Virginia Wills Flashcards
Testate
Person dies with valid will
Intestate
Person dies without a valid will
Intestacy rules do this:
These are default rules directing property to heirs
Partial intestacy
This either has 1) no residuary clause and the will does not make complete disposition; or 2) residuary clause is ineffective
Testacy/intestacy rules govern this:
Property in the decedent’s personal estate is governed by these:
Heir must survive decedent for how long?
This person must survive 120 hours beyond decedent to be one:
What is the burden for establishing an heir’s survival of the decedent?
This is established by clear and convincing evidence by the heir
Jointly owned property with right of survival ship is treated how for survival?
This property is divided among co-tenants who die w/in 120 hours
Survival requirement does not apply if:
This requirement does not apply if 1) governing instrument clearly provides for different result; or 2) property would escheat to Commonwealth
An adopted child becomes child of adopting parent and is no longer what?
This person is no longer a child of biological parents
A child conceived via assisted conception is whose child?
This child is the child of a person who consented in writing before conception to be parent
When must a child conceived via assisted conception be born for a parent?
This child must be born during person’s lifetime or w/in 10months after death
Child born out of wedlock is:
This is always the child of biological mother; and child of biological father if 1) bio parents participate in marriage before or after birth; or 2) paternity established by clear & convincing evidence
Child born out of wedlock seeking to inherit must do what?
This person must seek an adjudication of parentage w/in one year of parent’s death, unless parentage is established (birth certificate, prior concluded parentage process, deceased’s admission of parenthood before court/in writing under oath
Termination of Parental Rights does what with regards to takings?
This terminates their right to take from or through the child, but leaves the child’s own ability to take from or through
Heirs related to decedent through two relationships is only:
An heir with this is only entitled to the larger share of inheritance
Afterborn heirs inherit this way
These people are treated as if they had been born during decedent’s lifetime
Will designates per stirpes share calculation:
Descendants take deceased ancestor’s share in equal portions, 1st divided into # of ancestor’s surviving children/descendants
Intestate or will silent share calculation:
Per capita with representation among descendants
Slayer statute bars:
This bars inheritance by this person if: 1) convicted of murder/voluntary manslaughter of Defendant or 2) party barring demonstrates by preponderance of evidence murder/voluntary manslaughter, if acquitted for insanity
Slayer for the slayer statute is treated as what?
This person is treated as predeceasing the victim, and applies to intestacy/wills/nonprobate transfers
Refusing to accept interest with spendthrift restriction may be done how?
This may be done by writing a declaration of disclaimer describing the interest, signed by the disclaimant, and delivered to executor/administrator or court
Disclaimer of interest with spendthrift restriction can defeat what?
This can be used to defeat creditors’ claims but not federal tax liens
Protection against Disinheritance: Family Allowance
Supplements with reasonable allowance of money for support during administration of estate (up to $24k lump or $2k per month, unless petitioned for by surviving spouse/minor children)
Family Allowance exception holds priority over what (limited by time)?
This protection against disinheritance has 1 year priority over all other claims against estate except admin expenses and costs (or longer if estate is insolvent)
Protection against Disinheritance: Exempt Property
Entitles SS (or minor children in equal shares) to up to $20k value of property (household furniture, automobiles, furnishings, appliances, personal effects)
Exempt property exception holds priority over what?
This protection against disinheritance does not defeat security interests held by creditors, hold priority over everything but family allowance; less than $20k after creditors take may permit other property to fall within the protection
Protection against Disinheritance: Homestead Allowance
Entitles SS (or minor children as group) to $20k
Homestead Allowance holds priority over what?
This protection against disinheritance holds priority over all claims except family allowance and exempt property
Homestead Allowance (up to $20k) may be claimed in lieu of what?
This may be claimed in lieu of a share of will/intestacy, or in amount up to $20k if share is less
When can both the elective share and homestead allowance be claimed?
