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VA BAR EXAM > WILLS > Flashcards

WILLS Flashcards

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1
Q

For the purposes of probate, a decedent’s presumed place of legal residence after moving into a nursing home is

A

The same city or county as before he moved to the nursing home

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2
Q

Which court has jurisdiction over the probate of wills?

A

The Circuit Courts

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3
Q

T or F: A non-resident of the Commonwealth may qualify and act as trustee under a will in probate proceedings within the Commonwealth.

A

True

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4
Q

What must an out of state representative do in order to qualify and act as trustee under a will in probate proceedings?

A

Post a bond and consent to service of process in VA

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5
Q

What are the minimum requirements for validly executing a will that is not wholly in the testator’s handwriting?

A

1) Will must be signed or acknowledged by the testator; and
2) Two witnesses must be present when the will is signed or acknowledged

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6
Q

A contract to make a will is enforceable if:

A

1) it is certain and definite as to its terms
2) based on valuable consideration
3) proved by clear and convincing evidence
4) if it involves real estate it must be in writing and signed by the decedent

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7
Q

A decedent’s will shall be probated in the County or City where:

A

Ordered in priority:
1) the decedent has a known place of residence;
2) the decedent owns real estate;
3) the decedent died

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8
Q

A contract to make a will is controlled by

A

the same rules and principles and is enforceable as other contracts

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9
Q

To the extent that the Will does not conflict with the terms of the contract, the terms of the _____ controls

A

Will

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10
Q

What is the available remedy for breach of a contract to make a will?

A

Specific Performance

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11
Q

When does intestacy apply?

A

1) No will
2) Denied Probate
3) Have not disposed of all of their property by will

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12
Q

What share goes to the surviving spouse in Virginia?

A

No descendants =100%
Descendants, all same parents = 100%
Descendants, at least one not from surviving spouse= 1/3

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13
Q

What is the general rule of order for intestate succession in Virginia?

A

1) descendants
2) parents
3) descendants of parents
4) 1/2 to maternal grandparents and their descendants and 1/2 to paternal grandparents and their descendants
5) Next of kin

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14
Q

In Virginia, will a court honor a negative disinheritance provision in a will?

A

No, unless there is a complete disposition of property through the will

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15
Q

What is per capita with representation?

A

Start calculating shares in the generation below the decedent with a living member

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16
Q

What inheritance rights does a legally adoptive child have?

A

The same as a natural born child

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17
Q

In VA, a half blood sibling takes

A

only 1/2 of what a full sibling would take

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18
Q

What is an advancement?

A

an advance payment of intestate share

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19
Q

In Virginia, there is a presumption that a life time transfer is an

A

advancement

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20
Q

How do you compute shares with an advancement?

A

1) add advancement back
2) Calculate shares
3) subtract advancements
4) check math

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21
Q

To be valid in Virginia, a disclaimer of inheritance must

A

1) be in writing
2) declare the disclaimer
3) describe property to be disclaimed
4) be signed
5) be delivered

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22
Q

To be valid and admissible to probate, the will or codicil must meet Virginia’s formalities, which are:

A

1) be in writing
2) signed by the testator
3) in the joint presence of 2 attesting witnesses
4) signed by 2 attesting witness in the testator’s presence

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23
Q

What are the three types of will revocation?

A

1) revocation by operation of law
2) revocation by subsequent instrument
3) revocation by physical act

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24
Q

What are the types of revocation by operation of law?

A

1) marriage- will executed before marriage that does not include spouse unless proof of intentional omission
2) final divorce - all provisions in favor of ex-spouse are void
3) pretermitted child

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25
Q

How can a will be revoked by physical act?

A

BTCOD
1) Burning
2) Tearing
3) Cancelation
4) Obliteration
5) Destruction

by testator or at testator’s request in testator’s presence

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26
Q

What does Virginia’s Anti-Lapse statute provide?

