Wills Flashcards
three ways to die
testate: valid will covering all property
intestate: without a valid will
partially testate/intestate: valid will that doesnt cover all property
Decedent’s personal estate
all real and personal property owned by D at death
doesnt include jointly owned property or property that is designated to someone else
Survival
a beneficiary has to survive the decedent
120 hour rule: must survive by 120 hours
two exceptions:
1)will can change by lengthening or shortening
2) if property would have to go to the commonwealth
adopted children
becomes child of adopting parent and ceases to be child of biological parent unless they are married to the adopting parent
VA recognizes adult adoption
child conceived through assisted conception and parent consents
must be in writing
must be given before conception
child must be born during consenting person’s lifetime or within 10 months after their death
children born out of wedlock
first apply rules about adoption and assisted conception
if not:
1)child born out of wedlock always child of biological mother
2)biological father if he marries at some point mother or paternity established by clear and convincing evidence
must file an affidavit in the circuit court and ask for adjudication of parentage within one year of the parent’s death
doesnt apply if:
1)parentage already established
2)admission of parentage under oath, or
3) prior proceeding to determine parentage
termination of parental rights
parent loses the right to inherit from or through the child, unless order says otherwise
does not mean child loses right to inherit from parent or that the parent’s relatives can inherit from child
multiple lines of inheritance
a child who is related to decedent through two different relationships only takes a single share- choose whichever is larger
after born children
conceived before death but born after: inherits as if they were born during lifetime
Slayer statute
has committed murder or voluntary manslaughter and has been convicted in criminal proceeding or shown in a civil proceeding by preponderance of the evidence
killer treated as having predeceased: through inheritance can still happen
insanity may not matter- civil
doesnt apply to self-defense
Disclaimers and what is required to be valid
a refusal to accept an interest in property
to be valid:
1) disclaimer must be made before the disclaimant accepts the interest or attempts to transfer it
2)disclaimer must be in writing
3) must describe the interest that is disclaimed and must declare that the interest is disclaimed
4)disclaimant must sign and deliver it to the executor or administrator
Protections against disinheritance and their priority
1)administrative costs and expense
2) family estate
3)exempt property
4) homestead
5)use of the family residence
6)elective share
can be waived in a valid agreement
Family allowance protection
payment made from estate to provide for the maintenance of surviving spouse/minor children during the administration of the estate
reasonable allowance: no more than lump sum of $24,000 or monthly payment of 2,000 for 1 year
higher amount must be approved by the court
anything received will be IN ADDITION to what they will receive later
exempt property
gives surviving spouse up to $20,000 from following types of property:
furniture
cars
furnishings
appliance
personal effects
if no surviving spouse: children entitled to equal shares of the 20,000
net value: subtract any debts on it
DOES NOT reduce anything else entitled to
Homestead allowance protection
$20,000
goes to surviving spouse- if none, children
IS IN LIEU of anything owed later
if what they are owed is less than 20,000 they can bring up the total to 20,000
January 1 2017
before: could not claim both elective share and homestead
after: can claim both
use of family residence protection
surviving spouse has the right to continue to live in the principal residence until:
1)there is a final court order, or
2)surviving spouse and other interested parties reach an agreement
the elective share basic rule under old way
if children/other descendants: get 1/3
none: 1/2
also entitled to interest at 6% from date of death
disclaims count toward it
every other recipient is charged pro rata to pay it out
date that elective share rule changed
Jan 1, 2017
augmented estate under old rule
1)decedent’s personal estate:
total amount that will pass by will/intestacy minus the protections (except homestead allowance)
+
2)the decedent’s augmented estate:
i)any property that the surviving spouse received by lifetime gift or non probate transfer as long as surviving owns it at time of death
ii)property that surviving received by lifetime gift from decedent and then transferred without economic consideration
iii) various transfers made by decedent without economic consideration
how to get the elective share under old rule
surviving spouse must claim it within six month of admission to probate
this deadline can be extended if suit pending regarding it for 90 days after the end of the suit
decedent has to have died while domiciled in VA
spouse can waive- has to be voluntary/fair/reasonable
elective share under the new rules
one half of the marital property portion of the augmented estate
augmented estate under the new rules
1)decedents net probate estate
2)any non-probate transfers from decedent to surviving
3)certain transfer made by decedent to 3rd parties:Any non-probate transfers to third parties;
* Any property transferred by the decedent where the decedent retained a right of
possession or enjoyment of the property (or of the income from the property), including any property transferred by the decedent where the decedent created a power over the property for the decedent’s benefit;
* Any property that the decedent transferred to a third party during the marriage and within 2 years of the decedent’s death.
