VA Wills & Estates Flashcards
Children born out of wedlock: A child born out of wedlock is also the child of the biological father if:
a) The biological parents participated in a marriage ceremony before or after the birth of the child (even if the ceremony or marriage is ruled invalid); or
b) Paternity is established by clear and convincing evidence, such as evidence that the father:
- openly cohabited with the mother during 10 months prior to birth of child,
- permitted the child to use his surname,
- claimed the child as his own on a government document (e.g., tax return),
- voluntarily admitted paternity in writing under oath, or
- scientifically reliable genetic testing.
However, paternity established in this manner does not qualify the father to inherit from or through the child unless the father has openly treated the child as his, and has not refused to support the child. See Va. Code Ann. § 64.2-102.
If a child born out of wedlock seeks to inherit from or through the biological parent, the child (or someone acting for the child) must file an affidavit in circuit court and seek an adjudication of parentage within:
one year of the death of the parent.
This limitation does not apply when parentage is established either by
- (i) a birth record prepared upon information given by or at the request of such parent,
- (ii) admission by the parent of parenthood before any court* or in *writing under oath, or
- (iii) a previously concluded proceeding to determine parentage.
Attested Will Requirements:
i) The will is in writing;
ii) The will is signed by the testator, or by a proxy at the testator’s direction and in her presence;
iii) The testator must either sign the will or acknowledge the will in the presence of at least two competent witnesses, present at the same time; and
iv) The witnesses must subscribe the will in the presence of the testator, but need not do so in each other’s presence.
Incorporation by reference requirements:
(i) the paper sought to be incorporated by reference must have been in actual existence at the time of the will,
(ii) the face of the will must indicate that it is a paper in existence at that time, and
(iii) the paper must be identified and described with reasonable certainty in the will. Freeman v. Anderson, 55 Va. Cir. 353, 355 (2001).
abatement order of priority
personal property abates before real property.
NOTE: Creditors paid before beneficiaries
i) Property passing by intestacy;
ii) Property passing under the residue of the will;
iii) General bequests (e.g., “$10,000 to X”);
iv) Demonstrative bequests (a hybrid of a general and a specific devise, e.g., a bequest of a certain amount of money, to be paid out of a particular piece of property); and
v) Specific bequests (a particular piece of property).
Presumption of undue influence shifting the burden of production (not persuasion)
Contestants can establish a presumption of undue influence that shifts the burden of production to the proponent by satisfying the following test:
- i) The testator suffered from weakness of mind (e.g., from advanced age or injury) when the will was made;
- ii) The testator named a beneficiary who stood in a relationship of confidence or dependence; and
- iii) The testator previously had expressed an intention to make a contrary disposition of his property.
Weedon v. Weedon, 720 S.E.2d 552 (Va. 2012); Parish v. Parish, 704 S.E.2d 99, 106 (Va. 2011).
A confidential relationship typically arises from a fiduciary relationship (attorney-client) or if the testator depended on the beneficiary to manage financial affairs. It does not arise merely because of a close family relationship. Parfitt v. Parfitt, 672 S.E.2d 827 (Va. 2009).
To disclaim a property interest:
To be effective:
a disclaimer must be made before the disclaimant accepts or attempts to transfer the interest sought to be disclaimed.
i) The disclaimer must be in writing;
ii) The disclaimer must declare the act of disclaiming and describe the interest being disclaimed; and
iii) The disclaimant must sign the disclaimer and deliver it to the executor or administrator of the estate, or if none has been appointed, file it with the circuit court having jurisdiction over the estate. Va. Code Ann. §§ 64.2-2603, 64.2-2611.
A disclaimer can be used to defeat creditors’ claims, but not a federal tax lien.
Intestate Succession Order
-
Surviving spouse? If yes →
* W/o descendants OR with descendants only from SS → Spouse gets all
* With any descendants NOT from SS → 1/3 SS, 2/3 descendants
* 2. If No SS → Descendants of D, per capita with representation- This means: shares are divided at the first generation with: someone alive to take
* 3. If None→ Parents of D
* 4. If None → Brothers and sisters of D and their descendants
* 5. If none → 1/2 each to paternal & maternal kindred: - grandparents and their descendants, 1/2 to each set;
- uncles/aunts and their descendants;
- great grandparents;
- brothers/sisters of grandparents, and their descendants; etc….
* 6. If none → Most recent spouse’s family
* 7. If none → Escheat to the state
- This means: shares are divided at the first generation with: someone alive to take
-
Surviving spouse? If yes →
insolvent Estates
An estate is insolvent if it cannot pay all of the creditors’ claims. In such cases, debts and demands are paid in the following order of descending priority:
i) Costs and expenses of administration;
ii) Family allowance, homestead, and exempt property;
iii) Funeral expenses up to $4,000;
iv) Debts and taxes with preference under federal law;
v) Medical expenses of the decedent’s last illness up to $2,150 for each hospital and nursing home and $425 for each person (e.g., private nurses) furnishing services;
vi) Debts and taxes due to the Commonwealth;
vii) Debts payable as a fiduciary;
viii) Debts for child support arrearages;
ix) Debts and taxes due to state and local governments; and
x) All other claims. Va. Code Ann. § 64.2-528.
assisted conception elements:
(i) Written consent
(ii) before conception
(iii) child must be born during the consenting person’s lifetime (or within 10 months after
the consenting person’s death).
Basic rule for the elective share regarding decedents who died before 2017
Decedent left descendants—elective share is: ⅓ of decedent’s augmented estate
No descendants: elective share is equal to ½ of the decedent’s augmented estate
For the old rule, what is included in the augmented estate:
(i) Any property, other than tangible personal property, that the surviving spouse received from decedent, so long as owned or acquired by the surviving spouse at the time of the decedent’s death
(ii) Any property that the surviving spouse received by lifetime gift or non-probate transfer from the decedent and then transferred without economic consideration
(iii) Various transfers made by the decedent without economic consideration (retaining some sort of right or is within calendar year of death or proceeding 5 yrs to the extent that the total value of those transfers exceeds the annual exclusion for the federal gift tax.)
not included:
- property transferred by the decedent with the spouse’s written consent
- any amount that the decedent received by gratuitous transfer from someone other than the spouse, as long as the decedent maintained the property separately
What are the basic steps for determining elective shares under the new rules:
- determine augmented estate
- determine martial-property portion of the augmented estate (percentage based on yrs married)
- surviving spouse is entitled to half of marital property portion
Decedent’s augmented estate
(i) Everything decedent owned,
(ii) everything surviving spouse owns,
(iii) non-probate transfers made by the decedent (by reason of death)
(iv) Any property transferred by the decedent where the decedent retained an interest/right;
(v) Any property transferred within 2 yrs of death (during marriage)
(-) Any property transferred by the decedent to third parties is not included in the augmented estate if the decedent received full consideration for the property or if the surviving spouse joined in or consented to the transfer
The elective share is satisfied in the following order:
(1) Out of the marital-property portion of the surviving spouse’s property;
(2) Out of the full value of whatever property passes from the decedent to the surviving spouse through probate or non-probate transfers;
(3) On a pro rata basis, out of the probate and non-probate transfers to third parties.
