wills Flashcards
For a gift to be valid
1) the donor must have the mental capacity and present intent to make a gift,
2) the gift must be delivered to the donee or his agent,
3) and the donee must accept the gift.
to prove the validity of a gift by a donor, the burden is on
the donee to establish the existence of gift validity elements by clear and convincing evidence.
The delivery requirement for a gift exists so as to provide
clear manifestation of the donor’s intention to divest himself of title and possession.
sufficient method of delivery of gift by writing of donor requires:
1) donor clearly expresses written intent to give a gift,
2) clearly describes the subject being gifted,
3) signs the document, and
4) passes the writing out of his control with
5) the intent that it reaches the grantee
The acceptance of a gift by the donee is
presumed
when the elements of a gift are satisfied, a delay in the physical transfer of the property until the death of the donor does
not invalidate the gift.
If a child born out of wedlock seeks to inherit from a deceased biological parent and the deceased’s parentage has not been previously established, the child (or someone acting for the child) must
file an affidavit in the circuit court and seek an adjudication of parentage within one year after the death of the parent.
Paternity is established by
clear and convincing evidence.
Virginia statute enumerates acceptable evidence of paternity, such as
1) evidence that the father openly cohabited with the mother during 10 months prior to the child’s birth,
2) permitted the child to use his surname,
3) claimed the child as his own on a government document,
4) voluntarily admitted the child was his in writing under oath, or
5) by scientifically reliable genetic testing.
written agreement to provide support for child out of wedlock, signed by the alleged father, and honoring such agreement is evidence of
parentage
The administrator of an intestate’s estate must first pay
1) any expenses and costs incurred in administering the estate
2) then any claims for the family allowance, a personal property exemption, and a homestead allowance to the surviving spouse
family allowance exemption amount
not to exceed $24,000, payable either in a lump-sum or no more than $2,000 a month for one year
personal property exemption amount
$20,000
homestead allowance amount
$20,000
Under intestacy, expenses and exemptions are paid, the administrator generally should distribute
one-third of the remaining estate to the intestate’s surviving spouse if the intestate is survived by any children or descendants who are not children or descendants of the surviving spouse
After 1/3 intestacy distribution to surviving spouse, the remaining two-thirds should be distributed to
the children or descendants of the intestate by representation
if there are no children of the intestate only, but children of intestate and surviving spouse together, then surviving spouse is entitled to
100 percent of the remaining estate.
If, the surviving spouse elected the homestead allowance, that spouse is not entitled to
a distribution from the intestate’s estate.
a surviving spouse may choose to take an elective share of the intestate’s augmented estate, which for a surviving spouse who was married to the intestate for at least 15 years, would be
one-half of the full value of the augmented estate.
A surviving spouse who chooses the elective share is entitled to
the homestead allowance in addition to the elective share.
Depending on the size of the augmented estate, Eliza may find it to her benefit to take an elective share of that estate because
based on the length of her marriage to Alex, she would be entitled to one-half of the augmented estate.
The standard method for will execution is
a signed and witnessed written instrument – an “attested will.”
An attested will must
1) be in writing and
2) signed by the testator (or a proxy at the testator’s direction and in the testator’s presence).
for an attested will, the testator must sign (or attest to her signature) in the presence of
1) at least two competent witnesses
2) present at the same time, and
3) the witnesses must subscribe the will in the testator’s presence.