Wills

Question 1

Reciprocal Wills

When can an estate plan become an irrevocable contract?

Answer 1

Even if the parties to an estate plan do not expressly make an irrevocable contract, e.g., two testator’s providing for surviving spouse then children and a lawyer, a contract may still arise “as an implication from the circumstances and relations of the parties and what they have actually provided for by the instrument.”

Question 2

Reciprocal Wills

What must the proponent of an irrevocable contract do to prove the contract?

Answer 2

• Establish by clear and convincing evidence that a contract was intended by the parties to bind them to the estate plan.
• If not explicit, use attorney testimony from the planning process and circumstantial evidence
• E.g., Reciprocal wills were contractual in nature and therefore can be specifically enforced in equity

Question 3

Provision for omitted children when child not living or adopted when will made.

Answer 3

“if a testator executes a will that makes provision for a living child of the testator, a child born or adopted after execution of a testator’s will who is neither provided for nor expressly excluded by the will is entitled to the lesser of” (1) what they would receive under the laws of intestacy, and (2) the equivalent in amount to any bequest and devise to any child named in the will, and to the largest aggregate bequest/devise if there is more than one child named.

Question 4

How does co-owned property pass when co-owners with rights of survivorship fail to survive one another?

Answer 4

The property passes in proportion to the number of co-owners. So two co-owners, half the property and that half will be an asset in each co-owner’s estate.

Question 5

Is the omitted child statute implicated when the will refers to “children” generically and not by name?

Answer 5

No, the will is interpreted at the date of the decedent’s death, so “children” will include all children alive.

Question 6

What are the requirements for a holographic will?

Answer 6

• (1) it is wholly in the testator’s handwriting; (2) it is signed by the testator, and (3) is proved by at least two disinterested witnesses familiar with her handwriting. The testator must also be 18 and have the requisite testamentary intent and capacity. The holographic will must be signed in such a manner as to make it manifest that the name is intended as a signature. Virginia law does not define what shall constitute a signature, and a first name, initials or even a mark can be sufficient, if that was an ordinary way for a testator to sign her name.

Question 7

What does it mean for a disinterested witness to prove a holographic will?

Answer 7

Just means they can say that that is the testator’s handwriting.

Question 8

How do disinterested witnesses attest to a non-holographic will?

Answer 8

A will not wholly in the testator’s handwriting is not valid unless the signature of the testator is made, or the will is acknowledged by the testator, in the presence of at least two competent witnesses who are present at the same time and who subscribe the will in the presence of the testator.

Question 9

How can a testator revoke a will?

Answer 9

1. If a testator with the intent to revoke a will or codicil, or some person at his direction and in his presence, cuts, tears, burns, obliterates, cancels, or destroys a will or codicil, or the signature thereto, or some provision thereof, such will, codicil, or provision thereof is void and of no effect.
2. Another writing that satisfies the will requirements and expressly revokes all or part of a will or codocil
3. Inconsistent terms in a document that satisfies the will requirements

Question 10

How can a revoked will be revived?

Answer 10

• Once a will is revoked, the will cannot be revived unless it is re-executed with full testamentary formalities. A codicil is a later testamentary instrument that amends, alters, or modifies a previously executed will. A codicil must be executed with the same testamentary formalities as a will. The valid execution of a codicil that makes referenced to the revoked will would cause the will to be revived under the republication by codicil.

Question 11

What is a disinterested witness?

Answer 11

Someone that is not a beneficiary under the will.

Question 12

Who does the anti-lapse statute apply to?

Answer 12

• a gift could be saved under the anti-lapse statute so long as the predeceasing beneficiary was a grandparent or lineal descendant of a grandparent of the testator

Question 13

What happens when a predeceasing will beneficiary is not covered by the anti-lapse statute?

Answer 13

• The gift lapses. The non-residuary gift will pass under the residuary clause. If there is not residuary clause then the gift will pass by intestacy (modified per stirpes).

Question 14

Provision for omitted children when no child living when will made.

Answer 14

If a testator executes a will when the testator has no children, a child born or adopted after the execution of the testator’s will, or any descendant of his, who is neither provided for nor mentioned in the will is entitled to such portion of the testator’s estate as he would have been entitled to if the testator had died intestate.

