Wills

Question 1

When does Intestate Succession rules apply?

Answer 1

(1) the decedent left no will
(2) the decedent’s will is denied probate, or
(3) the decedent left a will but the will does not make a complete disposition of the estate

Question 2

If a decedent is survived by a spouse but no descendants, who takes what?

Answer 2

The surviving spouse inherits the entire estate

Question 3

If the decedent is survived by descendants, all of whom are also descendants of the surviving spouse, who takes what?

Answer 3

The surviving spouse inherits the entire estate

Question 4

If the decedent is survived by descendants, at least one of whom was not the surviving spouse’s descendant, who takes what?

Answer 4

Spouse inherits one-third of the estate, and the other two-thirds passes to the decedent’s descendants

Question 5

When is a spouse disqualified from statutory inheritance?

Answer 5

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

Deserting spouse will not be appointed administrator of the estate if a beneficiary of the estate files an objection

Question 6

General Rule of Order

Answer 6

(1) Descendants
(2) Parents
(3) Descendants of Parents
(4) Grandparents and Descendants of Grandparents
(5) To Heirs of Deceased Spouse

Question 7

“Laughing Heir” Statute

Answer 7

Virginia does not have a laughing heir statute, which would cut off inheritance rights of more remote relatives.

The estate escheats to the Commonwealth only if there are no heirs of the decedent or their spouse

Question 8

What is required to disinherit an individual?

Answer 8

To disinherit someone, the testator must make a complete disposition of their estate by will.

A will provision attempting to disinherit is ineffective

Question 9

How do you compute shares in Virginia?

Answer 9

Per capita with representation

Question 10

How is property divided under the per capita with representation scheme?

Answer 10

The decedent’s property is divided into equal shares at the first generational level with living takers.

Each living persona and each predeceasing descendant who left living issue gets a share.

The shares then pass to their issue by right of representation.

Question 11

Who can an adopted child inherit from?

Answer 11

An adopted child inherits from and through the adopting parents (and the adopting parents and their kin inherit from and through the child) as though she were a natural child.

Question 12

What is the impact of adoption on the natural parents of the child?

Answer 12

It cuts off inheritance rights from the natural parents, and vice versa, except in cases of :

(1) adoption by the spouse of a biological parent, which has no effect on the relationship between the child and either biological parent; or

(2) court order that involuntarily terminates parental rights

Question 13

Who may a nonmarital child inherit from?

Answer 13

Their mother and their mother’s kin (and vice versa).

Question 14

When is the father considered to be the parent of a nonmarital child?

Answer 14

The father married the mother before or after the child’s birth (even if the attempted marriage is void or voidable); or

It is established by clear and convincing evidence that:
(1) the man openly cohabited 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 as his on a tax return or other government document;
(5) the man was adjudged the father in a paternity suit and ordered to pay child support;
(6) the man admitted paternity in court or in writing under oath; or
(7) genetic tests or other medical or anthropological evidence establish that the man is the child’s father

if paternity is established on one of the seven clear and convincing evidence grounds, the father can inherit only if the father treated the child as his and did not refuse to support the child

Question 15

How much do half-blood siblings inherit?

Answer 15

Half-blood inherit only half as much as kindred of the whole blood

Question 16

What is an advancement?

Answer 16

A gift made to a child or other descendant to be taken into account in making an intestate distribution

Question 17

How to overcome the presumption of an advancement

Answer 17

The presumption of an advancement may be rebutted by affirmative proof that the gift was not intended to be an advancement. Statements of the grantor are competent evidence to show the grantor’s intention

Question 18

Computation due to an Advancement

Answer 18

Step 1: Add the amount of the advancement back into the estate
Step 2: Calculate the share of each heir
Step 3: Deduct the amount of the advancement from the share of the recipient

If there is a deficit, and the amount of the recipient’s share is larger than the intestate share to which they are entitled, they are not responsible for returning the excess. The other heirs will divide the defecit

Question 19

How long must an heir survive an intestate decedent?

Answer 19

A person must survive an intestate decedent by 120 hours to take as an heir.

Failure to survive for the period results in the party being treated as having predeceased the decedent.

Survival of the 120 hour period must be established by clear and convincing evidence

Question 20

What is the effect of a disclaimer?

Answer 20

The disclaimed interest passes as though the disclaiming party died immediately before the decedent. If a party disclaims a lifetime gift, the property passes as though the disclaimant had died before the transfer was made

Question 21

What are the requirements for a valid disclaimer?

