themis handout

Question 1

A decedent’s personal estate does not include:

1. _______
   2._________

There are called _________ transfers.

Answer 1

Does not include property that passes directly to someone else by operation of law (e.g., property that is held in a joint tenancy with the right of survivorship)

Does not include any property that passes by a written instrument other than a will (e.g., life insurance proceeds, which pass to a beneficiary under the terms of the life insurance contract)

non-probate

Question 1

For purposes of the Virginia law of wills, there are three ways to die:

Answer 1

With a valid will covering all property—“testate;”

Without a valid will— intestate

With a valid will that covers some but not all property—partially testate and partially
intestate; (referred to as “partial intestacy”).
The will applies to whatever property is covered by the will, and the laws of intestacy apply to everything else.

Question 2

A beneficiary can take property under a will or under the laws of intestacy only if the beneficiary ______ the decedent by _____ hours.

If there is doubt about whether the beneficiary survives the decedent, the standard of proof is __________________

Answer 2

survives

120

clear and convincing

Question 3

Two exceptions to the 120 hour rule:

Answer 3

• A decedent’s will can change the application of the rule (e.g., by lengthening or shortening the 120-hour period);
• The 120-hour rule does not apply if it would result in property going to the Commonwealth of Virginia under escheat

Question 4

Specials Rules about Children and Other Descendants

1. An adopted child is treated as a _______ child

a. The adopted child ceases to be the child of his ________ parents, unless the adopting parent
is the _____ of a biological parent.

b. Virginia law recognizes ____________________________ adoption for purposes of inheritance.

Answer 4

biological

biological

spouse

adult

Question 5

Specials Rules about Children and Other Descendants

2. Any child conceived through assisted conception is considered the child of the person who ______ to be the child’s parent
   o Must be in _____;
   o Must be given before _______;
   o The child must be born during the consenting person’s ______(or within 10 months after

Answer 5

consents

writing

conception

lifetime

Question 6

Specials Rules about Children and Other Descendants

3. 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

Answer 6

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).

Question 7

o The rule for determining paternity through clear and convincing evidence allows the child to inherit from her father – but not necessarily the other way around

 In order for the father to inherit from the child in that case, the father _____________ and must not refuse to ______________________________ the child.

Answer 7

must openly treat the child as his child

support

Question 8

o A child born out of wedlock who is trying to inherit from a biological parent must ____________ and _____________

The one-year filing requirement does not apply if:
1.
2.
3.

Answer 8

file an affidavit in the circuit court

ask for adjudication of parentage within 1 year of the parent’s death

 Parentage has already been established through birth records made out by the deceased biological parent;
 Admission of parentage under oath; or
 A prior proceeding to determine parentage.

Question 9

4. Termination of parental rights

o If a court order terminates parental rights, the parent _____ the right to ______ from or through the child, unless the order says otherwise.

o The termination of parental rights does not mean that the _____ loses the right inherit from or through the parent.

o The termination of parental rights does not mean that the parent’s ______ cannot inherit from or through the child.

Answer 9

loses

inherit

child

relatives

Question 10

Multiple lines of inheritance

o A child or other person who is related to the decedent through two different relationships takes a single share, using whatever relationship results in the _____________________ share.

Answer 10

larger

Question 11

After-born children

o Any relative of a decedent who was conceived ______ the decedent’s death but born ______ the decedent’s death will inherit as though he had been born during the decedent’s lifetime.

Answer 11

before

after

Question 12

The Virginia Slayer Statute:

Answer 12

• A person who kills the decedent is not allowed to take as a beneficiary under the decedent’s will or the laws of intestacy.

Question 13

The VA slayer statute only applies if:

1.
2.
3.

It doesn’t apply in a case of _______________

The killer is treated as having ______ the decedent.

Answer 13

• Applies only if the killer has murdered the decedent or committed voluntary manslaughter of the decedent (a negligent accident will not trigger the slayer statute).