Question 15

Where should a will be probated? What about for a nursing home patient?

Answer 15

Under §64.2-443, the will should be admitted to probate in the jurisdiction where the decedent had a place of residence. For a patient in a nursing home, the place of legal residence is rebuttably presumed to be the same as it was before he or she became a patient.

overcome presumption by clear and convincing evidence

Question 16

What effect does a contract have on a will that causes a breach of the contract? What if the parties are beneficiaries under the will?

Answer 16

It depends on the type of contract. If it is a contract to make a will, then the contract must be enforced if valid. The Wills terms will operate to the extent that they do not conflict with the terms of the contract. (this is major rule to learn).

If it is not a contract to make a will, for example a loan agreement, it does not directly affect the will. The person(s) harmed by the breach have a separate cause of action against the estate. They should name the estate and the devisee as defendants.

A contract action is an action at law, accompanied by a right to trial by jury. Assuming that the plaintiffs can prove their cause of action, since the terms of the will breach the terms of the written agreement, an issue that would need to be resolved is whether any contract claims would be offset by amounts received by the beneficiaries under the will.

Question 17

How can you tell the difference between a regular contract and a contract to make a will?

Answer 17

Contract to make a Will will indicate a present intent to contract as to the disposition of a probate asset (“X would provide at her death”). Whereas a regular contract will promise something else (“after X’s death, the land will be sold”)

one is an intent to make a Will disposition, the other is just a promise that it will happen, not necessarily by Will.

Question 18

General rule: what is the remedy for a breach of contract involving real property? So what result when there is a breach of contract to make a Will regarding real property?

Answer 18

1. Specific performance
2. “[E]quity can do what is equivalent to specific performance by compelling those upon whom the legal title has descended to convey or deliver the property in accordance with the terms of the agreement on the ground that it is charged with a trust in the hands of an heir, devisee, personal representative or purchaser with notice.” The holder of legal title becomes a constructive trustee for the benefit of the beneficiaries.

Question 19

If a loan agreement says property will be sold to pay off the debt, and then a will devises that property, what result?

Answer 19

It depends on whether the debt was secured by the property. If unsecured, then the debt will be paid in the order of abatement (remainder, general, specific). So assuming the assets in the estate beside the specific devise can satisfy the claims and debts, then the specific devise will be untouched. However, if there are insufficient assets then debts are paid in the following order: [i] expenses of administration, [ii] family and homestead allowances, [iii] funeral expenses, debts and taxes with priority under federal law, [iv] medical and hospital expenses, [v] debts and taxes due Virginia, [vi] debts and taxes to localities, and [vii] all other claims.

If the debt is secured: Virginia does not recognize the exoneration of liens. The property would still be subject to the lien, unless the decedent specifically provided the estate’s assets will pay off the lien instead of the secured property.

Question 20

When will contracts supersede valid wills?

Answer 20

only on terms where they conflict

Question 21

Requirements for qualifying as the executor or administrator? Non resident?

Answer 21

1. 18
2. Legally competent
3. must swear an oath before the clerk or judge that:
   a. She will faithfully perform the duties to the best of her judgment;
   b. If the will is in probate, that (to the best of her knowledge), the writing is the decedent’s last true will; and
   c. If the decedent died intestate, that (to the best of her knowledge), the decedent left no will.

a nonresident fiduciary must (i) appoint a Virginia resident or the Clerk of Court to receive service of process on his or her behalf, and (ii) post a surety bond, unless a resident qualifies at the same time or the clerk waives surety under the provisions of §64.2-1411

a surety bond means a third party backs up the promise

Question 22

Who can take a will to be probated?

Answer 22

Any interested person

Question 23

Although a will need not be self-proving, what is required if there is no self-proving affidavit to probate the will?

Answer 23

at least one of the two witnesses must appear before the Clerk to verify the decedent’s signature and validity of the execution of the Will

If they are unavailable to testify and can show good cause for their unavailability, the witnesses may be able to substitute a sworn deposition in place of in-court testimony

Question 24

What must the proponent of a will provide to admit the will to probate?