Answer 21

A valid disclaimer must:
(1) be in writing or other record;
(2) declare the disclaimer;
(3) describe the interest being disclaimed
(4) be signed by the disclaiming party; and
(5) be delivered.

Question 22

Who must a disclaimer be delivered to?

Answer 22

A disclaimer under a will or the intestacy laws must be delivered to the personal representative of the estate

A disclaimer of interest under a trust must be delivered to the trustee

If the disclaimer is of real property, a copy of the disclaimer must be recorded in the county where the land is located.

Question 23

What bars the right to disclaim an interest?

Answer 23

The right to disclaim is barred if the beneficiary accepts the property or any benefits, enters into a contract for the property’s sale, or assigns or mortgages the interest.

Question 24

Slayer Statute

Answer 24

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

The estate or interest is distributed as though the slayer predeceased the victim.

Question 25

Effect of Slayer Statute on Right of Survivorship

Answer 25

If one joint owner with right of survivorship, tenancy by the entirety, or joint bank account kills the other, the killer loses the benefit of survivorship.

The estate is converted into a tenancy in common, and the murdered decedent’s interest passes under their will or by intestacy.

Question 26

What is a Will?

Answer 26

A will is an instrument executed in accordance with applicable state formalities that may direct the disposition of a decedent’s property at death and/or set forth instructions pertaining to the management of the persons or assets.

Question 27

What is a codicil?

Answer 27

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

Question 28

Testate

Answer 28

Decedent with a will

Question 29

Testator

Answer 29

person who creates a will

Question 30

Probate

Answer 30

the proceeding in which a testamentary instrument is judicially established as the duly executed last will of the decedent, or, if there is no will, the proceeding in which the decedent’s heirs are judicially determined

Question 31

General Requirements for a Will

Answer 31

(1) Must be 18 years old and of sound mind
(2) Testamentary Intent
(3) Testamentary Capacity

Question 32

Testamentary Intent

Answer 32

(1) intend to dispose of property,
(2) intend for that disposition to happen at the time of death, and
(3) intend that this instrument accomplish that purpose

A promise to make a will in the future does not satisfy this requirement

Question 33

Testamentary Capacity

Answer 33

Determined at the time of will execution. Testator must have the ability to understand:
(1) the nature and extent of their property
(2) the persons who are the natural object of their bounty;
(3) the nature of the act that they are performing; and
(4) the way in which all of the foregoing concepts interact, such that they formulate a cohesive plan and orderly scheme of disposition.

Question 34

Virginia Will Execution Requirements

Answer 34

(1) Will or codicil be in writing
(2) Must be signed by the testator or by another in the testator’s presence and at their direction
(3) Two attesting, competent witnesses
(4) Presence requirements must be satisfied
(5) Testator must sign the will in the witness’ joint presence
(6) The witness must sign in the testator’s presence, but not necessarily in the presence of one another

Question 35

Self-Proving Affidavit

Answer 35

Recites all of the elements to which the witnesses would testify in open court. It is notarized by a notary public.

Although it is not required, a self-proving affidavit is useful and efficient because it can be substituted for the witness’ testimony.

It serves the same function as a deposition or interrogatory, and is accepted as if it had been given before the court.

Question 36

Virginia Dispensing Power Statute

Answer 36

Allows the court to dispense with formal requirements in certain cases. So even though a document is not executed in full compliance with Virginia’s will execution statute, in can nonetheless be treated as a validly executed testamentary instrument if its proponent establishes by clear and convincing evidence that the decedent intended the document to constitute their will.

All interested persons must be made parties to a proceeding seeking to invoke the statute, which must be brought within one year after the decedent’s death.

Question 37

What are the three common mistakes in execution of a will?

Answer 37

(1) No Writing: the dispensing power cannot be applied to cure the failure of the will (or other testamentary instrument) to be in writing

(2) No signature by Testator: the statute cannot be used to excuse any requirement for the testator’s signature, except where:
(a) is a “switched will” case, and two persons mistakenly sign each other’s will, or (b) the testator signs the self-proving affidavit, but not the will itself.

(3) Defective Witnessing: A court may dispense with the requirement that there be two witnesses if there is clear and convincing evidence that the decedent intended a document to be their will.

Question 38

Conditional Wills

Answer 38

Operative only if some condition stated in the will is satisfied

However, language that reads like a condition may be interpreted by the court as merely expressing the motive or inducement for making the will, meaning that the will can take effect even if the stated circumstances do not occur.

