Wills

Question 1

What is proper jurisdiction for probate of a will?

Answer 1

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

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Question 2

What happens if a decedent moves to a nursing home before death?

Answer 2

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.)

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Question 3

How is a contract to make a will controlled?

Answer 3

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

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Question 4

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

Answer 4

Specific performance

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Question 5

If there is a conflict between the will and the contract to make a will, what controls?

Answer 5

The will controls only to the extent there is not a conlict

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Question 6

What are the requirements for a valid will?

Answer 6

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)

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Question 7

If a will is NOT self-proving (i.e., there is no self-proving affidavit), what is required to establish requisites for execution?

Answer 7

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

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Question 8

May out-of-state residents serve as executors for a Virginia decedent?

Answer 8

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

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Question 9

When may a will be revoked by physical act by someone other than the testator?

Answer 9

When done at the direction of the testator and in the testator’s presence

Question 10

Who does Virginia’s Anti-Lapse statute protect?

Answer 10

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

Question 11

What is an “executor?”

Answer 11

A personal representative that will administer the estate if named in the will

Feb 2014

Question 12

What is an “administrator?”

Answer 12

A personal representative who administers the estate if appointed by the court

Feb 2014

Question 13

Who has priority for appointment as administrator during the first 30 days?

Answer 13

(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

Question 14

Who will be appointed administrator if none is appointed within 30 days after decedent’s death?

Answer 14

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

Question 15

What is Virginia’s modified Dead Man’s Statute?

Answer 15

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

Question 16

How can the presumption of revocation (for a lost will) be overcome?

Answer 16

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

Question 17

What is a transfer on death deed?

Answer 17

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

Question 18

What happens if a couple is divorced after the husband grants the wife a transfer on death deed?

Answer 18

Divorce revokes any transfer to a former spouse as designated beneficiary unless TODD expressly provides otherwise

Question 19

When may a list disposing of tangible personal property be incorporated by reference into a will?

Answer 19

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

Question 20

What is needed for a valid holographic will?

Answer 20

(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

Question 21

What is needed to revoke a codicil or will by physical act?

Answer 21

(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

Question 22

When may a revoked will be revived?

Answer 22

When reexecuted with full testamentary formalities (i.e., either that required for a holographic or attested will)

Feb 2019

Question 23

What happens if a pretermitted child dies under age 18 and there is an undistributed balance of their share of the estate?

Answer 23

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

Question 24

What must an executor do with regard to any share of the estate to which a child is entitled?

Answer 24

(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

Question 25

What is the pretermitted child rule and when does it apply?

Answer 25

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

Question 26

What is the effect of a pretermitted child who is a testator’s only heir?

Answer 26

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