Answer 24

Present it to the clerk of the appropriate probate court. The proponent of the Will must also pay the appropriate fees, and if the proponent intends to qualify as personal representative of the estate, the proponent must provide a bond (with surety if a nonresident). Further, certain forms must be provided to the Clerk, namely, a Memorandum of Facts (about the decedent), a Probate Tax Return, and a List of Heirs.

Question 25

Who Is Entitled to Inherit through Intestacy?

Begin with the suriviving spouse who receives…

Answer 25

one-third or 100 percent of the decedent’s personal estate, depending on whether the intestate decedent is survived by children or any other descendants from outside the marriage.

Question 26

Who Is Entitled to Inherit through Intestacy?

If there is one or more surviving children or other descendants but no surviving spouse…

Answer 26

The surviving children or other descendants get 100% of the decedent’s personal estate

Question 27

Who Is Entitled to Inherit through Intestacy?

No surviving spouse and no surviving children or other descendants—look to …

Answer 27

the intestate’s parents:
* Both parents are alive—the personal estate goes to the two parents;
* Only one parent is alive—the personal estate goes to that surviving parent.

Question 28

Who Is Entitled to Inherit through Intestacy?

No surviving spouse, no surviving children or other descendants, and no surviving parent…

Answer 28

the intestate’s personal estate goes to the intestate’s siblings; if a sibling has predeceased the intestate, the child or other descendant of that sibling takes a share along with the surviving siblings

Question 29

Who Is Entitled to Inherit through Intestacy?

No surviving spouse, no surviving children or other descendants, no surviving parent, no surviving sibling, and no surviving descendant of a sibling…

Answer 29

the laws of intestacy divide the intestate’s personal estate into two equal portions and assign one-half to the paternal side and one-half to the maternal side:
* The half for the paternal side is given to paternal relatives, following a specified order, and the half for the maternal side is given to material relatives, again following a specified order.
* If there are no paternal relatives, the paternal share goes to the maternal side; if there are no maternal relatives, the maternal share goes to the paternal side.

Question 30

Who Is Entitled to Inherit through Intestacy?

No surviving spouse, no surviving children or other descendants, no surviving parent, no surviving sibling, and no surviving descendant of a sibling… the specified order:

Answer 30

• Grandfather and grandmother - or the survivorof the two, if one has already died;
• If there is no grandfather or grandmother, to uncles and aunts (and their descendants, the intestate’s cousins, if any uncle or aunt has died);
• If there are no grandparents, no uncles or aunts, and no descendants of uncles and aunts, to great-grandparents;
• If there are no grandparents, no uncles or aunts, no descendants of uncles and aunts, and no great-grandparents, to the brothers and sisters of the grandparents (and their descendants, if any of them has died)

The search keeps on going up the ancestral chain until a lineal ancestor is found who survives the intestate or who left a descendant who survives the intestate.

Question 31

Special Rules about Children and Other Descendants

What are the first steps in determining whether a child born out of wedlock inherits from the biological parents?

Answer 31

First, apply the rules for adoption and assisted conception.

Question 32

Special Rules about Children and Other Descendants

Who do adopted children inherit from? What if they were adopted as an adult?

Answer 32

1. They inherit from the adopting parent(s). Cease to be child of biological parents unless adopting parent is spouse of biological
2. Virginia law recognizes adult adoption for inheritance purposes

Question 33

Special Rules about Children and Other Descendants

How does a child conceived through assisted conception become the child of the parent for inheritance purposes?

Answer 33

The parent must give consent (1) in writing, (2) before conception, and (3) the child must be born during the consenting person’s lifetime (or within 10 months after the consenting person’s death).

Question 34

Special Rules about Children and Other Descendants

What are the special rules for children born out of wedlock if the other rules do not apply for the purposes of inheritance?

Answer 34

1. the child is always the child of her biological mother
2. the child is the child of the biological father if (1) the biological parents participated in a marriage ceremony before or after the birth, or (2) paternity is established by clear and convincing evidence.

Question 35

Special Rules about Children and Other Descendants

How does a biological father inherit from a child born out of wedlock?

Answer 35

the father must openly treat the child as his child and must not refuse to support the child.

Question 36

Special Rules about Children and Other Descendants

What are the filing requirements for a child born out of wedlock?