2. Applies if the killer has been convicted of murder or voluntary manslaughter in a criminal proceed
3. Also applies if the killer has been shown to have committed murder or voluntary manslaughter in a civil proceeding by a preponderance of the evidence
   (with the person who is trying to prevent the killer from inheriting or taking under the will having the burden of proof).

self-defense

predeceased

Question 14

A disclaimer is:

Answer 14

• A refusal to accept an interest in property

for reasons of debt or another beneficiary needs the property more etc.

Question 15

In order for a disclaimer to be valid:

Answer 15

o The disclaimer must be made before the disclaimant accepts the interest or attempts to transfer it;
o The disclaimer must be in writing
o The disclaimer must describe the interest that is disclaimed and must declare that the interest is in fact disclaimed;
o The disclaimant must sign the disclaimer and deliver it to the executor or administrator of the estate (or if there is no executor or administrator, file it with the circuit court).

Question 16

What are the protection against disinheritance?

Answer 16

The family allowance

exempt property

The Homestead Allowance

Use of the Family Residence

The Elective Share

Question 17

A. Who Is Entitled to Inherit through Intestacy?

Answer 17

Generally, the family

Question 18

Intestacy:

If there is a surviving spouse:

Answer 18

o The surviving spouse gets either one-third or 100 percent of the decedent’s personal estate

o Depends on whether the intestate decedent is survived by children or any other descendants from outside the marriage:

Question 19

One or more surviving children or other descendants but no surviving spouse—the surviving children or other descendants get __________________ percent of the decedent’s personal estate

Answer 19

100%

Question 20

No surviving spouse and no surviving children or other descendants—look to the intestate’s ________:

Answer 20

parents
o Both parents are alive—the personal estate goes to the two parents;
o Only one parent is alive—the personal estate goes to that surviving parent.

Question 21

No surviving spouse, no surviving children or other descendants, and no surviving parent—the intestate’s personal estate goes to the intestate’s _____;

if a sibling has predeceased the intestate, the ____ or other descendant of that sibling takes a share along with the surviving siblings

Answer 21

siblings

child

Question 22

No surviving spouse, no surviving children or other descendants, no surviving parent, no surviving sibling, and no surviving descendant of a sibling—the laws of intestacy divide the intestate’s personal estate into two equal portions and assign one-half to the __________ and one-half to the __________

o If there are no paternal relatives, the paternal share goes to the _______ side; if there are no maternal relatives, the maternal share goes to the _______ side.

The specified order is as follows:
 Grandfather and grandmother – or the _____________________ of the two, if one has already died;
 If there is no grandfather or grandmother, to uncles and aunts (and their descendants, the intestate’s cousins, if any uncle or aunt has died);
 If there are no grandparents, no uncles or aunts, and no descendants of uncles and aunts, to great-grandparents;
 If there are no grandparents, no uncles or aunts, no descendants of uncles and aunts, and no great-grandparents, to the brothers and sisters of the grandparents (and their ___________________________________, if any of them has died).

Answer 22

paternal side

maternal side

maternal

paternal

survivor

descendants

Question 23

As a last resort, the intestate’s personal estate escheats to the Commonwealth of Virginia

o Escheat is unlikely because Virginia has a “_______________________________ heir” statute.
o The “laughing heir” statute prefers any relative, no matter how ________________, to escheat.

Answer 23

laughing heir

remote

Question 24

How an Heir Inherits through Intestacy

• One heir (e.g., a surviving spouse or a surviving child) takes _____ of the estate

Two or more heirs at the same level—the estate is simply divided into ________________ portions.

• Multiple descendants at different levels (e.g., a child and a grandchild or two children and five grandchildren)—Virginia intestacy law uses a system of _______________________

A grandchild or a more remote descendant does not share in the inheritance if he has a living parent, grandparent, or other ____________________________ who shares in the inheritance.

The intestate’s children take equal shares if none of the children died before the intestate or if any child who died before the intestate did not leave a surviving child or other descendant.

Answer 24

100%

equal

representation

ancestor

Question 25

Intestacy
The situation is more complicated if a child dies before the intestate and leaves behind one or more surviving children or other descendants:
 Virginia uses a system known as modern per _______________ (or per capita with representation)
 Intestate is survived by a child:
* The estate is divided so that there is one share for each surviving child and one share for each child who died before the intestate and who left behind a surviving child or other descendant.
* The share for the child who died before the intestate is then divided among that child’s surviving children or other descendants.