Question 39

Holographic Wills

Answer 39

(Handwritten and unattested) wills or codicils, provided they:
(1) Meet the requirements for testamentary capacity (18 years old and of sound mind) and present testamentary intent;
(2) Are wholly in the testator’s handwriting; and
(3) Are signed by the testator

Such wills are liberally construed

Two disinterested persons must testify that the will is wholly in the testator’s handwriting

Question 40

What types of oral wills does Virginia recognize?

Answer 40

Oral wills for soldiers in active military service and mariners and sailors at sea. These wills are valid for personal property only

Question 41

What is the burden of proof for the probate of a will?

Answer 41

the burden of proof is on the will proponents to show by a preponderance of the evidence that the will was duly executed.

Question 42

What are the general ways in which a will can be revoked?

Answer 42

(1) By operation of law
(2) By subsequent written instrument
(3) By physical act

Question 43

How can a will be revoked by operation of law?

Answer 43

(1) Marriage following execution of a will
(2) Divorce or Annulment
(3) Pretermitted Child

Question 44

Marriage Following Execution of a Will

Answer 44

If a person marries after executing a will and the spouse survives the testator, the spouse takes an intestate share of the testator’s estate unless it appears from the will (or a premarital agreement) that the omission was intentional

Inter vivos gifts and nonprobate transfers that benefit the spouse have no effect on the omitted spouse’s right to an intestate share

Question 45

Divorce or Annulment

Answer 45

If a testator is divorced or their marriage is annulled after executing a will, all gifts and appointments in favor of the former spouse are revoked.

If the parties reconcile and remarry, all provisions in favor of the spouse are revived.

Question 46

Pretermitted Child Statute

Answer 46

Applies only to children born or adopted after the will was executed

Question 47

What happens to a pretermitted child if the testator had no other children when the will was executed?

Answer 47

the pretermitted child takes a intestate share

Question 48

What happens to a pretermitted child if the testator had other children when the will was executed?

Answer 48

The pretermitted child will take the lesser of: (a) an amount equal to the largest bequest made to any of the testator’s other children, or (b) an intestate share

Question 49

Revocation by Written Instrument

Answer 49

A will may be revoked in whole or in part by a subsequently written will, codicil, or other writing executed with the same formalities as are required for the execution of a will.

Revocation by a subsequent instrument may be express or implied by inconsistency.

If the testator executes a second testamentary instrument that does not contain any express language of an earlier will, to the extent possible, the two instruments are read together

Question 50

Revocation by Physical Act Requirements

Answer 50

(1) A “sufficient” act
(2) With intent to revoke that is simultaneous with the act
(3) Performed by the testator, or a proxy

Question 51

Examples of Physical Acts that Revoke Will

Answer 51

“BTCOD”
(1) Burning
(2) Tearing
(3) Cutting
(4) Obliterating
(5) Destroying

Question 52

Presumption as to Revocation

Answer 52

A will is presumed revoked if it cannot be found after the testator’s death and was last seen in their possession or control

If a will is found after death in mutilated condition, a presumption arises that the testator did the mutilating with intent to revoke the will.

The presumption can be rebutted by clear and convincing evidence

Question 53

Can a will be revived in Virginia?

Answer 53

No, a revoked will must be re-executed with full testamentary formalities to regain effectiveness

Question 54

When does the doctrine of dependent relative revocation apply?

Answer 54

Applies when a testator revokes their will based on a mistake of law or fact as to the validity of another testamentary instrument, and but for this mistake, the testator would not have revoked the will

Question 55

How is the doctrine of dependent relative revocation applied?

Answer 55

the disposition that results from disregarding the revocation must come closer to effectuating what the testator tried (but failed) to do than would occur if the revocation is given effect.

Question 56

What must a proponent show if an integration question is raised in regards to the will?

Answer 56

The will proponent must show that the pages were present when the will was executed and intended by the testator to be part of the will.

Integration is presumed when the pages are physically attached or there is an internal coherence by provisions running from one page to the next.

The testimony of witnesses or other extrinsic evidence can also establish integration

Question 57

What makes a codicil valid?

Answer 57

It must be executed with the same testamentary formalities as a will

Question 58

Republication by Codicil

Answer 58

A will is treated as having been executed on the date of the last validly executed codicil thereto

Question 59

Incorporation by Reference

Answer 59

Allows the testator to incorporate an extraneous document into their will

Question 60

How do you incorporate a document by reference?