Answer 36

they must file an affidavit in the circuit court and ask for adjudication of parentage witin one year of the parent’s death.

Question 37

Special Rules about Children and Other Descendants

When does the 1 year filing requirement for children born out of wedlock not apply? (3)

Answer 37

• Parentage has already been established through birth records made out by the deceased parent;
• Admission of parentage under oath; or
• a prior proceeding to determine parentage

Question 38

Jurisdiction and Venue

Who hears probate and intestacy matters?

Answer 38

Unlike most states, no probate courts. CIrcuit courts hear these matters. Many counties and cities delegate authority over uncontested probate matters to deputy clerks. Contested matters must go before a CC judge

Question 39

Jurisdiction and Venue

Venue is determined in the following order of priority:

Answer 39

1. The circuit court for the city or county where the decedent had a known place of residence
2. The circuit court for the city or country where there is real property owned or devised by the decedent
3. The circuit court for the city or county where the decedent dies or has an estate

Question 40

Probating a Will

Methods proponent can use to prove the validity of the will?

Answer 40

• Show that the will has a self proving affidavit (no need for witness);
• The proponent may present testimony from the witnesses to the will about:
• the authenticity of their signatures
• The other requirements for execution were met;
• The testator’s mental capacity and testamentary intent

Question 41

How does proponent prove the validity of a holographic will?

Answer 41

Must produce 2 disinterested witnesses who testify that the will is completely in the handwriting of the testator.

Question 42

Executors and Administrators

VA rules for qualifying Executors and Administrators?

Answer 42

1. Must be at least 18 years old, legally competent, and must swear an oath before the clerk or judge that:
   - She will faithfully perform the duties to the best of her judgment;
   - If the will is in probate, that (to the best of her knowledge), the writingis the decedent’s
   last true will; and
   - If the decedent died intestate, that (to the best of her knowledge), the decedent left no will.
2. Must post a fiduciary bond equal in value to the decedent’s personal property and to any real property that the will authorizes for sale
3. May have to post security (or surety) on the bond (MUST if non-resident)
4. A non-resident individual who is appointed to serve as either executor or administrator must consent to service of process in Virginia and must post surity bond — even if security is waived by the will — unless there is a Virginia resident serving as co-executor or coadministrator

bond used to make parties whole if the executor/administrator fails to properly administer the estate.

Question 43

what must an administrator or executor do when a minor child is a beneficiary of a will?

Answer 43

Petition to have a guardian appointed to manage the property passing to the child while they are still in infancy.

The guardian of the estate must post bond, unless will waives doing so [§ 64.2-504, -505]; provide a list of heirs at the time of qualification [§ 64.2-509]; file an inventory within four months of appointment [§ 64.2-1300]; and file an accounting within 16 months of qualification and annually thereafter [§ 64.2-1304].

Question 44

Requirements for a contract to make a will?

Answer 44

same to make a regular contract:
1. Certain and definite terms
2. Consideration
3. proof thereof must be clear and convincing

Question 45

where a contract deals with the transfer of real property, is must satisfy…

Answer 45

the statute of frauds

K must be in writing and signed by the person charged (unless two of three: payment, possession or improvements)

Question 46

What is a transfer on death deed and what are its statutory requirements?

Answer 46

A deed that transfers property to a designated beneficiary upon the death of the transferor.

The statutory requirements:
1. The deed states that the property will transfer to a designated beneficiary upon death;
2. The deed must be recorded before the transferor’s death in the circuit court where the property is located;
3. The deed is never revoked

Question 47

When will a statement incorporated by reference be valid?

Answer 47

“If a will refers to a written statement or list to dispose
of items of tangible personal property not otherwise specifically bequeathed, the statement or list shall be given effect to the extent that it describes items of tangible personal property and their intended recipients with reasonable certainty and is signed by the testator although it does not satisfy the requirements for a will.”

If it deals with tangible personality, it need not be executed after the execution of the will.

Question 48

Who do adopted children inherit from? What if they were adopted as an adult?

Answer 48

1. They inherit from the adopting parent(s). Cease to be child of biological parents unless adopting parent is spouse of biological
2. Virginia law recognizes adult adoption for inheritance purposes

Question 49

What do you have if you are the only surviving heir and the decedent is dead?