EXCEPTION: any property transferred to 3rd parties is not included if decedent received full consideration or surviving consented
4) property owned by the surviving spouse at the death of the decedent
determining elective share under the new rules
less than a year: 3%
one year: 6%
2-10: add 6 for each year
11-15: add 8
what order is the elective share satisfied under the new rules
1) out of the marital property portion of surviving
2) full value of whatever passes from decedent to surviving through transfer
3)on a pro rata basis out of the transfers to 3rd parties
how to get elective share under the new rules
surviving must file an election within six months of will be admitted or administrator being qualified
within six month of that must file a complaint to determine the elective share
can withdraw at anytime before court makes final determination
willful desertion and abandonment
if surviving willfully desert the decedent and continues after death, surviving loses the elective share/other protections
abandoned spouse does not lose these rights
first person who has intestacy rights and what they get
look to surviving spouse
if there are other descendants from outside of the marriage: spouse gets 1/3, they get 2/3
no outside descendants: spouse gets it all
if no spouse what the order for intestacy
children and their descendants
parents
siblings and their descendants
split between both sides of grandparents and their descendants
great grandparents and their descendants
if nothing- same process but on the other side
last resort for intestacy
it escheats to the Commonwealth
unlikely because of the laughing heir statute: no matter how remote, a relative gets it
how money is divided in intestacy
each people on the same line get divided equally between
modern per stirpes: base it off of the first line with a surviving person
special considerations for intestacy
1)half blood relatives: have 1/2 a share
doesnt reduce if they are the only person in the class
2) adopted child: same rights as biological child with adopted parents
with biological parents only have a right to intestacy if:
i)adopted by spouse of biological parent
ii)involuntary termination of parental rights
3) foster children and step children- no rights unless adopted
advancements and intestacy
If the intestate made substantial gifts during her lifetime to someone who becomes an heir after the intestate’s death, the gifts may be considered an advancement and may offset the heir’s intestate share: hodgepot
If the advancements turn out to be more than the heir would get under this process, the heir can keep what he or she received by lifetime gift (i.e., does not need to pay anything to the other heirs).
two types of wills
attested will: signed by the testator and witnessed by third parties
holographic will: not witnessed by is in the handwriting of the testator
requirements of an attested will
1)must be in writing
2) must be signed by the testator (or proxy in the presence)
flexibility
3)must sign/acknowledge the will in the presence of at least 2 competent witnesses (can be interested)
4)the witnesses must subscribe the will, since in testators presence
conscious presence test: witnesses dont have to be in testator’s sight, just have to know they are there and could see them with exerting some effort
codicil
an amendment to the will
must meet the 4 reqs
deemed re-executed as of the date of the codicil
may revive a revoked will
incorporation by reference
allows for a document that is not part of the will to be treated as though it were
three reqs:
1)must exist at the time the will is executed
2)face of the will must indicate that the doc is in existence at the time the will is executed
3) will must identify and describe doc with reasonable certainty
memo that disposes of tangible personal property: need only be identified with reasonable certainty, doesnt have to exist at the time of the will
reqs of a holographic will
1)must entirely be in the handwriting of the testator
flexible- can carve out
2) two disinterested witnesses must identify the handwriting as the testator’s
3) testator must sign the will or have someone sign as proxy
*must manifest the testator’s intent to make a last and final disposition: testamentary intent
harmless error doctrine
if testator does not satisfy one of the reqs the will can still be treated as a valid will
proponent of the will must show by clear and convincing that testator intended it to be his will
cannot excuse signature req except:
1)two people mistakenly sign each other’s wills
2)testator signs the self proving affidavit rather than the will
non-probate transfers and will reqs
revocable trusts: dont need to satisfy
pour over trust: sufficient if terms of the will identify the trust and the terms of the trust be set forth in a separate written document
real property: can be transferred through a transfer on death clause
contracts relating to wills
generally are enforced
real estate normally requires SOF, but exceptions when:
1)agreement is certain/definite in its terms by clear and convincing
2)party seeking enforcement performs under the contract
3) failure to enforce the contract would work a fraud on the party seeking enforcement
court may impose a construct trust
even if no enforceable K- court may order compensation
ways that a will is revoked
by physical act
by writing (implicit
divorce/annulment
revoking a will by physical act
have to have the intent of revoking it- accidental not sufficient
any physical act is sufficient
can be partial
has to touch the face of the will
revoking by new writing
can be either a new will or a codicil- must meet the requirements to be valid
express: if it revokes prior will, also revokes that will’s codicils
implict: triggered by an inconsistency between old and new will
