) The effect of the influence was to OVERPOWER and will of the TESTATOR. 2) The existence and exertion of INFLUENCE. 3) The product of the influence was to PRODUCE A WILL that WOULD NOT HAVE BEEN MADE BUT FOR SUCH INFLUENCE.

Question 27

To incorporate an extrinsic document not present at the will’s execution into the will by reference, all of the following requirements must be met:

Answer 27

(i) the document must have been in existence at the time the will was executed, (ii) the will must refer to the document as being in existence, and (iii) the will must identify and describe the document with reasonable certainty. (if list contains ALL tangible personal property, may be edited AFTER execution of Will)

Question 28

If one of the necessary attesting witnesses cannot be located, whatw may be substituted for the courtroom testimony of that witness?

Answer 28

A self-proving afidavit

Question 29

What is the result when one of the attesting witnesses to a will is also a beneficiary?

Answer 29

The will and the bequest are valid, and the witness beneficiary can testify for or against the will.

Question 30

If one of two joint tenants kills the other, how is title to the property held?

Answer 30

The killer and the victim’s estate each own one half of the property as tenants in common.

Question 31

An adopted child has the same rights as a natural child for purposes of intestate succession. This means that the child may inherit from or through his adoptive parents and their kin. However, the child may not inherit from or through his natural parents, unless the child_________

Answer 31

the child was adopted by the spouse of a natural parent. In that case, the child may adopt from and through his natural parents and the adoptive parent.

Question 32

How are the intestate shares of descendants distributed in Virginia?

Answer 32

Per Capita by representation

Question 33

In a case involving a will with ambiguous language, for a latent ambiguity, evidence regarding facts and circumstances_______

Answer 33

is admissible

Question 34

A personal representative's duty to the estate includes es, filing ___________ with the court within_______of appointment

Answer 34

an inventory of the estate, within 4 months

Question 35

Are intervivos trusts revocable

Answer 35

18 Yes. All inter vivos trusts are presumed revocable if: Created on or after July 1, 2006 Not expressly made irrevocable by settlor This is a reversal of the common law rule, and a result of Virginia's adoption of the UTC

Question 36

Who can revoke a trust

Answer 36

Settlor Conservator, guardian, or agent only if either: Expressly authorized by trust Authorized by court for good cause

Question 37

Does a trustee have to post bond?

Answer 37

Not unless the court finds it is necessary to protect the interests of beneficiaries

Question 38

What is a Pour Over arrangement?

Answer 38

Either: Pour over will Non-probate vehicle pours over assets into a will Pour over trust Will pours over assets in an intervivos trust

Question 39

What is a self-declaration of trust?

Answer 39

Settlor makes himself both the trustee and beneficiary But adds a remainder beneficiary And a successor trustee, who takes over in the event of settlor's incapacity or death

Question 40

What are the requirements for trust property?

Answer 40

Property must be certain and ascertainable | Legal title must be fully conveyed to trustee

Question 41

What is the statue of limitations for contesting a revocable trust?

Answer 41

The earlier of: Two years after settlor's death Six months after trustee sent person commencing action: Copy of trust instrument Trustee's name and address Notice of time allowed for contesting trust

Question 42

When a trust is contested, can the trustee be subject to liability for distributing assets in according with the trust?

Answer 42

Only if trustee distributes assets while either: Trustee knows of a pending judicial proceeding contesting the trust Trustee has received notice of a possible judicial proceeding that actually commences within 60 days after the notice was sent

Question 43

What happens if a beneficiary of a trust is determined to have been invalid after receiving assets?

Answer 43

Person must return any distribution already received, but has no further liability

Question 44

What is a power of attorney? What makes one durable? What is a springing power of attorney? When does a power of attorney terminate?

Answer 44

Definition: Authorizes another person (i.e., agent) to act on behalf of the principal Durable: States that the power of attorney is not affected by the principal's incapacity or disability Springing: States that the power of attorney becomes effective upon the principal's incapacity or disability Termination: Upon principal's death

Question 45

Who enforces the terms of a charitable trust?

Answer 45

Settlor, if alive, otherwise attorney general of the state

Question 46

What is the distinguishing characteristic of an intervivos trust?

Answer 46

It is created during the lifetime of the settlor This is what makes it an effective non-probate transfer vehicle

Question 47

What is required for a trust to have a valid purpose?