Answer 49

a vested remainder

Question 50

Does VA recognize equitable adoptions?

Answer 50

No, and thus under intestacy a child will not be able to take from a person with whom they shared a familial-like relationship unless the child was legally adopted by that person.

Question 51

What does absolute divorce do to a tenancy by the entirety with the right of survivorship?

Answer 51

Revokes the death benefit and transforms the tenancy into tenancy in common, whereby the parties each have an undivided half-interest in the property.

Question 52

Will a second Will revoke a prior will by virtue of its existance?

Answer 52

Only where the two Wills are inconsistent.

Question 53

What is a car?

Answer 53

Tangible personal property

Question 54

Timing of Will interpretation?

Answer 54

a will is construed to speak “as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will”

Question 55

What effect does divorce have on the disposition of property in a Will?

Answer 55

If, after making a will, the testator is divorced from the bond of matrimony or his marriage is annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse.

The property will pass as if the spoouse pre-deceased the decedant, unless the Will provides otherwise. Anti-lapse applies if you marry your grandparent or lineal descendant lol

Question 56

What is ademption by extinction?

Answer 56

When a testator makes a specific devise and that property no longer exists at execution, the gift is adeemed and the devisee receives nothing

Question 57

Stock exception to ademption by extinction?

Answer 57

With respect to stocks, the beneficiary would receive any shares of another entity received as a result of a merger or sale of the original company

Question 58

What must an executor/administrator do if a devise is to a minor?

Answer 58

Petition the court to appoint a guardian to manage the property passing to the minor. There is no presumption that the child’s parent or legal guardian would be the guardian for purposes of distributions from the estate.

Question 59

What are the elements of an inter vivos gift?

Answer 59

1. Donative Capacity (mental capacity)
2. Present donative intent (conditional or unconditional)
3. Acceptance by the donee (presumed; express denial will overcome presumption)
4. Delivery (transfer of possession)
   a. Actual (physical) or constructive (handing over control)

Question 60

If an intestate decedent dies with no spouse or descendants, but a grandfather, a niece, and 2 aunts, who does his property go to?

Answer 60

the niece

Question 61

Does a testator have the right to disinherit whomever they like? Exception?

Answer 61

Yes except the surviving spouse

Question 62

May a will be revoked by another person other than the testator?

Answer 62

Yes, at the testator’s direction and in their presence

Question 63

Even if a document, or a writing added to a document, was not executed in compliance with the statutory will requirements, what can the proponent do (curative statute)?

Answer 63

Estabish by clear and convincing evidence that the document or writing was intended to be:
1. the decedent’s Will
2. a partial or complete revocation of the Will
3. An addition to or alteration of the Will
4. A partial or complete revival of his formerly revoked will or of a formely revoked portion of the will

Question 64

What can the curative statute not be used for? When is it available

Answer 64

1. it cannot be used to excuse the compliance with the signature requirement except where two persons accidentally sign the others will or signs the self-proving affidavit instead of the will
2. Only in circuit court filed within one year of the decedent’s death and in which all interested persons are made parties.

Question 65

An attested will can have - but does not need to have — a self-proving affidavit (3 things and 1 impact):

Answer 65

1. an affidavit signed by testator and witnesses saying that the formal requirements for executing the Will were met;
2. Signed at the same time as the will and attached thereto;
3. notarized which removes the need for any witnesses in most cases

Creates a presumption that the will is valid and should be probated.

Question 66

What must be established to prove testamentary capacity? Who has the burden to prove it?

Answer 66

If proponent proves that the will was validly executed, there is a presumption that the testator had testamentary capacity. The burden of production shifts to the challenger to overcome the presumption, but the burden of persuasion remains with the proponent.

Question 67

Will the appointment of a guardian overcome the presumption of capacity?

Answer 67

No, the appointment is not prima facie evidence of a lack of capacity and it will overcome the presumption on its own

Question 68

If the burden of proof to establish a lack of testamentary capacity, what then?

Answer 68

The burden of production shift back to the proponent who would then need to establish the elements of testamentary capacity.

Question 69

What are the elements of testamentary capacity?

