Wills Flashcards
If a beneficiary dies during the testator’s lifetime what happens to the gift?
If a beneficiary dies during the testator’s lifetime, the gift “lapses” or fails. The person who receives the lapsed gift is controlled by (in this order) (1) express terms of the will, (2) anti-lapse statute, (3) residuary clause, (4) intestacy statute
What is the effect of Virginia’s anti lapse statute
Virginia’s anti-lapse statute operates to save a testamentary gift if the predeceasing beneficiary was a grandparent or a lineal descendant of the testator’s grandparents. The beneficiary’s descendants that survive the testator are substituted as takers under the anti-lapse statute.
What is ademption by extinction
When specifically bequeathed property is not in the testator’s estate at the time of death, the bequest is “adeemed” by extinction or fails.
When the assets owned at death are not sufficient to satisfy all the debts and costs and well as the gifts made in the will what happens?
When the assets owned at death are not sufficient to satisfy all the debts and costs and well as the gifts made in the will, the payment will abate as follows: (1) any personal property passing by instate succession, (2) personal property in the residuary estate, (3) general legacies, (4) specific and demonstrative bequests of personal property, and (5) real property (abated in the same order as above) when all the personal property in the estate is exhausted.
How does the abatement doctrine treat a beneficiary who was gifted stock in a corporation that was subject to corporate reorganization or merger?
In Virginia, a specific devisee of stock is entitled to securities of another corporation owned by the testator as a result of merger consolidation reorganization or similar action taken by the entity.
What is incorporation by reference
Incorporation by reference allows the testator to incorporate an extraneous document into the will.
What are the requirements to incorporate a document by reference?
To incorporate a document by reference (i) the document must be in existence at the time the will was executed, (ii) the will must refer to the document being in existence, and (iii) the will must identify and describe the document with reasonable certainty.
What is the effect of incorporation by reference
The effect of incorporation by reference is that the document will be treated as if it is written into the will itself, even if the document was not witnessed or was informally handwritten.
What is the 120 hour rule?
In VA a person must survive the testator by 120 hours to take as an heir or beneficiary
What is a pretermitted child?
The Virginia pretermitted child statute applies to children born or adopted after the execution of the will.
How does the pretermitted statute work?
If the testator had other children at the time of the execution of the will (and the pretermitted child is not mentioned in the will), the pretermitted child takes the lesser of: (i) an amount equal to the largest bequest made to any of the testator’s other children, or (ii) an intestate amount.
Where do the funds come from to satisfy a pretermitted child’s share?
because a pretermitted child takes against the will, the funds to satisfy the pretermitted child’s share are taken proportionally from all the beneficiaries in the will