Intestate is not survived by children but is survived by more remote descendants—the estate is divided at the level where there is a __________________ surviving descendant.

Answer 25

stirpes

first

Question 26

Special considerations: Intestacy

o Half-blood relative—gets only one-half the share of a __________________________
relative
 Does not apply for the intestate’s children, other descendants, parents, or other ancestors;
 Applies only to siblings, nieces, nephews, aunts, uncles, cousins, and other collateral relatives;
 Does not reduce the half-blood relative’s share if the half-blood relative is the only member of a class entitled to a share.

Answer 26

full blood

Question 27

o Adopted child

 Has the same right to inherit through intestacy from the adoptive family as a child born into that adoptive family

 Generally has no right to inherit from the biological family, with two exceptions:

Answer 27

The child is adopted by the spouse of the adopted child’s biological
parent; or

There was an involuntary termination of the parental rights of the child’s biological parents.

Question 28

Advancements: Intestacy

If the intestate made _________ during her lifetime to someone who becomes an heir after the intestate’s death, the gifts may be considered an advancement and may offset the heir’s intestate share.

In that case, the advancements are added back to the estate, and the total – called a ____________________________ – becomes the basis for determining intestate shares.

Answer 28

substantial gifts

hotch pot

If the advancements turn out to be more than the heir would get under this process, the heir can keep what he or she received by lifetime gift (i.e., does not need to pay anything to the other heirs).

Question 29

Attested will

Answer 29

signed by the testator (the person making the will) and witnessed by third parties

Question 30

Holographic will

Answer 30

not witnessed but is in the handwriting of the testator

Question 31

Four Requirements for Attested Will

Answer 31

signed

2

subscribe

• Must be in writing;
• Must be ___________________ by the testator (or signed by a proxy at the testator’s direction
  and in the testator’s presence);
• The testator must sign or acknowledge the will in the presence of at least ___________
  competent witnesses, both or all of whom are present at the same time;
• The witnesses must ___________________________ the will, which means they must sign the
  will in the presence of the testator.

Question 32

Under the conscious-presence test

Answer 32

the witnesses do not have to be in the testator’s sight; it
is sufficient that the testator is aware that the witnesses are present, knows what they are
doing, and could see them by exerting some effort.

Question 33

Although the law requires that the witnesses be competent, a witness is not made
incompetent simply because she has an interest in the will or in the ________________________________.

Answer 33

estate

Question 34

o There is flexibility on the requirement that the testator sign the will.
o There is no particular significance to where the testator signs and where the witnesses sign;
the key point is that it is all done as a single, _________________________________
transaction.

Answer 34

continuous

Question 35

What is a codicil

Answer 35

an amendment to a will

Question 36

A codicil to an attested will must meet the four requirements for a

Answer 36

a valid attested will (i.e., in writing, signed, witnessed, and subscribed)

Question 37

The codicil changes the terms of the will and results in the will being deemed re-executed as of the date of the codicil.
o A codicil may revive a ___________________________________ will by way of a codicil.

Answer 37

revoked

Question 38

Incorporation by reference—allows for a document that is not part of the will (and that is not present when the will is ______________________) to be treated as though it were part of the will

Answer 38

executed

Question 39

Three requirements for incorporation by reference:

Answer 39

 The document that would be incorporated by reference must exist at the time the will is executed;
 The face of the will must indicate that the document is in existence at the time the will is executed;
 The will must identify and describe the document with reasonable certainty.

Question 40

FOUR Requirements for Holographic Will

Answer 40

• The will must be entirely in the handwriting of the testator.
• Two disinterested witnesses must identify the handwriting as the testator’s.
• The testator must sign the will or have someone else sign the will in the testator’s presence and
  at the testator’s direction.
  The holographic will must manifest the testator’s intent to make a last and final disposition of the testator’s property (i.e., there has to be testamentary intent).