dependent relative revocation
a court cancels a revocation on the theory that the revocation was conditional on a second act that newer took place- you revoke the old will believing there will be a new will which never happens
revocation through divorce/annulment
former spouse is treated as having predeceased
if you still want the ex-spouse in the will- have to update it after the divorce
revival of a will
happens when both first and second wills have been revoked
1)first will expressly revoked by second will, revocation does not revive the first will
2) implicitly revoked by second will- does revive
3) testator can still revive first will by re-executing it
4) revoke by divorce are revived if parties remarry before testator executes a new
lost wills
if a decedent had a will but it cannot be found after their death and it was in their possession, rebuttable presumption that they destroyed it
duplicate originals are admitted, but photocopies are not- but can be admitted to show testator’s intent
burden of proof is on person arguing in favor of the will
will as an Ambulatory document
once, executed, the will can be change/revoked at any time before the testator’s death
interpreted as though it were executed immediately before death
lapsed gifts
a gift made by will to a beneficiary who does not survive the decedent is said to lapse
the gift becomes void
anti-lapse rules
1)if gift is to grandparent/their beneficiary- gift passes to that person’s descendants
2) class gifts: just goes to the rest of the people in the class
3)residuary is treated like a class gift
*testator can override by language in the will
what happens to a gift if none of the anti-lapse rules apply
1) if it was not part of the residue, it becomes part of the residue
2) if was in the residue, passes through intestacy
Cy pres
rescues gifts to charitable organizations that no longer exist- try to gift it in a way that still fits with the intended purpose
omitted spouses in a will
if testator dies with a will executed before she married and if the will omits the surviving spouse, gets intestate share
unless it appears that the omission was intentional
omitted children in a will
child born after execution of will and not provided for:
1: no living children when will executed- intestate share
2) one+ living children: the smaller of the intestate share or the largest amount that any other child receives under the will
types of ademption
ademption by extinction
ademption by satisfaction
ademption by extinction
when a will makes a specific bequest and that item of property is not in the estate at the time of death
exceptions:
1) securities- include any other security of same entity acquired by reason of a corporate event
2)real property: entitled to condemnation/insurance proceeds if they are unpaid at the testator’s death
3) disability: was sold while testator was under disability entitled to the proceeds of the sale
ademption by satisfaction
occurs when a testator transfers property to a beneficiary during the beneficiary’s lifetime if:
1)will provides for deduction of the transfer
2) testator declares in a contemporaneous writing that the transfer is in satisfaction of the bequest
3) beneficiary acknowledges in writing that the transfer is in satisfaction of the bequests
exoneration of liens
generally abolished in VA
unless there is a clear statement otherwise in the will
abatement
when estate doesnt have sufficient assets to pay creditors/devisees, creditors are paid first and devises are cut back
order of abatement:
1)any property that would pass by intestacy
2) property passing as residue of the estate
3) general bequests
4) demonstrative bequests
5) specific bequests
insolvency
when estate cannot cover its debts
paid in following order:
1) Costs and expenses of administration
2) family allowance, exempt property, and homestead allowance
3) funeral expenses up to 4,000
4) any debts/taxes that have a preference under fed law
5) medical expenses from decedent’s final illness- 2150 for each hospital/nursing home, 425 for each individual
6) debts/taxes owed to commonwealth
7)debts payable as a fiduciary
8) debts for arrearage of child support
9) debts and taxes due to state and local gov
10) all other claims
general rule for interpreting wills
the plain meaning of the will controls
what to do if there are ambiguous terms in the will
extrinsic evidence of facts/circumstances becomes admissible
may include evidence about:
1)state of testator’s property
2) testator’s relations with specific people
3) testator’s opinions
4) testator’s habits of thought and of language
equivocations
the terms of the will apply to two or more people or two or more things
extrinsic evidence is admissible to resolve an equivocation
mistake of fact/law
if there is clear and convincing evidence that the testator’s intent and the terms of the will were affected by a mistake the court can reform the will
can be reformed even if the terms of the will are unambiguous
repugnancy doctrine
happens when the will conveys a life estate and gives the life tenant the absolute power to consume, assign, or dispose of the property
result: fee simple
remainder interest is struck out as repugnant
legal standing to contest a will
contestant must be an interested person
gas a legally ascertainable pecuniary interest that will be affected by whether the will is probated or set aside
mental capacity to make a will
must be at least 18 years old and have mental capacity
must be shown by a preponderance of the evidence
testator has to be capable of recollecting his property, the natural objects of his bounty, and their claims upon
relevant time to assess: when the will is executed
burden of proof for showing mental capacity
on the proponent of the will to prove by clear and convincing evidence
