VA Wills and Estates

Question 1

Requirements for a Valid Will

Answer 1

A valid will in Virginia must be in writing, signed by the testator (or by someone in the testator’s presence and at their direction), and witnessed by at least two competent witnesses who are present at the same time and sign in the presence of the testator.

Question 2

Holographic Will

Answer 2

A holographic will is entirely handwritten and signed by the testator. It must clearly show the testator’s intent to dispose of their property upon death.

Question 3

Revocation of a Will

Answer 3

A will can be revoked by a subsequent will or codicil, by a physical act (such as tearing or burning), or by operation of law (such as divorce).

Question 3

Intestate Succession

Answer 3

If a person dies without a will, their estate is distributed according to Virginia’s intestate succession laws, prioritizing spouses, children, parents, and other relatives.

Question 4

Elective Share

Answer 4

A surviving spouse may claim an elective share of the decedent’s augmented estate, which is one-third if there are surviving children or descendants, and one-half if there are no surviving children or descendants.

Question 5

Per Stirpes Distribution

Answer 5

In per stirpes distribution, the estate is divided equally among branches of the family, with descendants of a deceased heir taking their ancestor’s share.

Question 6

Ademption by Extinction

Answer 6

If specifically bequeathed property is not in the testator’s estate at death, the gift is adeemed (fails) and the beneficiary receives nothing.

Question 7

Lapse and Anti-Lapse Statute

Answer 7

If a beneficiary predeceases the testator, the gift lapses. Virginia’s anti-lapse statute may save the gift if the beneficiary was a close relative and left descendants.

Question 8

Requirements for a Valid Codicil

Answer 8

A codicil must meet the same formal requirements as a will: in writing, signed by the testator, and witnessed by two competent witnesses.

Question 9

Trust Requirements

Answer 9

A valid trust requires a settlor with capacity, intent to create a trust, a definite beneficiary, a trustee with duties, and trust property.

Question 10

Pour-Over Will

Answer 10

A pour-over will directs that the testator’s remaining assets be transferred to a previously established trust upon the testator’s death.

Question 11

Testamentary Capacity

Answer 11

The testator must have the mental capacity to understand the nature and extent of their property, the natural objects of their bounty, and the disposition they are making.

Question 12

Undue Influence

Answer 12

A will is invalid if it is the result of undue influence, where the testator’s free will has been overpowered by another person.

Question 13

Probate Process

Answer 13

The probate process involves proving the validity of the will, appointing an executor, and administering the estate according to the will and Virginia law.

Question 14

Small Estate Affidavit

Answer 14

Virginia allows for a simplified probate process for small estates valued at $50,000 or less, using a small estate affidavit.

Question 15

Slayer Statute

Answer 15

Virginia’s Slayer Statute prevents a person who feloniously and intentionally kills the decedent from inheriting from the decedent’s estate.

Question 16

Pretermitted Child

Answer 16

A pretermitted child is one who is born or adopted after the execution of the will and is not provided for in the will. Virginia law provides for such children to receive a share of the estate.

Question 17

Exoneration of Liens

Answer 17

In Virginia, unless the will specifies otherwise, real property passes to the beneficiary subject to any mortgage or lien existing at the testator’s death.

Question 17

Abatement

Answer 17

Abatement occurs when the estate’s assets are insufficient to pay all debts and bequests, resulting in a reduction of the beneficiaries’ shares in a specific order: residuary, general, and specific bequests.

Question 17

Non-Probate Assets

Answer 17

Non-probate assets pass outside of the probate process and include jointly owned property with right of survivorship, life insurance proceeds, and retirement accounts with designated beneficiaries.

Question 18

Executor’s Duties

Answer 18

The executor is responsible for collecting the estate’s assets, paying debts and taxes, and distributing the remaining assets according to the will.

Question 18

Guardianship for Minors

Answer 18

If a minor inherits property, a guardian must be appointed to manage the property until the minor reaches the age of 18.

Question 19

Advancement

Answer 19

An advancement is a gift made by the decedent during their lifetime intended to be an early distribution of the heir’s inheritance. It is deducted from the heir’s share of the estate.

Question 20

Spousal Allowance

Answer 20

Virginia law provides a spousal allowance of up to $24,000 for the surviving spouse, which takes priority over other claims against the estate.

Question 21

Family Allowance

Answer 21

The family allowance provides up to $24,000 for the support of the decedent’s surviving spouse and minor children during the administration of the estate.

Question 22

Homestead Allowance

Answer 22

The homestead allowance entitles the surviving spouse or minor children to a $20,000 allowance from the estate, in addition to any other bequests or allowances.

Question 23

Contesting a Will

Answer 23

A will can be contested on grounds such as lack of testamentary capacity, undue influence, fraud, or improper execution.

Question 23

Fiduciary Duty of Executor

Answer 23

The executor has a fiduciary duty to act in the best interests of the estate and its beneficiaries, managing the estate with care and loyalty.

Question 24

Self-Proving Will

Answer 24

A self-proving will includes an affidavit signed by the testator and witnesses before a notary public, which simplifies the probate process by eliminating the need to call witnesses to prove the will’s validity.

Question 25

Spendthrift Trust

Answer 25

A spendthrift trust includes provisions that protect the trust assets from the beneficiary’s creditors and prevent the beneficiary from transferring their interest in the trust.

Question 26

Donative Intent

Answer 26

For a gift to be valid, the donor must have the mental capacity and present intent to make a gift, the gift must be delivered to the donee or his agent, and the donee must accept the gift. The burden is on the donee to establish the existence of these elements by clear and convincing evidence. The delivery requirement exists so as to provide clear manifestation of the donor’s intention to divest himself of title and possession. If a donor clearly expresses written intent to give a gift, clearly describes the subject being gifted, signs the document, and passes the writing out of his control with the intent that it reaches the grantee, then that is a sufficient method of delivery. The acceptance of a gift by the donee is presumed. In addition, when the elements of a gift are satisfied, a delay in the physical transfer of the property until the death of the donor does not invalidate the gift.

Question 27

Inheriting from a deceased biological parent

Answer 27

If a child born out of wedlock seeks to inherit from a deceased biological parent and the deceased’s parentage has not been previously established, the child (or someone acting for the child) must file an affidavit in the circuit court and seek an adjudication of parentage within one year after the death of the parent. Paternity is established by clear and convincing evidence. Virginia statute enumerates acceptable evidence, such as evidence that the father openly cohabited with the mother during 10 months prior to the child’s birth, permitted the child to use his surname, claimed the child as his own on a government document, voluntarily admitted the child was his in writing under oath, or by scientifically reliable genetic testing.

Question 28

Nursing Home

Answer 28

Absent
clear and convincing evidence that a decedent desired to change their legal domicile
permanently, a presumption applies that moving into a nursing home does not change the decedent’s place of legal residence

Question 29

Contract vs Will

Answer 29

A contract to make a will is controlled by the same rules and principles and is enforceable as
other contracts. Thus, in order to be enforceable, the contract must be certain and definite,
based on a valuable consideration, and the proof thereof must be clear and convincing. Where
a contract deals with the transfer of real property, it must satisfy the Statute of Frauds. To
satisfy the Statute of Frauds, the contract must be in writing, and signed by the party to be
charged. Specific performance is the default remedy for enforcement of real property contracts.
Valid contracts will supersede valid wills, on any terms where they conflict.