A

If the predeceasing beneficiary is a grandparent or lineal descendant of testator’s grandparents, the predeceased beneficiary’s descendants are substituted as takers

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27
Q

In Virginia, if a residuary gift lapses and the anti-lapse statute does not apply, who takes the deceased beneficiary’s share?

A

The residuary beneficiaries who survive the testator take the deceased beneficiaries share in proportion to their interest in the residue.

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28
Q

What is testamentary capacity?

A

At the time of executing the will, a testator must:
1) be at least 18 years old
2)understand nature of the act
3) know nature, extent, and condition of property
4) know the names of and their relationship to the natural objects of bounty
5) understand the scope and meaning of the will provisions

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29
Q

What must a contestant prove to show undue influence?

A
  1. Existence and exertion of influence that
  2. Overpowered testator’s mind and free will; and
  3. Will or disposition would not have been made but for the influence
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30
Q

What is ambiguity?

A

Reasonably susceptible to alternate meaning

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31
Q

What is probate?

A

Legal proceeding to determine validity of will or intestate heirs

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32
Q

To claim an elective share, the spouse of the decedent must

A
  1. file a notice of election within six months from the admission of the will to probate or, if none, from the appointment of an administrator
  2. file the complaint to determine the elective share no later than six months after filing the notice of election
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33
Q

What is the augmented estate?

A
  1. net probate estate
  2. nonprobate transfers to third parties
  3. nonprobate transfers to surviving spouse
  4. surviving spouse’s property and nonprobate transfers to others
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34
Q

What are nonprobate transfers to third parties that are included in the augmented estate?

A
  1. property that has passed outside probate
  2. property transferred by decedent during the marriage
  3. property that passed during the marriage and during the two-year period before the decedent’s death
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35
Q

What property is NOT included in the augmented estate?

A
  1. transfers to third persons BEFORE marriage
  2. transfers with written consent or joinder of surviving spouse
  3. property acquired by gift, will, transfer in trust, intestate succession, or other separate property
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36
Q

By statute, what is the maximum allowance that may be distributed by a personal representative to the spouse or children whom the decedent was legally obligated to support?

the family allowance

A

not in excess of $24,000 without court approval

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37
Q

What is the homestead allowance?

A

the surviving spouse (or minor children if no spouse) are entitled to a homestead allowance of $20,000, which has priority over all claims other than family allowance and exempt property.

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38
Q

What is the surviving spouses elective share?

A

50% of the value of the marital property portion of the augmented estate

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39
Q

What grounds will a will be denied admission to probate?

A
  1. not properly executed
  2. lack of testamentary capacity
  3. undue influence
  4. fraud
  5. mistake
  6. valid revocation
40
Q

What is the requirement for standing to contest a will?

A

a person has standing to contest a will if they have a pecuniary interest that will be impaired by the will’s admission to probate

41
Q

When does a presumption of undue influence arise?

A

If it is proved by clear and convincing evidence that the testator:
1. suffered from weakness of mind;
2. named a beneficiary with whom the testator had a dependant relationship; and
3. either previously expressed a contrary intention or previously expressed no intention regarding the disposition of their property

42
Q

When is there a presumption of fraud as to the validity of a will?

A

if the will was drafted by a person in a confidential relationship with testator, and there are suspicious circumstances

43
Q

What are the elements of fraud for purposes of will contests?

A
  1. false representations that the speakers knows to be false;
  2. intent to deceive;
  3. the other party’s ignorance of the falsity; and
  4. reliance on the false representations that induced the party to act to their injury
44
Q

In Virginia, the will can be reformed if it is proven that the will or its terms were

A

induced by mistake

45
Q

What is a latent ambiguity?

A

when the language of the will is clear on its face in describing a beneficiary or property, but results in a misconstruction when applied

46
Q

If extrinsic evidence does not resolve a latent ambiguity, what is the result?

A

The gift fails

47
Q

What is a patent ambiguity?