Answer 47

Trust cannot: Further commission of a crime Call for destruction of property Impose unreasonable conditions

Question 48

What happens when the stated charitable purpose of a charitable trust can no longer be accomplished?

Answer 48

May be reformed under Cy Pres

Question 49

What are the restrictions on honorary trusts for pets?

Answer 49

Only animals alive during the settlor's life can be beneficiaries (i.e., trust terminates on death of animal)

Question 50

What is a constructive trust, when is one created?

Answer 50

Equitable device to remedy a bad act. Where a codicil would other wise be valid, revoke if: Wrongful conduct + Unjust enrichment

Question 51

What is a resulting Trust?

Answer 51

Similar to a constructive trust in that it does not require the formalities of a normal trust When the purpose of a trust cannot be achieved, the money "results back" to the settlor Purchase money resulting trust (PMRT) * If A purchases land and title is put in B's name (not a relative) for no reason, there is a presumption that B holds the property in a resulting trust for A * Presumption must be rebutted by clear and convincing evidence that the purchase was a gift for B

Question 52

What is a Spendshift Trust? | Are they enforceable?

Answer 52

Trust that restricts the ability of creditors to reach the trust assets Enforceable unless violates public policy: 1. Child support obligations 2. Fees to lawyer who protected beneficiary's interest 3. Claims by government 4. Mandatory distributions not made by trustee

Question 53

What is it called when a settlor places his assets in a spendthrift trust but retains the right to receive future payments at the trustee's discretion?

Answer 53

Qualified self-settled spendthrift trust, or asset protection trust

Question 54

What are the qualifications for a qualified self-settled Spendthrift trust?

Answer 54

1. VALID trust 2. IRREVOCABLE 3. SPENDTHIRFT CLAUSE 4. QUALIFIED TRUSTEE 5. ADDITIONAL BENEFICIARY other than SETTLOR 6. when distributions made to settlor 6. Settlor cannot disapprove of distributions

Question 55

What is an oral trust?

Answer 55

A trust of either personal or real property, the terms of which can be proven by clear and convincing evidence

Question 56

When can the settlor of a qualified self-settled spendthrift trust challenge a trustee's refusal to distribute?

Answer 56

Only if clear terms that trigger distribution have been met (e.g., amount needed for financial support)

Question 57

What are the requirements for beneficiaries?

Answer 57

Depends on type of trust: Private trust Must have definite and ascertainable beneficiaries Interests must vest within the period of RAP Charitable trust Must have indefinite group of beneficiaries Must have a charitable purpose Not subject to RAP Honorary trust Must have beneficiaries that cannot complain May be pets and cemeteries Not subject to RAP

Question 58

What are the trustees obligations?

Answer 58

Act for benefit of beneficiaries, unless beneficiaries provide consent after complete and full disclosure No self-dealing: Buying or selling trust assets to himself Borrowing trust funds Loaning funds to the trust Profit from serving as trustee via confidential info Buy stock of corporation if corporate trustee

Question 59

Do trustee beneficiaries have an action against third parties involved in self-dealing with the trustee?

Answer 59

Not if they are bona fide purchasers, which does not include parties that are either: Aware of the self-dealing Related to the trustee

Question 60

What is the statute of limitations for an action against the trustee?

Answer 60

Under accounting One year from when Trustee gives beneficiary report (accounting) that: 1. Discloses facts that show existence of breach 2. Informs beneficiary of time to bring action Under termination Five years from the earlier of: Trustee's removal, resignation, or death Termination of beneficiary's interest Termination of trust

Question 61

Can the settlor waive the trustee's obligations?

Answer 61

Yes, after complete and full disclosure, unless: Waiver of legal purpose requirement Waiver of trustee's obligation to act in good faith Waiver of trustee's obligation to not intentionally or recklessly act contrary to beneficiary interests Waiver of statute of limitations to bring action Waiver of court's power to modify trust, remove trustee, require fiduciary bond, or deny trustee compensation

Question 62

What are the specific duties of a trustee?

