Wills Flashcards
1
Q
When does Intestate Succession rules apply?
A
(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
2
Q
If a decedent is survived by a spouse but no descendants, who takes what?
A
The surviving spouse inherits the entire estate
3
Q
If the decedent is survived by descendants, all of whom are also descendants of the surviving spouse, who takes what?
A
The surviving spouse inherits the entire estate
4
Q
If the decedent is survived by descendants, at least one of whom was not the surviving spouse’s descendant, who takes what?
A
Spouse inherits one-third of the estate, and the other two-thirds passes to the decedent’s descendants
5
Q
When is a spouse disqualified from statutory inheritance?
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
Deserting spouse will not be appointed administrator of the estate if a beneficiary of the estate files an objection
6
Q
General Rule of Order
A
(1) Descendants
(2) Parents
(3) Descendants of Parents
(4) Grandparents and Descendants of Grandparents
(5) To Heirs of Deceased Spouse
7
Q
“Laughing Heir” Statute
A
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
8
Q
What is required to disinherit an individual?
A
To disinherit someone, the testator must make a complete disposition of their estate by will.
A will provision attempting to disinherit is ineffective
9
Q
How do you compute shares in Virginia?
A
Per capita with representation
10
Q
How is property divided under the per capita with representation scheme?
A
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.
11
Q
Who can an adopted child inherit from?
A
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.
12
Q
What is the impact of adoption on the natural parents of the child?
A
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
13
Q
Who may a nonmarital child inherit from?
A
Their mother and their mother’s kin (and vice versa).
14
Q
When is the father considered to be the parent of a nonmarital child?
A
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
15
Q
How much do half-blood siblings inherit?
A
Half-blood inherit only half as much as kindred of the whole blood
16
Q
What is an advancement?
A
A gift made to a child or other descendant to be taken into account in making an intestate distribution
17
Q
How to overcome the presumption of an advancement
A
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
18
Q
Computation due to an Advancement
A
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
19
Q
How long must an heir survive an intestate decedent?
A
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
20
Q
What is the effect of a disclaimer?
A
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
21
Q
What are the requirements for a valid disclaimer?
A
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.
22
Q
Who must a disclaimer be delivered to?
A
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.
23
Q
What bars the right to disclaim an interest?
A
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.
24
Q
Slayer Statute
A
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.
25
Effect of Slayer Statute on Right of Survivorship
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.
26
What is a Will?
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.
27
What is a codicil?
A testamentary instrument that amends, supplements, or revokes a will
28
Testate
Decedent with a will
29
Testator
person who creates a will
30
Probate
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
31
General Requirements for a Will
(1) Must be 18 years old and of sound mind
(2) Testamentary Intent
(3) Testamentary Capacity
32
Testamentary Intent
(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
33
Testamentary Capacity
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.
34
Virginia Will Execution Requirements
(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
35
Self-Proving Affidavit
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.
36
Virginia Dispensing Power Statute
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.
37
What are the three common mistakes in execution of a will?
(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.
38
Conditional Wills
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.
39
Holographic Wills
(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
40
What types of oral wills does Virginia recognize?
Oral wills for soldiers in active military service and mariners and sailors at sea. These wills are valid for personal property only
41
What is the burden of proof for the probate of a will?
the burden of proof is on the will proponents to show by a preponderance of the evidence that the will was duly executed.
42
What are the general ways in which a will can be revoked?
(1) By operation of law
(2) By subsequent written instrument
(3) By physical act
43
How can a will be revoked by operation of law?
(1) Marriage following execution of a will
(2) Divorce or Annulment
(3) Pretermitted Child
44
Marriage Following Execution of a Will
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
45
Divorce or Annulment
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.
46
Pretermitted Child Statute
Applies only to children born or adopted after the will was executed
47
What happens to a pretermitted child if the testator had no other children when the will was executed?
the pretermitted child takes a intestate share
48
What happens to a pretermitted child if the testator had other children when the will was executed?