Answer 60

(1) the document must be in existence at the time the will was executed;
(2) the will must refer to the document as being in existence; and
(3) the will must identify and describe the document with reasonable certainty

Question 61

List Disposing of Tangible Personal Property

Answer 61

A will may refer to a written statement or list that disposes of items of tangible personal property not specifically bequeathed by the will itself. The writing may be referred to as one in existence at the time of the testator’s death.

It may be prepared before or after the will’s execution, and it may be altered by the testator at any time.

It does not need to be witnessed, but it must be signed by the testator and describe the items and beneficiaries with reasonable certainty

Question 62

Acts of Independent Significance

Answer 62

A will may dispose of property by reference to acts and events that have significance apart from their effect on the dispositions made by the will.

The act must have some other lifetime significance or motive aside form providing for the testamentary gift.

The future act may relate to the identification of the property that is to be the subject matter of a bequest

Question 63

Joint Will

Answer 63

A joint will is a will of two or more persons executed on the same piece of paper.

A joint will is admissible to probate on the death of each joint testator just as if there were separate pieces of paper

Question 64

Reciprocal Will

Answer 64

Two separate wills containing provisions that mirror one another.

Question 65

Can a will be contractual?

Answer 65

Yes, joint and reciprocal wills are usually executed out of an agreement between the creators as to the disposition of their property.

Such an agreement can be considered a valid contract to make a will, which is irrevocable by the survivor after the death of the other contractual party.

Question 66

What is the burden of proof to establish that a will is contractual?

Answer 66

There must be clear and satisfactory proof of a contract: (1) in the language of the will, (2) from extrinsic evidence, or (3) by clear implication from the surrounding circumstances.

Question 67

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

Answer 67

The second, breaching will is probated, but the beneficiaries under the first, contractual will are entitled to specific performance. A constructive trust is imposed for them

Question 68

What type of analysis applies to determine if a will is contractual?

Answer 68

Use a contract law analysis: offer, acceptance, consideration

Question 69

What is the order of people who receive a lapsed gift?

Answer 69

(1) Express terms of the will
(2) Applicable anti lapse statute;
(3) Residuary clause; then
(4) Intestacy statute

Question 70

Virginia Anti-Lapse Statute

Answer 70

Operates to save a testamentary gift if the predeceasing beneficiary was a grandparent or lineal descendant of the testator’s grandparents.

The beneficiary’s descendants that survive the testator are substituted as takers under the statute.

Question 71

What happens if there is a lapse in the residuary gift?

Answer 71

If a residuary gift lapses, and the anti-lapse statute does not apply, the residuary beneficiaries who survive the testator take the deceased beneficiary’s share in proportion to their interest in the residue.

Question 72

Ademption by Extinction

Answer 72

when specifically bequeathed property is not in the testator’s estate at death.

Question 73

What does ademption apply to?

Answer 73

Only to specific devises and bequests.

Question 74

General Legacy

Answer 74

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

Ademption does not apply to general legacies

Question 75

Demonstrative Legacy

Answer 75

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

Question 76

Satisfaction of Legacies

Answer 76

In Virginia, an inter vivos gift to a will beneficiary is not treated as being in partial or total satisfaction of a legacy unless:
(1) the testator declares in a contemporaneous writing that the gift was intended to satisfy a legacy;
(2) the beneficiary acknowledges in writing that the gift is in satisfaction; or
(3) the will expressly states that legacies are to be reduced to by such inter vivos gifts

Question 77

Surviving Spouse’s Elective Share

Answer 77

If the decedent was domiciled in VA at the time of their death, their surviving spouse has the right to claim a statutory share of the decedent’s estate.

The amount of the share is 50% of the value of the marital property portion of the augmented estate.

The right to claim an elective share is available for both testate and intestate estates

Question 78

Procedure for Making the Election of the Surviving Spouse’s Elective Share

Answer 78

To claim an elective share, the spouse must file a notice of election within 6 months from the admission of the will to probate, or, if none, from the appointment of an administrator.

The surviving spouse must then file the complaint to determine the elective share no later than 6 months after the filing of the election

Question 79

How is the marital property portion of the estate calculated?

Answer 79

It is calculated by multiplying the value of the augmented estate by a variable percentage based on the length of the marriage between the decedent and the surviving spouse.

The percentage ranges from 3% for a marriage lasting less than 1 year to 100% for a marriage of 15 years or longer.

Question 80

Who may elect on behalf of the spouse?

Answer 80

The right to elect is personal to the spouse and may not be made by a personal representative if the spouse dies before the election is made.

