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