Answer 69

1. the testator understood the nature and extent of his property
2. the testator understood the natural objects of his bounty
3. the testator was capable of making an orderly plan of disposition
4. the testator understood the disposition made by the will

Question 70

Protections against disinheritance

Do these protections depend on whether the decedent died testate or not?

Answer 70

No

Question 71

What is the “family allowance?”

Answer 71

it is a payment or set of payments made from the decedent’s personal estate to provide for the maitenance of the surviving spouse and minor children during the administration of the estate.

Question 72

What amount is the “family allowance?”

Answer 72

A reasonable allowance, paid in cash. There is a cap: no more than a lump sum of $24k or $2,000 a month. Any amount above that must be approved by the court

Question 73

What priority is the “family allowance?”

Answer 73

second, behind administrative costs and expenses

Question 74

Rules for insolvent estates regarding the family allowance?

Answer 74

Reasonable payments may not last longer than a year.

Question 75

Does the allowance take away from inheritance?

Answer 75

No, it is in addition to

Question 76

What is exempt property?

Answer 76

another protection that grants the surviving spouse $20K in net value from the following types of property of the estate:
* household furniture
* automobiles
* furnishings
* appliances
* personal effects

net value=the value minus the oustanding debt on the property. Comes out of the state before the beneficiaries are paid out under the will.

Question 77

What does the exempt property protection do for surviving minor children when there is no surviving spouse?

Answer 77

the minor children are entitled to equal shares of the $20,000 in property that would have gone to the surviving spouse.

Question 78

Order of priority for exempt property?

Answer 78

Third

Question 79

What is the amount of the homestead allowance, who does it go to, and what is its priority?

Answer 79

20K, it goes to the surviving spouse unless there isn’t one, then the minor children. Fourth in line

Question 80

How does the homestead allowance work?

Answer 80

1. Any amount payed under the allowance are in lieu of the distributions payable under the will or intestacy
2. If the amount payable to the surviving spouse or the minor children under the will or the laws of intestacy is less than $20,000, the surviving spouse or the minor children get a homestead allowance that brings the total amount up to $20,000

the taker of the home allowance can either boost the family allowance + exempt property + inheritance to 20k if below OR choose between the homstead allowance and what they recieve under will or intestacy if what they receive is more than 20K (higher priority for the allowance than creditor claims)

Question 81

Assuming no joint tenancy, surviving spouse has right to continue living in principal residence until:

Answer 81

1. there is a final order
2. the parties reach an agreement

Question 82

What are the two major differences between the old rules and the new rules for elective share?

Answer 82

1. the old rules defined the augmented estate by looking solely at the decedent’s property and the new rules look both at the property of the decedent and that of the surviving spouse
2. The new rules define the elective share as one half of the marital protperty portion of the augmented estate, instead of just a simple fraction.

Question 83

Same as old rules: add the net probate estate with certain non-probate transfers/spouse property and you get the augmented estate. How is the net probate estate defined?

Answer 83

Net probate estate = the decedent’s personal estate, minus the family allowance, exempt property, the homestead allowance, funeral expenses, administrative expenses, and enforceable claims.

Not reduced by estate taxes

Question 84

What gets added to the net probate estate to make the augmented estate?

Answer 84

1. any non-probate transfers from the decedent to the surviving spouse
2. Surviving spouses property owned at decedent’s death
3. certain transfers to third parties

Question 85

Added to net probate: what do the transfers to third parties include?

Answer 85

1. Any non-probate transfers to third-parties upon death;
2. Any propoperty transferred by the decedent in which he retained a power over the property for his benefit (e.g., possession, enjoyment, income)
3. any property transferred during the marriage and within 2 years of the decedent’s death

However, any property that the decedent transferred to third parties and received full consideration for or if the surviving spouse consented to, is not included in the augmented estate.

Question 86

Added to net probate: what does the surviving spouses property include?

Answer 86

1. their own property
2. property they hold as joint tenant with a right of survivorship
3. property that would be added to the surviving spouse’s own augmented estate as a non-probate transfer if the surviving spouse died instead; and
4. any property that passed to the surviving spouse by reason of the decedent’s death, other than the family allowance, exempt property, and the homestead allowance.