A

uncertainty appears on the face of the will

48
Q

The testator’s desclarations are admissible for patent ambiguities only if there is an

A

equivocation: when words in a will describe two or more persons or things equally well

49
Q

What is a no-contest clause and how does it operate?

A

A no-contest clause provides that any person who contests a will forfeits their interests under the will. However, if the contestant is successful, the no-contest clause fails along with the will.

50
Q

Which nonprobate assets are included in the estate’s inventory?

A
  1. the decedent’s interest in joint accounts
  2. entire payable on death accounts
  3. entire Totten trusts
51
Q

When do nonprobate assets become part of the decedent’s probate estate?

A
  1. the probate estate is insufficient to pay debts, taxes, and administration expenses
  2. an action is brought by the surviving party within two years after the decedent’s death
52
Q

In Virginia,

When is a person presumed dead?

A

if they have been absent from Virginia and have not been heard from for at least 7 years

53
Q

In Virginia,

a person on board a ship or aircraft who disappears at sea is presumed dead after

A

six months or a determination by a board of inquiry, whichever occurs first

54
Q

What is the time limit for offering a will for probate?

A

there is no time limit

55
Q

A bona fide purchaser of real property from an heir or a devisee under a prior will is protected if

A

a current will is not offered for probate within one year after the testator’s death

56
Q

a personal representative named in a will is an

A

executor

57
Q

a personal representative appointed by the court is an

A

administrator

58
Q

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

A
  1. a sole distributee or their designee; or
  2. any distributee, or their designee who presents written waivers of the right to qualify from all other competent distributees
59
Q

What is a curator?

A

a temporary personal representative

60
Q

What are the duties of a personal representative?

A
  1. marshalling decedent’s assets
  2. giving notice to creditors and paying valid claims
  3. filing decedent’s tax forms
  4. winding up decedent’s affairs
  5. distributing remaining assets according to will or intestate statutes
61
Q

How long does the personal representative have to file inventory of the decedent’s estate?

A

within 4 months of their appointment

62
Q

What is the order of abatement?

A
  1. personal property passing by intestacy
  2. personal property in the residuary estate
  3. general legacies, which abate pro rata
  4. specific and demonstrative bequests of personal property
  5. then real property in the same order
63
Q

What is the rule related to desertion or abandonment of a spouse?

A

If a spouse willfully deserts or abandons the other spouse and the desertion continues until the abandoned spouse’s death, the deserting spouse is barred from all statutory rights in the estate.

64
Q

What are descendants?

A

people related to the decedent in a direct line such as children and grandchildren

65
Q

A parent is disqualified from inheriting if that parent

A

willfully deserted their minor or incapacitated child, and the desertion continued until the child’s death

66
Q

What is the No “Laughing Heir” statute?

A

cuts off inheritance rights of more remote relatives

67
Q

The estate escheats to the Commonwealth only if

A

there are no heirs of the decedent or their spouse

68
Q

To disinherit someone, the testator must

A

make a complete disposition of their estate by will

69
Q

For purposes of inheritance,

the natural father is considered to be the parent of a nonmarital child only if:

A
  1. the father married the mother before or after the child’s birth; or
  2. it is established by clear and convinving evidence that:
    1. the man openly cohabitated with the mother during her entire pregnancy
    2. the man consented to be named on the child’s birth certificate;
    3. the man allowed the child to use his surname
    4. the man claimed the child on tax return
    5. adjudged the father in a paternity suit and/or ordered to pay child support
    6. admitted paternity in court or in writing under oath
    7. genetic tests establish paternity
70
Q

For inheritance purposes,

a child conceived by artificial reproductive technology is the child of the person who consented to being a parent in writing before the conception if

A

the child is born within that person’s lifetime or within 10 months of that person’s death

71
Q

To take as an heir, a person must survive an intestate decedent by

A

120 hours

72
Q

A valid disclaimer must:

A
  1. be in writing or other record
  2. declare the disclaimer
  3. describe the interest being disclaimed
  4. be signed by the disclaiming party
  5. be delivered to the personal representative of the estate
73
Q

A copy of a disclaimer of real property interest must be

A

recorded in the county where the land is located

74
Q

In Virginia,

the right to disclaim interest is barred if

A

the beneficiary or heir:
1. accepts the property or any of its benefits;
2. enters into a contract for the property’s sale; or
3. assigns or mortgages the interest

75
Q

What reasons would a decedent’s heirs disclaim?