Answer 62

1. ACT PRUDENTLY 2. BE IMPARTIAL in relationship to beneficiaries 3. CONTROL and protect TRUST PROPERTY 4. COLLECT TRUST PROPERTY and defend claims 5. SEGREGATE TRUST PROPERTY FROM OWN 6. Keep ADEQUATE RECORDS 7. Keep BENEFICIARIES REASONABLY INFORMED 8. FURNISH COPY of TRUST INSTRUMENT on request 9. 60-day notice provision 10. ANNUAL REPORTS

Question 63

What are the trustees notice obligations.

Answer 63

After the trustee accepts, he must notify beneficiaries within 60 days of: ``` Trust's EXISTENCE Trust's SETTLOR(s) Beneficiaries' RIGHTS TO REQUEST copy of trust Beneficiaries' RIGHTS TO ANNUAL REPORT TRUSTEES NAME, address, phone, and e-mai ```

Question 64

What is a trust protector?

Answer 64

Someone other than the corporate trustee who makes sensitive personal decisions regarding the trust

Question 65

How can a corporate trustee avoid a fiduciary duty breach from following the trust protector's directions?

Answer 65

Have settlor incorporate Virginia trust protector provisions in the trust instrument Avoid instances of willful misconduct or gross negligence in following trust protector's instructions

Question 66

What are trustee's powers?

Answer 66

Virginia's trust code expressly a uthorizes a trustee to do whatever the fee simple owner of the property could do, so long as: No self dealing Settlor doesn't say otherwise

Question 67

What are a trustee's responsibility with regard to prudent investing?

Answer 67

Virginia has adopted the Uniform Prudent Investor Act (UPIA) which utilizes a portfolio theory of investing (i.e., so long as the investment fits the portfolio, it is prudent - do not look at the investment individually)

Question 68

What is a trustee's responsibility with regard to prudent investments when the trustee was selected based on his skills?

Answer 68

Trustee will be held to that level of expertise in evaluating his prudence

Question 69

Under UPIA how are investment returns measured?

Answer 69

Total return, including income, but also: Growth Capital gains

Question 70

What is the trustee's responsibility with regard to allocating income between income and remaindermen beneficiaries?

Answer 70

Trustee must act impartially between the two by either: Adjustment powers Unitrusts

Question 71

How does a trustee exercise his investment power?

Answer 71

Trustee distributes income to the income beneficiary, but also some of the capital gains to promote fairness Rule of thumb - 10% of capital gains can be allocated

Question 72

How should the trustee distribute the following expenses between income and principal beneficiaries: Trustee's fees Ordinary expenses Capital expenses

Answer 72

Trustee's fees: Half and half Ordinary expenses: Income beneficiary Capital expenses: Principal beneficiary

Question 73

What is a Unitrust?

Answer 73

Allows trustee to avoid having to allocate between income and remainder beneficiaries Instead, income beneficiary gets between 3% and 4% of FMV of trust, remainder beneficiary gets everything else, regardless of amount of income generated

Question 74

Who can the trustee delegate powers to? Is the trustee liable for delgatee's actions?

Answer 74

Can delegate powers, including investment power, to agent No liable for delegatee's actions so long as trustee exercised reasonable care in: Selecting agent Establishing terms of delegation Reviewing agent's decisions

Question 75

Is a trustee liable on contracts entered into as trustee?

Answer 75

No, so long as trustee: Acted in fiduciary capacity Disclosed fiduciary capacity Contract does not say otherwise

Question 76

Is a trustee liable for torts committed while trustee?

Answer 76

Yes, so long as trustee is personally at fault

Question 77

What constitutes an unreasonable condition of a trust? What is not unreasonable?

Answer 77

Unreasonable Trust encourages divorce E.g., income to Betty, but also principal if she divorces Reasonable Trust provides money until person remarries E.g., income to Betty until she remarries Trust encourages beneficiary to marry Jewish boy E.g., income to Betty if she marries a Jewish

Question 78

Does a co-trustee have liability for actions taken by other trustees?

Answer 78

No, so long as the co-trustee: Dissented Did not join in the action Notified other trustees

Question 79

How many co-trustees have to agree on a decision for it to be ratified?

Answer 79

Majority

Question 80

Can an irrevocable trust ever be modified or terminated while settlor is alive?

Answer 80

Yes, if the settlor and all the beneficiaries consent and the court does the modification or termination Even if the living settlor does not agree, the court may allow modification or termination

Question 81

Can an irrevocable trust ever be modified or terminated after the settlor dies?

