Wills Flashcards
What is proper jurisdiction for probate of a will?
A will is probated in the Circuit Court that sits within the city or county where (in descending order)
1. The decedent had a known place of residence
2. The decedent possessed real property
3. The decedent died
Wills Question from Lexbar
What happens if a decedent moves to a nursing home before death?
There is a rebuttable presumption that moving to a nursing home, voluntarily or involuntarily, does not change the place of residence
* Rebuttable by showing that the person really intended to move to the place where they went into a nursing home/other facility (e.g., changed address on driver’s license, registered to vote in jurisdiction, etc.)
Wills Question from Lexbar
How is a contract to make a will controlled?
By the same rules and principles (and is enforceable as any other contract)
* (1) In writing (2) signed by party against whom enforcement sought (3) clear and definite in terms (4) based on consideration and (5) proven by clear and convincing evidence
Wills Question from Lexbar
What is the remedy for breach of a contract to make a will?
Specific performance
Wills Question from Lexbar
If there is a conflict between the will and the contract to make a will, what controls?
The will controls only to the extent there is not a conlict
Wills Question from Lexbar
What are the requirements for a valid will?
It must be (1) in writing and signed or acknowledged by the testator in the presence of two competent witnesss, who are present at the same time and (2) the two witnesses must “subscribe the will in the presence of the testator”
* A self-proving affidavit is not required for a valid will (but is helpful)
Wills Question from Lexbar
If a will is NOT self-proving (i.e., there is no self-proving affidavit), what is required to establish requisites for execution?
The proponents will need to present testimony verifying the authenticity of the signatures and establishing requisites for due execution
* Witnesses may need to testify as to the testator’s capacity and intent
Wills Question from Lexbar
May out-of-state residents serve as executors for a Virginia decedent?
Yes, so long as they consent to service of process in VA and post a surety bond
* Must post bond even if waived by the will unless VA resident also qualifies as coexecutor along with her
Wills Question from Lexbar
When may a will be revoked by physical act by someone other than the testator?
When done at the direction of the testator and in the testator’s presence
Who does Virginia’s Anti-Lapse statute protect?
It will save a gift to a beneficiary who predeceases the testator only if the beneficiary was a grandparent or the descendent of a grandparent of the beneficiary
Feb 2019
What is an “executor?”
A personal representative that will administer the estate if named in the will
Feb 2014
What is an “administrator?”
A personal representative who administers the estate if appointed by the court
Feb 2014
Who has priority for appointment as administrator during the first 30 days?
(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
Feb 2014
Who will be appointed administrator if none is appointed within 30 days after decedent’s death?
The court may grant administration to first distributee who applies
* If more than one notifies of intent to qualify, all such distributees must be given opportunity to be heard before administration granted
* If nobody appointed after 60 days, clerk of court appoints creditor or any other person
Feb 2014
What is Virginia’s modified Dead Man’s Statute?
Provides that a witness who has an interest in the decendent’s estate may offer testimony as to statements made by the decedent, but only if there is some other evidence to corroborate that statement
Feb 2016
How can the presumption of revocation (for a lost will) be overcome?
A photocopy may be admitted for probate if there is clear and convincing evidence to establish the copy represents the testator’s last will and testament, and that it was not revoked
Feb 2016
What is a transfer on death deed?
A non-probate asset that transfers title immediately upon grantor’s death
* Conditional language (e.g., “if he survives me”) is allowed
* Supercedes provision of a will related to the specific real property
July 2018
What happens if a couple is divorced after the husband grants the wife a transfer on death deed?
Divorce revokes any transfer to a former spouse as designated beneficiary unless TODD expressly provides otherwise
When may a list disposing of tangible personal property be incorporated by reference into a will?
Where the writing is signed by the testator and describes the items and beneficiaries with reasonable certainty, the list may dispose of TPP not specifically bequeathed by the will itself
July 2018
What is needed for a valid holographic will?
(1) Signed (in such a manner as to make it manifest that the name is intended as a signature)
(2) Wholly in testator’s handwriting
(3) Testamentary intent and capacity (18 and no facts indicating lack of capacity–intent may be clear from langauge, like “last will and testament)
* MUST BE EVIDENT FROM FACE OF WILL–NO EXTRINSIC EVIDENCE
Two disinterested persons must testify will is wholly in testator’s handwriting
Feb 2019
What is needed to revoke a codicil or will by physical act?
(1) A “sufficient act” (2) with intent to revoke simultaenous with the act (3) performed by the testator or a proxy (at testator’s direction and in testator’s presence)
Feb 2019
When may a revoked will be revived?
When reexecuted with full testamentary formalities (i.e., either that required for a holographic or attested will)
Feb 2019
What happens if a pretermitted child dies under age 18 and there is an undistributed balance of their share of the estate?
If not married and without issue, their share (or as much as remains) reverts to the person to whom it was given by the will
Feb 2020
What must an executor do with regard to any share of the estate to which a child is entitled?
(1) Petition court to have guardian of estate appointed to manage property passing to child (i.e., cannot simply be simply passed to legal guardian)
(2) Guardian must post bond, unless will waives
(3) Guardian must provide list of heirs at the time of qualification, file inventory within 4 months of appointment, and file accounting within 16 months of qualification and annually thereafter
Feb 2020
What is the pretermitted child rule and when does it apply?
Applies when a child is born or adopted after the testator executed his will, the child will take:
* If no other children, his intestate share
* If other children, takes LESSER of: (a) intestate share or (b) amount equal to largest bequest made to any of the testator’s other children
July 2021
What is the effect of a pretermitted child who is a testator’s only heir?
He takes everything–all other gifts are revoked by operation of law since he gets his intestate share
* If under 18, court must appoint guardian of estate and sitribute property to that person on behalf of the child
July 2021