These can both be claimed if decedent died in 2017 onward
When can only the elective share or homestead allowance be claimed?
Only one of these may be claimed if decedent died before 2017
Protection against Disinheritance: Method of Election
These may be claimed w/in 1 yr of decedent’s death
Protection against Disinheritance: Waiver
SS may do this to a claim from a marital/premarital agreement; SS may do this to the homestead allowance with signed writing, conspicuously mentioning it
Protection against Disinheritance: Principal Family Residence
This may pass by intestacy, or SS can choose the elective share; SS occupy this without charge while rights are determined
Protection against Disinheritance: SS Deprived of Use of Family Residence
SS may petition the Court for such rights, or compensatory damages if this occurs
The Elective Share (augmented estate) does what?
This protection against disinheritance gives SS right to claim a significant portion of estate and nonprobate transfers
Amount of Elective Share
1/2 the value of marital property portion of the augmented estate
If deceased spouse does not name SS in a will or dies intestate, what may the SS claim?
An SS can always claim an elective share of the deceased spouses’ augmented estate, regardless if:
Augmented Estate is made up of these components
Net probate estate + Nonprobate transfers to SS + Nonprobate transfers to others + SS property and transfers to others = ?
Net probate estate
Probate Estate - (funeral/admin expenses + homestead allowance + family allowance + exempt property + enforceable claims)
Nonprobate transfers to SS (life insurance)
All property transferred from decedent to SS because of decedent’s death, not passing by will/intestacy
Nonprobate transfers to others (right of survivorship)
Property transferred to anyone other than decedent’s estate or SS by nonprobate transfer, transfers where decedent retained right of possession/enjoyment, gifts in excess of federal gift tax “annual exclusion” w/in 2 years
SS property and transfers to others
Property owned by SS at time of decedent’s death
Marital property portion of augmented estate: >1 year
3% of augmented estate
Marital property portion of augmented estate: 1-10 yrs
(# yrs * 6) %
Marital property portion of augmented estate: 11-14
(60 + (years over 10 * 8)) %
Marital property portion of augmented estate: 15 or more
1
Augmented estate excludes property if:
If a decedent received full consideration or spouse joined in or consented in writing to the transfer, property can be what?
Elective share is paid how?
This is paid first from SS property then decedent’s probate and nonprobate transfers to others
Elective share is claimed when?
This must be claimed no later than 6 months after will is admitted to probate/administrator is qualified
If a SS willfully deserts and continues to do so until decedent’s death, what may occur?
SS is barred from taking under intestate succession, elective share, exempt property, family allowance and/or homestead allowance if they do this:
SS takes how much of intestate’s probate assets if there are children not born of SS?
SS takes 1/3 of probate assets in this scenario; otherwise 100%
Who takes intestate’s probate assets if there is no surviving spouse or descendants?
Intestate’s probate assets go to the parents; or if no parents, siblings and their descendants; or if none available, then a paternal and maternal side (grandparents->aunts/uncles->great grandparents->siblings of grandparents)
Escheat
When descendant has no surviving kin, property does this to the Commonwealth
“Laughing Heir” Statute
This statute allows relatives to inherit, regardless how remote
Children take all decedent’s probate assets in equal shares if:
Probate assets are distributed this way if no children predecease decedent or no predeceased child leaves descendants
Modern per stirpes: Intestate survived by children
Estate divided one share per surviving child and one share for predeceased child leaving descendants
Modern per stirpes: Intestate not survived by children
Estate divided one share at first generation of surviving descendant and one share of each deceased descendant in the generation
Half-bloods receive how much of an intestate share?
This person receives one half of a similar intestate share
Half blood can only apply to whom?
This type of share only applies to collateral kin, not descendants or ancestors
Half blood does not limit or reduce what?