Answer 81

Yes, provided that: 1. All beneficiaries consent - -----Modification or termination is not inconsistent with purpose of trust 2. Not all beneficiaries consent - ----Court is satisfied that: - ---------Trust could be modified if all consented - ----------Interests of beneficiaries not consenting (e.g., unborn child) will be protected

Question 82

When can a court modify or terminate a trust without all beneficiaries' consent?

Answer 82

I. Unanticipated circumstances Modification or termination will further purpose of trust based on unanticipated circumstances II. Tax advantages Modification or termination will achieve settlor's tax objectives III. Purposes Either: No trust purpose remains to be achieved Purposes of trust are now unlawful, contrary to public policy, or impossible to achieve IV. Uneconomic If value of trust is

Question 83

Can a trustee ever combine or divide trusts?

Answer 83

Yes, without court approval, so long as it does not frustrate the purposes of the trusts (e.g., to gain more investment ability)

Question 84

Can a court reform the terms of a trust even if the terms are unambiguous?

Answer 84

Yes, if proved by clear and convincing evidence that the settlor's intent and the trust terms were affected by a mistake of fact or law E.g., allow sale of house despite trust restriction so that wife can get a new house in a more suitable zoning district

Question 85

A trustee has a duty to administer a trust ____________________, ____________________, and ____________________.

Answer 85

prudently; in good faith, in the interest of the beneficiaries

Question 86

In order for beneficiaries to compel modification or termination of the trust, how many of the beneficiaries must consent to the change?

Answer 86

All beneficiaries

Question 87

Unless explicitly disclaimed, what is implicitly read into a trust?

Answer 87

revocability by the settlor

Question 88

If a debtor is a beneficiary under an absolute discretionary trust, how can her creditors be repaid?

Answer 88

The creditors can demand payment from the trustee, up to the amount owed them if the trustee decides to issue money to the debtor beneficiary.

Question 89

At what point may general creditors reach a spendthrift trust beneficiary’s interest?

Answer 89

Upon the payment of the trust income to the debtor beneficiary.

Question 90

A father placed $6 million into a revocable trust. The trust is to provide his two daughters with income for life and, on their death, the corpus is to be distributed to their children in equal shares. One of the daughters has no present assets and owes her creditors $500,000. What actions can her creditors take to obtain payment from the trust money?

Answer 90

The creditors can obtain a judgment to garnish the daughter's trust income until her debt is satisfied.

Question 91

In which of the following scenarios would a resulting trust NOT be implied or presumed? A Alton lends Benson money so that Benson can purchase a house. B Alton lends Benson money so that Benson can repair his boat. C Alton creates a trust, the purpose of which is fully satisfied before all the trust property is distributed to beneficiaries. D Alton creates a charitable trust, the purpose of which is impossible, and a court determines the cy pres doctrine

Answer 91

B Alton lends Benson money so that Benson can repair his boat. In order for a purchase money resulting trust to result from a loan, a beneficiary must furnish consideration to a trustee for the acquisition of real or personal property, not just the repair or maintenance thereof

Question 92

Mack creates a testamentary trust for the benefit of the preservation of the lake near his home so that the residents of his hometown will have fresh drinking water. After Mack's death, the lake is sold and public access is closed. The court directs the trustee to reallocate the trust funds to cleaning up the river that runs through the town, but which had been too contaminated beforehand for drinking. Is the reallocation of the money valid?

Answer 92

Yes, because it is as near as possible to the original purpose of the trust.

Question 93

A valid pour-over gift may be made by will to a trust that was created at any time_______

Answer 93

before, concurrently with or after the will’s execution.

Question 94

Which of the following is true of a settlor’s ability to revoke or amend a trust?

Answer 94

A settlor may use any procedure manifesting clear and convincing evidence of the settlor’s intent to revoke or amend the trust.

Question 95

In VA a specific devise of stock that is converted due to merger with another bank---

Answer 95

Devisee is entitled to new stock

Question 96

What is the order of abatement to pay debts of an estate?

Answer 96

Source of payments abate as follows: ``` 1 PP through intestate succession 2 PP in the residuary estate 3 general legacies 4 specific and demonstrative bequests 5 real property ``` *life insurance proceeds are not subject to abatement rules

Question 97

When does a resulting trust arise?