complying with all reqs creates a presumption of capacity
burden of producing evidence then shifts to contester but burden of persuasion stays with proponent
guardianship is not prima facie evidence of lacking mental capacity
insane delusion
doesnt automatically mean you lack capacity
an irrational, persistent belief in an imaginary state of facts- really just can affect the will
undue influence
influence that destroys the testator’s free will, a set of conditions that testator cant resist, controls the testator’s volition, and that induces the testator to do something that the testator otherwise would not due
creating a presumption of undue influence:
1)testator suffered from weakness of mind when will was made
2) testator named a beneficiary who had a relationship of confidence or dependence with the testator
3) testator previously had expressed an intention to make a contrary disposition of her property
burden of production shifts to proponent, persuasion remains with contestant
fraud
reqs:
1) wrongdoer misrepresented a material fact to the testator, and
2) wrongdoer intended to deceive the testator in order to influence the testator to make a disposition of her property that the testator otherwise wouldnt have made
shifts burden for producing contrary evidence to the proponent
if the drafter of the will is also a major beneficiary, presumption of fraud
public policy limitation
cant infringe on religious beliefs
marriage: cant bar a person from marrying/force them to marrying one person, but can prohibit them from marrying one person
will generally enforce a no-contest provision that disinherits any beneficiary who contests a will
jurisdiction for will probate
circuit courts
uncontested probate matters: delegated to deputy clerks
contested: circuit court judges
venue for will probate
following order of priority:
1)where decedent had a house/known place of residence
2) where there is real property owned or devised by decedent
3) decedent dies or had personal property
process for proving the validity of an attested will
1)self-proving affidavit, or
2)present testimony from the witnesses about:
i) authenticity of their signatures
ii) other reqs were met
iii) mental capacity and testamentary intent
process for proving the validity of a holographic will
proponent must produce two disinterested witnesses who testify that the will is completely in the handwriting of the testator
attestation clause
states that the execution of the will met the formal reqs and that testator had sufficient capacity
provides prima facie evidence that the will was properly executed
self proving affidavit
signed by both the testator and witnesses saying reqs have been met
signed at same time as will and is attached to the will
creates a presumption that the will is valid
executors and adminstrators
appointed by the will: executor
appointed by the court: administrator
rules for qualifying as an executor/administrator
1) must be 18, legally competent
2) swear oath:
i)perform duties to best of judgment
ii) if probate: writing is last true will
iii) not probate: left no will
3)must post fiduciary bond in equal value to estate
4) may have to post security on bond
5) if non resident- consent to service, unless resident co-executor
process for appointed an administrator
1)Within the first 30 days of death, the court may appoint a sole distributee as administrator or a distributee who provides written waivers from the other distributees.
2)After the first 30 days following death, the court may appoint the first distributee who applies to be appointed administrator.
3)If there is no administrator after 45 days following death, any non-profit charitable organization that operated as the conservator or guardian for the decedent may be appointed administrator.
4)If there is still no administrator after 60 days, a creditor of the decedent’s estate can be appointed as administrator.
special rules for small estates
Some wills can be offered for probate without anyone having to qualify as an executor or as an administrator c.t.a., and some intestate estates can be administered without anyone having to qualify as administrator.
o If the total value of the personal estate is $50,000 or less, the beneficiaries are permitted to collect the assets of the estate without formal administration; they simply have to wait at least 60 days from the decedent’s date of death.
ministerial work of an executor/administrator
1)At the time the executor or the administrator is first qualified, she must file with the court or the clerk a list of all the decedent’s heirs.
2)An executor or administrator c.t.a. must provide a notice of probate to the decedent’s surviving spouse (if there is one), any other heirs, and anyone else who is a beneficiary under the will that is offered for probate.
3)Within four months of qualification, the executor or administrator must file with the commissioner of accounts for the county or city where the estate is being administered an inventory of all estate assets.
4)Within 16 months of qualification, the executor or administrator must file with the commissioner of accounts an accounting of all the receipts and disbursements during the first year of the estate.
testamentary trust
the testator must evidence an intent to create a trust, name one or more beneficiaries of the trust, indicate the duties that the trustee must perform, and fund the trust. While generally the beneficiary of a trust must be a person, Virginia recognizes a trust may be created for the care of an animal who is alive when the settlor dies provide the amount place in trust is not excessive. When a person who is named as a trustee cannot or will not serve and trust makes no provision for another trustee, the trust is not terminated but instead the court can appoint a replacement trustee.