This does not limit their claim if there are no other takers of the estate, nor does it reduce the share if they are the only members of a class entitled to take
Adopted children keep inheritance rights from natural and adoptive parents if:
Adopted children keep these if either adopted by the spouse of a natural parent or parental rights are involuntarily terminated
Adopted children versus step/foster children
This group shares inheritance rights as if a natural child versus this group has no inheritance rights (typically)
Step/foster children may receive interest in decedent’s estate when:
This person may receive interest of estate if decedent dies intestate leaving no descendants, no paternal/maternal kin, and no SS
Substantial gifts from decedent to Heir during Heir’s lifetime may do what?
These may be considered advancements that offset what would have been received in intestacy
If Heir receives an advancement greater than share of intestacy, he may:
If this occurs, the heir may elect to retain the advancement and forego the intestate share
Attested Will requirements, generally
1) in writing and; 2) signed by testator; or 3) acknowledged in presence of 2 witnesses present at the same time
Will signature may be:
Any mark may constitute this, and may either be done by the testator or by proxy at the testator’s direction and in her presence
Witnesses must sign a will:
These must sign in the presence of the testator but not each other
Witnesses are not rendered incompetent by reason of:
These are not rendered incompetent by reason of any interest in the will/estate
Conscious presence test - Witness is present if:
As long as testator is aware of their presence & action, and would be able to see them if tried
A codicil does this:
This amends a prior will and reexecutes it with will formalities as of the date
Execution of a codicil does what as of its date?
This re-executes a will (even if revoked) as of the date, and governs children and spouse protected for omitted child/spouse provisions
Incorporation by reference of documents not present when will was executed:
These must 1) exist at the time of the will; 2) will indicates their existence at the time; and 3) identified and described with reasonable certainty in the will
A written Tangible Personal Property list for disposal of assets requires:
This 1) must be referred to in the will; 2) must describe the items and identity of recipients with reasonable certainty; 3) signed by the testator; and 4) must not be otherwise devised in the will
Holographic Will: Requirements
This must be 1) wholly in testator’s handwriting; 2) signed by the testator; 3) manifest testamentary intent; and 4) 2 disinterested witnesses must be able to identify the handwriting
Holographic Will: what is not handwriting?
Typewritten words/slight alterations do not invalidate; these types of words must be able to stand alone
Holographic Will: Testamentary intent reqiurement
The will must, on its face, express the testator’s this
Disinheriting heirs at law (negative wills?)
A will cannot do this without giving property to someone else; may execute a testamentary instrument that appoints executors
Pour-over trust - will requirements:
To properly devise assets to this, it must 1) be sufficiently identified and the will; and 2) set forth terms in a separate written instrument to the will
Transfer on Death Deed may:
This may specify a beneficiary of real property at owner’s death
Transfer on Death Deed: Requires
This must be recorded in the Circuit Court where property is located, and is revoked on divorce/annulment unless specifically providing otherwise
Contracts to give property by will are:
This is enforceable if a valid contract
Oral agreements to devise real property are enforced when:
1) agreement is certain & definite (est. by clear & convincing evidence); 2) party seeking enforcement performed; and3) failure to perform would work a fraud upon the party
Devise of property subject to will has what imposed on it to ensure performance?
A constructive trust is imposed on this to ensure performance
Guardian of the estate must do this to manage property passing to a beneficiary:
This must 1) post bond (unless will waives); 2) provide a list of heirs at time of qualifications; 3) file an inventory in four motnshs
When the intestate is survived by a spouse and children/descendants not of the spouse:
The spouse’s share of the intestate’s estate is 1/3 when these are present
If a decedent dies intestate, Virginia law directs property distribution this way:
Virginia law directs property among descendants as per capita with representation when this happens
A gift causa mortis can be revoked if:
This kind of gift is revoked if the donee dies before the donor
Who bears the burden of proof for a testamentary capacity challenge?
The proponent of the will bears this type of burden in a testamentary capacity challenge
How can a presumption of capacity be created in a testamentary capacity challenge?
The proponent of a will can create this by demonstrating that the testator complied with the formal requirements of execution
An issue of testamentary capacity requires what standard of proof?