A
  1. burden
  2. creditors
  3. change of circumstances
76
Q

What is the slayer statute?

A

A person convicted of or determined by a preponderance of evidence to have committed murder or voluntary manslaughter forfeits all interests in the victim’s estate

77
Q

Does the anti-lapse statute apply to any interest bequeathed to the slayer?

A

Yes, the slayer’s descendants are substituted as takers

78
Q

What may be imposed on property received by a beneficiary or heir who participates in the willful and unlawful killing of another?

A

a constructive trust

79
Q

What is a codicil?

A

a testamentary instrument that amends, supplements, or revokes a will

80
Q

The testator must have present testamentary intent, meaning that the testator must

A
  1. intend to dispose of property
  2. intend for that disposition to happen at the time of death
  3. intend that this instrument accomplish that persone
81
Q

In Virginia,

is the testator required to sign at the end of the will?

A

No

82
Q

For a will to be valid, the testator must

A
  1. be at least 18 years old
  2. have testamentary intent
  3. have testamentary capacity
  4. validly execute the will
83
Q

What is the conscious presence test?

A

The witnesses sign “in the testator’s presence” if the testator is aware of where they are and what they ae doing, and if the testator could see them by a slight physical exertion on the testator’s part.

84
Q

T or F: In Virginia, witnesses do not need to know they are signing a will

A

True

85
Q

In Virginia, is a person disqualified as a witness solely because they have an interest in the will or the estate of the testator?

A

No, an interested witness does not forfeit their interest

86
Q

In Virginia, can beneficiaries of a negligently prepared or executed will sue an attorney for negligence?

A

No, VA is a “strict privity” state which means that only the client who contracted for an attorney’s services can sue for negligence

87
Q

Where there is no self-proving affidavit or provision, the witness must

A

testify for the will to be admitted to probate

88
Q

In Virginia, formal requirements may be dispensed with if

A

the proponent of the will establishes by clear and convincing evidence that the decedent intended the document to constitute their will

89
Q

Can dispensing power be applied to cure the failure of the will or codicil to be in writing?

A

No

90
Q

In what two situations will the dispensing power apply to the absence of the testator’s signature?

A
  1. there is a “switched will” caser, and two persons mistakenly sign each other’s will; or
  2. the testator signs the self-proving affidavit but not the will itself
91
Q

In Virginia, can notarization substitute for witness attestation, and if not, how can the will be saved?

A

No, VA does not allow notarization to substitute for witness attestation, but the dispensing power may be applied to save the will.

92
Q

What are the requirements for holographic wills?

A
  1. testamentary capacity
  2. present testamentary intent
  3. wholly in testator’s handwriting
  4. signed by testator
93
Q

If a will beneficiary dies during the testator’s lifetime, the gift “lapses” or fails. The person who receives the lapse gift is controlled by (in order)

A
  1. express terms of the will;
  2. applicable anti-lapse statute;
  3. residuary clause; then
  4. intestacy statute
94
Q

What is a general legacy?

A

A bequest of a dollar amount that is payable out of the general assets of the estate without a claim on any particular source of payment.

95
Q

What is a demonstrative legacy?

A

a gift of a general amount that identifies a particular asset as the primary source of payment

96
Q

For a document to be incorporated by reference in a will, it must

A
  1. be in existence at the time the will is executed
  2. be referred by the will as being in existence
  3. be identified and described in the will with reasonable certainty.

VA BAR EXAM (15 decks)

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