The spouse need only have sufficient capacity to understand their right to elect against the will and receive a statutory share of the estate, and know they are making such election.

If they are incapacitated, the election may be made by their conservator or agent under the authority of a durable power of attorney

Question 81

What is included in the augmented estate?

Answer 81

(1) the net probate estate;
(2) nonprobate transfers to third persons;
(3) nonprobate transfers to the surviving spouse; and
(4) the surviving spouse’s property and nonprobate transfers to others

Question 82

Nonprobate Transfers to Third Persons During Marriage

Answer 82

(1) Property that passed outside probate (property over which defendant had presently exercisable power of appointment, property held in joint tenancy, property held in payable on death or transfer on death desegnations and life insurance proceeds)

(2) Property transferred by the decedent during the marriage

(3) Property that passed during the marriage and during the two-year period before the decedent’s death

Question 83

Nonprobate transfers to surviving spouse

Answer 83

The augmented estate includes the value of all property that
passed outside probate from the decedent to the surviving spouse,
including the decedent’s interests in joint tenancies and property
held in co-ownership with the right of survivorship or with payable on
death or transfer on death designations.

This also includes all other property that would have been included in the augmented estate had it passed to or for the benefit of a person other than the spouse, the decedent, or the decedent’s creditors, estate, or estate creditors.

Question 84

Surviving Spouse’s Property and Nonprobate
Transfers to Others

Answer 84

The surviving spouse’s property is included in the augmented estate,
including (1) the spouse’s interests in property held in joint tenancy
or in co-ownership registration with the right of survivorship; (2)
property that passed to the spouse by reason of the decedent’s
death (excluding the homestead allowance, family allowance, exempt
property, and federal Social Security payments); and (3) property that would have been included in the spouse’s nonprobate transfers to
others had the spouse been the decedent.

Question 85

Transfers not included in the Augmented Estate

Answer 85

transfers to third persons before marriage; transfers with the written
consent or joinder of the surviving spouse; and property acquired by
gift, will, transfer in trust, intestate succession, or any other form of
transfer provided it is maintained as separate property

Question 86

Family Allowance

Answer 86

the spouse or children whom the decedent was legally
obligated to support are entitled to a reasonable allowance for the
period that the estate is in probate.

While the court can order a larger or smaller allowance, a personal representative may determine and distribute an allowance not in excess of $24,000 without court approval.

This allowance, which has priority over all creditors’ claims, is over and above amounts passing to the spouse by will, intestacy, or elective share.

Question 87

Exempt Personal Property Set-Aside

Answer 87

the spouse (or, if none, the minor children) is entitled to select household furniture, furnishings, automobile, appliances, and personal effects, not to exceed $20,000 in value. This set-aside has priority over all claims except family allowance. Note that property specifically bequeathed by the decedent’s will cannot be selected if other items of sufficient value are available

Question 88

Homestead Allowance

Answer 88

In addition to the family allowance and exempt property, the surviving spouse (or, if none, the minor children) is entitled to a homestead allowance of $20,000, which has priority over all claims other than family allowance and exempt personal property. Unlike those entitlements, however, this allowance is in lieu of property passing to the spouse by will or intestacy.

If the decedent died on or after January 1, 2017 and the surviving spouse claims an elective share, the spouse may receive the homestead allowance in addition to the elective share. However, if the decedent died before January 1, 2017, the surviving spouse may not claim both.

Question 89

What are the grounds for a will to be denied admission to probate?

Answer 89

(1) will was not properly executed
(2) lack of testamentary capacity
(3) undue influence
(4) fraud
(5) mistake

Question 90

Who can bring a will contest?

Answer 90

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 (in other words, they are an “interested” person or party)

Question 91

What is the burden of proof to determine testamentary capacity?

Answer 91

the burden is on the proponent, but proof that the will was validly executed raises a presumption of capacity.

If a a testator lacks testamentary capacity, the entire will is denied probate.

Question 92

What must a proponent prove to establish undue influence?

Answer 92

Influence was exerted on the testator that overpowered the mind and free will of the testator, and resulted in a will that would not have been executed but for the influence.