A preponderance of the evidence is the standard of proof for this type of issue
What happens to the burden of production and burden of persuasion once a presumption of capacity has been established?
The burden of production shifts to the will-contestant going forward with evidence but the burden of persuasion remains with the will-opponent once this is established
What does a no contest clause in a will do? (enforceable in Virginia)
This clause in a will penalizes a beneficiary who contests the will (enforceable in Virginia)
The distribution of a disclaimed interest in a device, pursuant to Virginia’s anti-lapse statute does this:
Under this statute, if the deceased beneficiary is a grandparent/descendant of grandparent of testator, the gift is presumed in favor of the deceased beneficiary’s descendants who survive the testator
A disclaimed interest in a devise passes:
This type of interest passes as if the beneficiary predeceased the testator
Post Jan. 2017, the amount of the elective share is:
For deaths on or after Jan. 17, this is one-half the value of the marital-property portion of the augmented estate
The elective share contemplates these two things, but not this:
This contemplates property such as that which passes by right of survivorship and life insurance proceeds, but not depend on survival of children
If a testator’s will fails to provide for a surviving spouse who married the testator after execution, what do they receive?q
This person receives an intestate share of the testator’s estate unless it appears from the will or provisions of a marital agreement that the omission was intentional.
A third party can revoke a will on behalf of a testator if:
This person can revoke a will on behalf of a testator as long as it is at the testator’s 1) direction and 2) in their presence
A person must survive the decedent how many hours before he can inherit as an heir or beneficiary?
A person must survive a decedent by 120 hrs before what can occur?
A person who is convicted of murder/manslaughter of decedent is what with regards to decedent’s property?
To the extent this person had an interest in the decedent’s property, this bars them from taking property because of the decedent’s death
Document for Incorporation in a will must do this:
This must be 1) referred to as one that is in existence at time of testator’s death; 2) prepared before/after execution of the will; 3) altered (signed) by tesator at any time; and 4) writing has no significance apart from effect of disposition for will
A life estate may be what for a will?
This type of property interest may be created by implication as well as by explicit language, provided will shows requisite intent
A holder of a life estate is entitled/required to what?
This person is entitled to exclusively live on the property, and use the property in any manner that does not interfere with the remainder, including paying taxes on the property.
Contract to make a will is enforceable if:
This is enforceable if it is 1) certain and definite 2) based on valuable consideration; 3) proved by clear and convincing evidence
Contract for to make will for real property also requires:
This is an enforceable contract for will if it is in writing, and at least signed by decedent
Where to Probate: Preference List
1) Where decedent resided; 2) Where decedent owns real estate; 3) Where decedent died
After moving to a nursing home, Decedent’s place of legal residence for probate:
This is same city or county as before moving into nursing home
Where is a will probated:
This for a will is done in Circuit Court
Non-resident Trustee
This may qualify and act as trustee under a will probate proceedings
Executing a Will not wholly in testator’s handwriting (minimum)
To do this, the minimum requirements are: 1) signed/acknowledged by testator and 2) two witnesses present when signed and acknowledged, and sign themselves
If a will lacks a self-proving affidavit or these provisions, what must occur?
If this is missing, then witnesses must testify in court for it to be admitted to probate.
Valid contracts do this to wills:
These supersede valid wills on any terms where they conflict.
To be entitled to probate, a will must:
For this to occur, a will must be duly executed.
A duly executed will is a will that:
This must be 1)signed/acknowledged 2) in presence of 2 competent witnesses, 3) present together at same time 4) and who sign in presence of testator.
If a will lacks a self-proving affidavit/self-proving provisions, what must occur for it to be admitted to probate?