Question 41

o The Virginia courts are flexible on the requirement that the holographic will be _____________ in the testator’s handwriting.
o The signature requirement means that the testator must have signed the will.
o The holographic will must manifest the testator’s ___________________________ to make
a last and final disposition of the testator’s property (i.e., there has to be testamentary intent).

Answer 41

entirely

intent

Question 42

Harmless-error doctrine

Answer 42

if the testator does not satisfy one of the requirements for executing a valid attested will or a valid holographic will, the will can still be treated as a valid will.

Question 43

Harmless Error Doctrine:

The _________________________ of the will (i.e., the person arguing in court for the validity of the will) must show _________________;
o The harmless-error doctrine cannot excuse the ____________________________ requirement, except in two cases:

1.
2.

Answer 43

proponent

by clear and convincing evidence that the testator intended for the document to be his will

signature

 Two people mistakenly sign each other’s wills;
 The testator signs the self-proving affidavit to the will rather than the will itself.

Question 44

Revocable trust—______ need to satisfy the formal requirements for a valid will

Answer 44

does not

Question 45

Real property—can be transferred through a transfer-on-_________________ clause in a
deed

Answer 45

death

Question 46

But the Virginia courts will enforce an _______________ contract to make a will for the devise of real property if three requirements are met:

1.
2.
3.

Answer 46

oral
 The agreement is certain and definite in its terms (by clear and convincing evidence);
 The party seeking enforcement performs under the contract;
 Failure to enforce the contract would work a fraud on the party seeking enforcement.

Question 47

• A testator may revoke her will at any time before death.
• By _______:
  o The testator may revoke a will by physically destroying it with the ______________________ of revoking it

o For either a complete or a partial revocation, courts want something
___________________________________ of the will.

By new writing:
o The new document that revokes the prior will can be either a will or a ____________________.
o If the new document is a will, it can be either an attested will or a holographic will.
o Whether it is a will or a codicil, the document has to meet the requirements for a valid will
or a valid codicil.
o If a later will or codicil expressly revokes an earlier will, the later will or codicil also revokes any codicils to the revoked will.

Answer 47

physical act
intent

that touches the words

codicil

Question 48

A later will or codicil may ___________________________________ revoke an earlier will.
o Must be executed in way that satisfies the requirements for ______
o Triggered by an _____________________________ between the older will and the newer will.

Answer 48

implicitly

a valid attested or holographic will.

inconsistency

Question 49

Dependent Relative Revocation
* A rule under which a court cancels a revocation on the theory that the revocation was conditional on a second act that never took place
* If the testator revoked all or part of a will and the evidence shows that the revocation was done in anticipation of a new will but that the testator never made a new will, the court can ___________________ the revocation.

Answer 49

override

Question 50

Revocation through Divorce and Annulment

Answer 50

• A former spouse is treated as if he pre-deceased the testator.
• The former spouse will not take anything under the will.

Question 51

Revival of a Will
* Revival makes a revoked will effective again.
* Four basic rules:
o First will ______ revoked by second will—revocation ______ revive the first will.
o First will _______ revoked by second will—revocation ________ revive the first will.
o If the revocation of the second will does not automatically revive the first will, the testator can still revive the first will by ___________________________________ the first will or by executing a _____ to the first will.
Provisions in a will that are revoked by divorce or annulment are revived if the parties get _________________________ before the testator executes a new will or codicil.

Answer 51

expressly

does not

implicitly

does

re-executing

codicil

remarried

Question 52

Lost Wills
* If a decedent had a will but the original cannot be found after the decedent’s death, there is a __________________________
* A duplicate original _____ be admitted into probate.
o A photocopy of the original _____________________________ be admitted into probate;
o But a photocopy of the original will can be admitted as evidence of the testator’s intent, if all the original copies are lost.
* When the will cannot be found, the burden of proof is on ________
* An attorney’s copy of the will is ________________ evidence of the existence and terms of the will.

Answer 52

rebuttable presumption that the decedent destroyed the will with the intent to revoke it.

can

will not

the person arguing in favor of the will to prove that the will existed.

valid