Question 87

What is the surviving spouses elective share?

Answer 87

One half of the marital portion of the augmented estate.

marital portion is a portion of the augmented estate. You get half of that portion.

Question 88

Order of satisfaction for the elective share?

Answer 88

1. Out of the marital-property portion of the surviving spouse’s property;
2. Out of the full value of whatever property passes from the decedent to the surviving spouse through probate or non-probate transfers;
3. On a pro-rata basis, out of the probate and non-probate transfers to third parties

Question 88

How is the marital portion calculated?

Answer 88

• Starts at 3% and gradually increases to 100% as the length of the marriage increases
• The percentage is determined as follows:
  1. <1Y = 3%
  2. > 1Y but <2Y = 6%
  3. increase by 6% until 10Y but less than 11Y (60%)
  4. Then increase by 8% until 15Y (100%)

Question 89

When must the surviving spouse elect to exercise their right?

Answer 89

Within 6 months from the time of the admission of the Will to probate.

Question 90

Procedure for claiming the elective share?

Answer 90

Within 6 months of the Will being admitted to probate, the surviving spouse must either make the claim in person before the court having jurisdiction over the estate, or in writing admitted to the record.

Within six months after that, the surviving spouse must file a complaint to determine the elective share.

The surviving spouse can withdraw the election at any time before the court enters a final determination of the elective-share amount.

Question 91

What is in addition to the elective share?

Answer 91

the homestead allowance, the family allowance, and the exempt property

Question 92

When must the claims to the homestead allowance, exempt property, and the family allowance be asserted?

Answer 92

Within 1 year of the death of the testator

Question 93

Effect of surviving spouse willfully deserting or abandoning?

Answer 93

If the surviving spouse willfully abandons or deserts the decedent and reamins that way until the decedent’s death, they forfeit any right to the family allowance, the homestead allowance, the exempt property and any intestate share (even if they remain married).

The abandoned spouse does not lose these rights

Question 94

What is common law marriage?

Answer 94

A prolonged cohabitation with the intent to be a married couple and holding yourselves out as a married couple.

Question 95

Does VA recognize common-law marriage?

Answer 95

Not within the state

Question 96

Is a marriage entered into prior to the dissolution of a previous marriage void or voidable?

Answer 96

Void

Question 97

What happens with a joint account with right of survivorship if a will tries to devise the account to someone other than the joint owner?

Answer 97

Nothing. the account policy controls

Question 98

What do you call a will that adds property to an existing trust?

Answer 98

Pour-over trust

Question 99

How do you create a pour-over trust?

Answer 99

Not the same requirements as a trust, but the Will must identify the trust, and the trust must be in writing. The trust must be created at the same time or before the execution of the Will.

Question 100

How is a trust created?

Answer 100

1. the settlor has the capacity to make a trust
2. the settlor intends to create a trust
3. the trust has a definite beneficiary (unless a charitable or honorary)
4. The trustee has duties
5. the trustee and beneficiary are not the same person

Question 101

Can a pour over trust be revocable and unfunded at the time of creation?

Answer 101

Yes

Question 102

May a creditor reach a trust beneficiaries interest?

Answer 102

Yes, unless there is a spendthrift provision, but not the corpus of the trust if it is discretionary

Question 103

Will a co-trustee be liable for a co-trustee’s breach of trust?

Answer 103

Only if they fail to prevent a significant breach or compel the breacher redress the breach. Otherwise, so long as they do not join in the breach, they will not be liable.

Question 104

Is a trustee personally liable on a contract properly entered into in the trustee’s fiduciary capacity?

Answer 104

no, if done in the course of administering the trust and they disclosed in the contract their fiduciary capacity. BUT, they would then bind the trust and the other party can recover from the trust assets.

Question 105

Does a trust amendment to a pour-over trust make after the execution of the will invalidate the trust?

Answer 105

No

Question 106

What supersedes what as it relates to the real property, a transfer on death deed or a will?

Answer 106

The transfer on death deed

Question 107

What if a transfer on death deed is to a wife and Will to children, and the wife and decedent divorce before decedent’s death, and the deed says nothing of divorce?

Answer 107

The divorce revokes the transfer.