Mere pleading, begging, nagging, cajoling, or even threatening does not constitute undue influence. Free will of testator must be overpowered

Question 93

Presumption of Undue Influence

Answer 93

A presumption of undue influence arises 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 stood in a
relationship of confidence or dependence; and
(3) either previously expressed a contrary intention or previously expressed no intention regarding the disposition of their proper

Question 94

Fraud

Answer 94

Either (1) a misrepresentation is made as to the nature or contents of the instrument, or (2) the testator is induced into making a will or gift by misrepresentations of fact that influence her motivation

Question 95

Mistake

Answer 95

The will or its terms were affected by a mistake of fact or law, whether in expression (contents of will) or inducement (reason why the testator made the will or gift).

Question 96

No-contest Clauses

Answer 96

provide that any person who contests a will forfeits their interest under the will.

Enforceable in VA even if the contest is filed in good faith

Question 97

Ambiguity

Answer 97

Reasonably susceptible to alternate meanings; extrinsic evidence allowed to clarify

Question 98

Latent Ambiguity

Answer 98

Language is clear on its face, but results in misconstruction when applied

Question 99

Patent Ambiguity

Answer 99

Uncertainty appears on the face of the will

Question 100

What are the types of nonprobate property?

Answer 100

Life Insurance
Inter vivos trust
Joint Tenancy with Right of Survivorship
POD Bank Accounts
Employee benefits/pensions

Question 101

What is the jurisdiction and venue of probate proceedings?

Answer 101

Circuit courts have jurisdiction over all probate matters.

Venue lies in the county or city where the decedent resided, or (if none) the county or city where the decedent owned real property, or (if none) the county or city where the decedent owned real property

Question 102

When is a person presumed dead?

Answer 102

A person is presumed dead if they have been absent from Virginia and have not been heard from for at least seven years.

A person on board a ship or aircraft who disappears at sea is presumed dead after six months or a determination by a board or inquiry, whichever occurs first.

Question 103

What is the name of a personal representative in a will?

Answer 103

Executor

Question 104

What is the name of a personal representative appointed by the court?

Answer 104

An administrator

Question 105

Nonresident Personal Representative

Answer 105

A nonresident individual may serve as a personal representative of
a decedent’s estate but must appoint a resident agent for service of
process, or agree to allow the clerk of the court to be served on their
behalf. A corporation not authorized to do business in Virginia cannot
serve as a personal representative.

Question 106

Fiduciary Bond

Answer 106

The personal representative must post a fiduciary bond equal to the
value of personal property in the estate, unless the decedent’s will
waives the bonding requirement or all the takers of the estate are
named as personal representatives. If the estate does not exceed
$25,000, a personal representative may give bond without surety.
A bank or trust company named as personal representative is not
required to give bond.

Question 107

When must a personal representative file an inventory of the estate and a list of heirs?

Answer 107

The personal representative must file an inventory of the estate
within four months of their appointment. A personal representative
also must furnish a list of the decedent’s heirs at the time of qualification.

Question 108

If the assets in the estate are not sufficient to pay all debts and claims against the estate, what is the order that creditor’s claims are paid?

Answer 108

1. Expenses of administration
2. Family allowance, exempt property, homestead allowance
3. Funeral expenses up to $4,000
4. Debts and taxes with preference under federal law
5. Medical expenses of the last illness up to a certain dollar amount
6. Debts and taxes due Virginia
7. Debts incurred in a fiduciary capacity
8. Debts for child support arrearages
9. Debts and taxes due localities and municipal corporations of VA; and
10. all other claims

Question 109

Proof of Lost, Destroyed, or Suppressed Will

Answer 109

Virginia permits probate of a lost or destroyed will. In addition to overcoming the presumption of revocation, proponent must prove by clear and convincing evidence:
(1) that the will was properly executed;
(2) that the will was lost or destroyed; and
(3) the will’s contents

Declarations of the testator are admissible to corroborate other evidence, but are not sufficient proof of the contents on their own

Question 110

Alterations on Face of Will

Answer 110

In Virginia, the dispensing power applies to such interlineations on the face of a will so that an addition or alteration of the will is given effect when there is clear and convincing evidence that the testator intended to modify the will by their additions or alterations.

Question 111

Abatement

Answer 111

If assets owned at death are not sufficient to pay all of a testator’s
debts and also satisfy all of the gifts made in the testator’s will,
absent a contrary will provision, the source of payment of claims is as
follows:
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; and
5. If the personal property is exhausted, the real property abates in
the same order.

Question 112

Small Estates

Answer 112

Under Virginia law, a small estate is valued at $50,000 or less and
includes only personal property. A small estate cannot include real
property or nonprobate property (in other words, property passing
automatically subject to the terms of a governing instrument, such as
life insurance policies, joint tenancies, and accounts with payable on
death provisions).