Answer 97

1) an EXPRESS TRUST FAILS in whole or in part 2) a settlor makes an INCOMPLETE DISPOSITION of the trust property and there is excess corpus; OR 3) a purchaser PAYS THE PURCHASE PRICE OF THE PROPERTY and causes title to be taken in another's name.

Question 98

What are the requirements for a document incorporated by reference to be valid?

Answer 98

1) doc must be in existence at the time the will is executed. 2) the will must refer to the document as being in existence; AND 3) the will must identify and describe the document with reasonable certainty.

Question 99

Under the Uniform Trust Code, as adopted by Virginia, a trustee may resign by giving ____days notice to the settlor (if living), all co-trustees, and all qualified beneficiaries (other than beneficiaries under a revocable trust

Answer 99

30 days

Question 100

This type of trust contains a provisison prohibiting voluntary and involuntary transfer of a beneficiaries interest, which might read as follows: "no interest of any beneficiary herein shall be transferable by the beneficiary, nor shall such interest be reachable by the beneficiaries creditors by garnishment, attachment, or other legal process.

Answer 100

Spendthrift Trust

Question 101

Under the Uniform Trust Code, as adopted by VA, fully explain how it is possible to create a perpetual trust in Virginia?

Answer 101

RAP does not apply to any trust if the trust instrument, by its terms, provides that the RAP shall not apply to the trust. To create a perpetual trust in VA, the trust instrument must indicate that the RAP does not apply.

Question 102

What is a support trust?

Answer 102

A trust in which the trustee's discretionary power to make distributions is tied to a standard such as "support" or "maintenance"

Question 103

In VA, what constitutes "presence" for the purposes of witnesses signing in the presence of a testator' will execution?

Answer 103

VA courts have adopted, "conscious presence" test. Not necessary that the testator actually be able to see the witnesses when they sign. They are in his presence if he is aware of where they are and what they are doing.

Question 104

SUppose one or more of the witnesses signs the will immediately before the testator signs it. THe exact order of signing is not material as long as the signings occurred as a part of a__________and ___________ transaction

Answer 104

single and continuous

Question 105

VA permits a will to be reovked by physical act by another person as long as the following two requirements are met:

Answer 105

1) at the testator's direction | 2) in the testator's presence

Question 106

VA does not adopt the will revival rule at common law. What is that?

Answer 106

If a second will is executed containing language revoking a first will. The first will is dead the moment will 2 is executed and will not be revived if will 2 goes missing.

Question 107

A presumption of undue influence arises if the contestant shows by clear and convincing evidence that:

Answer 107

1) testator suffered from WEAKNESS OF MIND 2) testator named a beneficiary with whom the testator stood in a RELATIONSHIP OF CONFIDENCE or dependence 3) the testator previously expressed a CONTRARY INTENTION or previously had expressed no intention regarding the disposition of her property

Question 108

How do you show fraud in a will?

Answer 108

1) knowingly false statements 2) with the intent to deceive testator 3) testator was ignorant of the falsity 4) jane relied on the false statements which induced her to act

Question 109

A decedent’s interest in any multiple-party account ______be included in the inventory of his estate, even if it is ____________

Answer 109

MUST; | held in Joint Tenancy

Question 110

The administrator is appointed by______

Answer 110

the CLERK of the Virginia Circuit Court

Question 111

What is the order of priority for appointment of administrator of an estate during the first 30 days?

Answer 111

(i) a sole distributee or his designee; or (ii) any distributee, or his designee, who presents WRITTEN WAIVERS of the right to qualify from all other competent distributees.

Question 112

If the testator does not sign in the presence of the witnesses, she may__________her signature in their _____________.

Answer 112

acknowledge; | Joint presence

Question 113

For an attested will, there is no requirement that the witnesses sign at ____________

Answer 113

the end of the will

Question 114

If a testator dictates the will to a beneficiary who handwrites it, the beneficiary's writing of her name can ____________

Answer 114

constitute her signature as a witness

Question 115

When specifically devise property is sold by a guardian or conservator for an incapacitated person, the specific beneficiary is entitled to ________. When does it not apply?

Answer 115

a general legacy in an amount equal to the net sale price of the specific item disposed of - does not apply if prior to death the testator's disability ceased and the testaotr survives for another 1 year

Question 116

VA follows per capita by representation which means?