Question 108

What is the dead man’s statute? In other words, what are to two key things about it:

Answer 108

1. In an action by or against a party that cannot testify (or by or against that person’s committee, personal respresentative, heir, trustee, or other representative) no judgment or decree shall be issued in favor of the adverse party upon their uncorroborated testimony.
2. It gets rid of the hearsay rule for the party that cannot testify. they can introduce all entries, memoranda, and declarations by that party made (1) while capable of testifying, and (2) relevant to the matter in issue.

Question 109

What is the presumption regarding a will that was in the possession of the decedent and which cannot be located at his death? How is it overcome? Does this permit a photocopy to be established as a will?

Answer 109

1. presumed that he destoyed it with the intent of revoking it
2. clear and convcing evidence of general statements that the decedent made about his testamentary intent, if those statements confirm the dispositive scheme in the decedent’s purported will (dead man’s statute)
3. yes

Question 110

Difference between personal representative and executor?

Answer 110

Its the same thing. The executor is someone named in the will to be the personal representative. the personal representative is just someone that administers the Will.

administrator is person appointed in intestate proceedings or testate where no executor is named.

Question 111

Who will serve as an administrator? different based on testate or intestate. Also what is the technical title for testate administrator?

Answer 111

Decedent died testate, but the will does not name an executor or the named executor is unable or unwilling to serve, the court appoints an administrator:
* Known as the administrator c.t.a. — which means “cum testamento annexo,” or “with will attached;
* Usually the administrator c.t.a. will be a residual beneficiary or a substantial beneficiary.

Decedent died intestate, the court appoints an administrator from among the decedent’s heirs

Question 112

Once appointed, how can an administrator or executor leave the position?

Answer 112

they can voluntary leave or be involuntarily removed

Question 113

When may a court remove an executor/administrator?

Answer 113

Whenever it appears proper to the court. Abuse of discretion standard. Friction between beneficiaries is insufficient. Removal or disqualification must benefit the estate. Examples of sufficient grounds for removal are fraud, gross negligence, or some other breach of duty.

Question 114

Once removed or having left, the court must appoint a replacement. What are the replacements called in intestate v. testate proceedings?

Answer 114

If the prior person was an administrator managing an intestate estate, the new administrator is known as the administrator d.b.n. (for administrator “de bonis non” —of the goods or property not administered).

If the prior person was an executor or an administrator c.t.a., the new person is known as the administrator c.t.a. d.b.n.

Question 115

When must a personal representative file an inventory?

Answer 115

within 4 months of being appointed

Question 116

What must the inventory include?

Answer 116

All of the personal estate under his control and supervision, the decedent’s interests in any multi-party account in any financial institution, all real estate over which he has the power of sale, and any other real estate that is an asset of the decedent’s estate where or not it is situated in VA.

Question 117

Does an income beneficiary of a trust forfeit their right to income accrued and undistributed at the time of their death?

Answer 117

No, but they no longer have an interest in the corpus, assuming someone else has a vested remainder.

Question 118

Definition of undue influence and standard for proving?

Answer 118

The person seeking to challenge the will must prove by clear and convincing evidence that measure were taken with respect to the testator, undeer the surrounding circumstances, the testator could not resist, that controlled the testator’s volition, and that induced the testator to do what he otherwise would not have done.

Question 119

How do you create a presumption of undue influence that shift the burden of product to the proponent? Show:

Answer 119

1. the testator was in a state of enfeebled mind (e.g., due to age or injury) when the will was executed;
2. the influencer was in a position of confidence or dependence; and
3. the the testator previously expressed an intention to make a contrary disposition of his property.

Question 120

A court can invalidate a will or a codocil procured through fraud. Requirements?

Answer 120

1. the wrongdoer misrepresented a mmaterial fact to the testator; and
2. the wrongdoer intended to decieve the testator in order to influence the testator to make a disposition of her property that she otherwise would not have made

Question 121

When is there a presumption of fraud? Shift of burden?

Answer 121

When the drafter is a major beneficiary under the will (or the spouse of one). Presumption shift the burden for producing contrary evidence, but not the burden of persuasion, to the proponent of ht ewill.

Question 122

Federal estate tax?

Answer 122

Applies at 13.6 million in 2024