Both witnesses who signed the will must testify in court if the will lacks these to admit to probate; may sub deposition if witness unavailable for good cause shown
Revocation of Will: Subsequent Instrument
A written revocation of will can be express/implied from terms; revokes all codicils
Revocation of Will: Inconsistency
A later document controls and revokes prior inconsistencies
Revocation of Will: Signed Writing failing Will requirements
This will revoke a will if clear and convincing evidence demonstrates intent of testator to revoke
Revocation of Will: Physical Act
May be partially/completely revoked with physical act of testator (or 3rd party at direction and in presence of testator) with present intent to revoke (cannot be accidental); cancellation via pen/pencil requires physical act to touch words
Revocation of Will: Divorce/Annulment
This revokes any provision in favor of former spouse
Revocation of Will: Dependent Relative Revocation
This is disregarded if the revocation was conditioned on effectiveness/validity of new will.
No revival of will following express revocation
Estate passes by intestacy in this revocation scenario
Lost wills create this presumption:
A rebuttable presumption arises that decedent destroyed will w/ intent to revoke
Oral revocation of a will is:
This is not valid
Revocation of a will may be done by:
This may be done b y express/implied terms of subsequent written instrument; applies to codicils, with subsequent doc governing inconsistenciesT
Two executed copies of a will are duplicates that may:
Duplicates may be admitted to probate; photocopies may not, but can illustrate testamentary intent
Antilapse of gift under will only applies when:
This is only applies when the beneficiary is a grandparent; VA presumes gift in favor of surviving descendants
If a testator makes a class gift and one member of class predeceases testator:
When this occurs, the antilapse statute does not apply and the remaining members of class share gift
If specific purpose of gft to charity cannot be achieved
The court may invoke doctrine of cy pres to reform gift to carry out general intent of testator
Ademption by extinction (think Identity Theory)
If specific property of a specific devise is gone, then it is this and devisese has no interest in the specific property (ask if specifically devised property is part of decedent estate)
Exceptions to ademption by extinction (unless contrary to intention of will)
These include bequests of specific securities, condemnation award of devised property, or the net value of specifically devised property while testator incapacitated
A lifetime gift may adeem a beneficiary’s interest by satisfaction if:
This may occur if will expressly deducts lifetime gift, contemporaneous writing by testator states gift is in satisfaction, or devisee acknowledges gift is in satisfaction in writing
Unless contrary to intent of will, specficic bequest remain subject to:
These remain subject to liens existing at death of testator, general directive to pay debts not contrary intent
Order of abatement for personal property (all personal property abates before this)
This proceeds before real property (RP only if insufficient to pay): 1) prop passing by intestacy, 2) prop passing under residue of will, 3) general bequests, 4) demonstrative bequests, 5) specific bequests
Facts/circumstantial evidence are admissible if:
These are admissible if will is ambiguous, always admissible to help explain words of testator, and can include all relevant evidence except statements by testator to testamentary intent
Even if unambiguous, a Court may reform terms of decedent’s will when:
When clear and convincing evidence that decedent’s intent and terms of will were affected by mistake of fact/law:
Testamentary capacity is sufficient that at time executed his will, testator was:
For this, testator was capable of recollecting property/natural objects of his bounty, and their claims upon him , and knew the business he was engaged and how he wished to dispose of property
Insane Delusion does not do this:
This does not affect capacity to execute valid will unless the will was a product of this
Mental capacity of testator must be proven by:
This must be proven by a preponderance of the evidence; need not be legally capable to transact other business
Undue influence is:
These are measures taken that testator could not resist, that controlled testator, and induced testator to act as he would not otherwise
Clear and convincing evidence; burden of production for contestants of will for undue influence shift burden to:
This is shifts proponent of will by showing: 1) Testator suffered from weakness of mind when wl was made, 2) named a beneficiary in relationship of confidence/dependence, and 3) previously expressed intention to make contrary disposition.
Public policy limits on Will:
No conditions that infringe on religious beliefs/unreasonably limit ability to marry; “no contest” provison generally enforced
A will is procured by fraud if:
This occurs if wrongdoer misrepresetned material fact to testator and intended to deceive testator to influence them to make disposition would not otherwise make