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
49
Revocation by Written Instrument
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
50
Revocation by Physical Act Requirements
(1) A "sufficient" act
(2) With intent to revoke that is simultaneous with the act
(3) Performed by the testator, or a proxy
51
Examples of Physical Acts that Revoke Will
"BTCOD"
(1) Burning
(2) Tearing
(3) Cutting
(4) Obliterating
(5) Destroying
52
Presumption as to Revocation
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
53
Can a will be revived in Virginia?
No, a revoked will must be re-executed with full testamentary formalities to regain effectiveness
54
When does the doctrine of dependent relative revocation apply?
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
55
How is the doctrine of dependent relative revocation applied?
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.
56
What must a proponent show if an integration question is raised in regards to the will?
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
57
What makes a codicil valid?
It must be executed with the same testamentary formalities as a will
58
Republication by Codicil
A will is treated as having been executed on the date of the last validly executed codicil thereto
59
Incorporation by Reference
Allows the testator to incorporate an extraneous document into their will
60
How do you incorporate a document by reference?
(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
61
List Disposing of Tangible Personal Property
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
62
Acts of Independent Significance
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
63
Joint Will
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
64
Reciprocal Will
Two separate wills containing provisions that mirror one another.
65
Can a will be contractual?
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.
66
What is the burden of proof to establish that a will is contractual?
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.
67
What type of remedy is available for the breach of a contract relating to a will?
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
68
What type of analysis applies to determine if a will is contractual?
Use a contract law analysis: offer, acceptance, consideration
69
What is the order of people who receive a lapsed gift?
(1) Express terms of the will
(2) Applicable anti lapse statute;
(3) Residuary clause; then
(4) Intestacy statute
70
Virginia Anti-Lapse Statute
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.
71
What happens if there is a lapse in the residuary gift?
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.
72
Ademption by Extinction
when specifically bequeathed property is not in the testator's estate at death.
73
What does ademption apply to?
Only to specific devises and bequests.
74
General Legacy
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
75
Demonstrative Legacy
a gift of general amount that identifies a particular asset as the primary source of payment
76
Satisfaction of Legacies
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
77
Surviving Spouse's Elective Share
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
78
Procedure for Making the Election of the Surviving Spouse's Elective Share
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
79
How is the marital property portion of the estate calculated?
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.
80
Who may elect on behalf of the spouse?
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
81
What is included in the augmented estate?
(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
82
Nonprobate Transfers to Third Persons During Marriage
(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
83
Nonprobate transfers to surviving spouse
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.
84
Surviving Spouse’s Property and Nonprobate
Transfers to Others
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.
85
Transfers not included in the Augmented Estate
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
86
Family Allowance
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.
87
Exempt Personal Property Set-Aside
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
88
Homestead Allowance
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.
89
What are the grounds for a will to be denied admission to probate?
(1) will was not properly executed
(2) lack of testamentary capacity
(3) undue influence
(4) fraud
(5) mistake
90
Who can bring a will contest?
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)
91
What is the burden of proof to determine testamentary capacity?
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.
92
What must a proponent prove to establish undue influence?
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
93
Presumption of Undue Influence
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
94
Fraud
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
95
Mistake
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).
96
No-contest Clauses
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
97
Ambiguity
Reasonably susceptible to alternate meanings; extrinsic evidence allowed to clarify
98
Latent Ambiguity
Language is clear on its face, but results in misconstruction when applied
99
Patent Ambiguity
Uncertainty appears on the face of the will
100
What are the types of nonprobate property?
Life Insurance
Inter vivos trust
Joint Tenancy with Right of Survivorship
POD Bank Accounts
Employee benefits/pensions
101
What is the jurisdiction and venue of probate proceedings?
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
102
When is a person presumed dead?
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.
103
What is the name of a personal representative in a will?
Executor
104
What is the name of a personal representative appointed by the court?
An administrator
105
Nonresident Personal Representative
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.
106
Fiduciary Bond
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.
107
When must a personal representative file an inventory of the estate and a list of heirs?
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.
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?
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
109
Proof of Lost, Destroyed, or Suppressed Will
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
110
Alterations on Face of Will
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.
111
Abatement
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.
112
Small Estates
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).