Answer 116

All cousins share equal portions, irregardless of how many children each child had.

Question 117

What is a Constructive Trustee's only duty?

Answer 117

to convey the property to the person who would have owned it bur for the fraud, undue influence, abuse of confidence, or mistake in the transaction that originated the problem.

Question 118

What is a Totten trust?

Answer 118

is a form of trust in which the settlor places money in a bank account or security with instructions that upon the settlor's death, whatever is in that account will pass to a named beneficiary. Settlor uses the account normally during her lifetime.

Question 119

When will a court compel distribution of TRUST INCOME?

Answer 119

When its spelled out in the trust instrument. diminishing trust does not relieve trustee of obligations. Would be a breach of FISUCIARY DUTY and BREACH OF GOOD FAITH to do anything else.

Question 120

When will a court compel distribution of TRUST PRINCIPAL?

Answer 120

The trust instrument must give the trustee express power to invade the principal IF NECESSARY TO FULFILL THE TRUST OBLIGATIONS. Look at INTENT OF SETTLOR, must be carried out if can be done lawfully. Discretionary powers of a trustee are broadly construed and should not be overruled by a court unless a trustee has abused its discretion.

Question 121

When is a co-trustee not be liable for the misappropriations of the other co-trustee?

Answer 121

co-trustee would be jointly and severally liable for the acts, unless he exercised reasonable care in: 1) PREVENTING the breach of trust or 2) COMPELLING the co-trustee to REDRESS the BREACH

Question 122

Are trustees individually liable on a trust if they sign a contract as co-trustees?

Answer 122

No, can only be liable individually if the trustee in entering the contract, failed to reveal his representative capacity.

Question 123

What is the VA slayer statute?

Answer 123

If a beneficiary kills the testator, they get nothing.

Question 124

In VA, can you disinherit a child?

Answer 124

Yes, express disinheritance is permissible so long as there is a complete disposition of the testator's estate in the same will that is disinheriting the child.

Question 125

How does a named executor establish capacity after decedent dies?

Answer 125

1) Offers the will for probate, in CC of last domicile of decedent. 2) After admitted for probate, the court will issue LETTERS TESTEMENTARY, which etablish capacity. 3) Post fiduciary bond (unless requirement waived by will)

Question 126

when an owner retains less than full interest in a land he has devises (i.e. if he is passing a life estate in his will), he maintains a what?

Answer 126

Reversionary Interest. After the life estate is extinguished the land will pass to the residuary (if there is no residuary through intestacy)

Question 127

What is equivocation?

Answer 127

Extrinsic evidence is allowed to cure a latent ambugiuity when in a will, although clear on its face of the property and the beneficiary, results in a misdescription when applied to the facts to which it refers.

Question 128

Is a will devise conditioning that the beneficiary marry a specific person valid?

Answer 128

Yes. Gifts tied to total restraints on marriage would be invalid, but a partial restraint (to a specific person) is ok.

Question 129

If a will devises property in a trust, and the trustee predeceases, what happens to the trust?

Answer 129

The trust does not fail. The trust is enforceable by someone named in the trust instrument, or appointed by court.

Question 130

What effect does the following gift language have: "I give and devise my residence property to my wife, to do with as she pleases, and if it remains undisposed of at her death, title shall pass to my broter."

Answer 130

Wife owns in fee simpler. If a will beneficiary is given absolute dominion over property, a provision of an attempted gift over i.e. "what remains undisposed" is void for repugnancy.

Question 131

What is the stock exemption in Virginia to ademption by extinction.

Answer 131

Specific devisee of stock is entitled to securities of another corporation owned by the testator as a rsult of ta merger, consolidation or other such action.

Question 132

Inter Vivos Trusts created before____________are irrevocable and cannot be amended unless expressley stated.

Answer 132

July 1, 2006. Trusts created after that date are revocable and amendable by the settlor unless the terms EXPRESSLY STATE OTHERWISE

Question 133

What is needed to submit a will for probate?

Answer 133

A will may be self-proved by a SELF-PROVING AFFIDAVIT. Testators and witnesses sign sowrn affidavit before a notary public. If there is no self-proving affidavit, a will offered for probate may be PROVED BY WITNESSES, TESTIMONY IN COURT, OR in a DEPOSITION.