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Property/Corps/Wills/Domestic Relations > Wills > Flashcards

Wills Flashcards

1
Q

Lost will presumption

A

General rule in Va is that a will whcih was in the possession of the decedent and which cannot be located at his death is presumed to have been destroyed by the decedent w the intent to revoke

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2
Q

Recognized Wills in VA

A

Attested wills and holographic wills

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3
Q

Attested Will requisites

A

1) signed by testor who is over 18 and of sound mind

2) signed in presence of two witnesses (can be interested)

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4
Q

“Sound MInd”

A

at time will was executed, he is

1)capable of recollecting his property and the nature of his bounty and

2) knew the business about which he was engaged and how he wished to dispose of his property

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5
Q

proponents of the will have the burden of proving mental competence by

A

preponderance

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6
Q

the testator need not retain all the force of intellect that he once had and may even be legally incompetent to transact business; evidence of sickness or impaired intellect at other times is insufficient, standing alone, to render a will invalid.
- Even being placed under guardianship is not prima facie evidence of a lack of capacity

A
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7
Q

Undue Influence

A

inducement that causes testor to do that which he would otherwise not have done

challenger must prove by clear and convincing evidence

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8
Q

Bequests made out of kindness or affection

A

valid

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9
Q

Holographic will

A

Wholly in testor’s handwriting, signed, 2 disinterested witnesses who can verify signature, contain death talk

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10
Q

The Donor of a Gift must have

A

1) mental capacity;
2) present intent to make a gift;
3) donee accepts gift

donee must establish by clear and convincing evidence

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11
Q

Delivery of Gift

A

TITLE + POSSESSION

Donar shows clear manifestation of intent to divest himself of title and possession

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12
Q

Personal Property Passes Acccording to Laws of State Where

A

decedent was domiciled

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12
Q

Acceptance of Gift

A

acceptance by donee is presumed

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13
Q

Lost Will Presumption may be rebutted by

A

clear and convincing evidence of general statements that decedent made about his testamentary intent, if those statements confirm the dispositive scheme in decedent’s will

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14
Q

Willful desertion

A

if surviving spouse willfully deserts her spouse and such desertion continues until death of the spouse, the party who deserted the deceased spouse will be barred of all interest in the estate of the other by intestate succession, elective share, exempt property, family allowance and homestead allowance

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15
Q

Spouse remarries before previous marriage ends

A

VA prohibits a marriage entered into before the dissolution of an earlier marriage of one of the parties

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16
Q

Common law marriage

A

when parties agree they are married, cohabit as married and hold themselves out in public as married
HOWEVER, VA does not recoggnize common law marriage

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17
Q

Disinheriting from Estate (Removing Someone from an estate)

A

Except for a spouse, a testor has right to disinherit or not account for someone in their estate

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18
Q

Trust Creation Requisites

A

1) Settlor must have capacity to create trust (18)

2) Settlor must have intent to create a trust

3) Trust has a definite beneficiary

4) trustee has duties to perform

5) same person is not the sole trustee as sole beneficiary

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19
Q

Pour over trust

A

A will that adds property to an existing trust…does not need to be executed in accordance w same formalities as a will

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20
Q

Pour over trust requirements

A

1) in writing
2) identified under the will
3) trust executed before or concurrently w the will

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21
Q

Trustee Duty

A

duty to administer trust and invest trust assets in good faith, in accordance w its terms and purposes and interests of beneficiaries

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22
Q

Trustee’s dty of impartiality requires trustee to consider

A

the interests of both beneficiaries when deciding on trust investments

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23
Q

Uniform Fiduciary Principal and iNcome Act

A

Va has adopted UFPIA, which facilitates the balancing of interests between income beneficiaries and remaindermen

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24
Q

UFPIA gives trustee power to make

A

discretionary adjustements between principal and income

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25
Q

Ct may remove a trustee under the Virginia Unifrom Trust COde for

A

1) Breach of trust
2) inability to cooperate w co-trustees
3) lack of fitness or
4) persistent failure to administer effectively

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26
Q

The Virginia UTC also permits removing a trustee when the court finds that

A

1) there has been a substantial change in circumstances or removal is requested by all the qualified beneficiaries

2) removal best serves interests of all the beneficiaries

3) removal is not inconsistent w a material purpose of the trust

4) Suitable co-trustee or successor trustee is available

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27
Q

Upon Breach of Trust, Trustee is liable for

A

1) the amount required to restore the value of the trust property and trust distribitions to what they would have been had the breach not occurred; or

2) the profit the trustee made by reason of the breach

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28
Q

Support Trust Occurs when the settlor

A

instructs that trustee can only distribute so much income as is necessary per terms of the trust ….

May include for beneficiary’s education, health and support

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29
Q

Constructive Trust

A

arises to prevent what would otherwise be fraud

burden is clear and convincing evidence

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30
Q

Enforcement of Oral Promise to Transfer Land by Will requires

A

1) agreement is certain and definite in its terms

2) p performed pursuant to the agreement; and

3) Failure to enforce the agreement would amount to fraud on P

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31
Q

Gift List

A

If a will refers to a written statement or list to dispose of items of tangible personal property not otherwise specifically bequeathed

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32
Q

Gift List: Statement or list shall be given effect to the extent that it

A

describes items of tangible PP and their intended recipients w reasonable certainty and is signed by the testor although it does not satisfy requirements for a will

33
Q

Transfer on Death Deed

A

Deed states that transfer to the designated beneficiary was to occur at transferor’s death

34
Q

When must a Transfer on Death Deed be recorded?

A

before transferor’s death in the CC where property was located; deed was never revoked

35
Q

Language of will is construed considering

A

circumstances existing at death

36
Q

Will is considered to take effect upon

A

death of testor…

37
Q

VA anti lapse statute

A

if a will beneficiary dies before the testor, gift lapses.

However, in VA, such a gift could be saved under the anti lapse statute so long as predeasing beneficiary was a grandparent or lineal descendent of a grandparent of the testor

DOES NOT APPLY TO SURVIVING SPOUSE

38
Q

a LAPSED BEQUEST FALLS INTO

A

Residuary estate, if none, intestate succession

39
Q

Class Gift

A

when testor intends to make gift to a group of ppl

40
Q

Class gift: when one class member deceased

A

surviving members of class will take gift when

41
Q

When more class members are added

A

class members take less

42
Q

What must a child born out of wedlock file w the CT in order to inherit from a deceased biological parent when the deceased’s parentage has not been previously established

A

file an affadavit in CC and seek an adjudication of parentage within 1 year after death of parent

43
Q

VA Evidence of paterinity can be established by

A

clear and convincing evidence that

1) father openly cohabitated w mother during 10 months prior to child’s birth

2) father permitted child to use his surname

3) father claimed child on GOV DOCUMENY

3) Voluntarily admitted child was his under oath or by DNA testing

44
Q

when a testor makes a specific devise, and identified property is not a part of the testor’s estate at his death, gift is

A

adeemed and divisee receives nothing
However, exception for stocks

45
Q

Ademption: Stocks Exception

A

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

46
Q

When a person has executed a valid will, but does not dispose of all the property by will, then person dies

A

partially intestate

47
Q

If intestate is survived by a spouse, then spouse will receive either

A

100% or 1/3rd of probate assets

48
Q

The spouse’s share is ___ if the intestate was survived by any children or descendants who are not children or descendants of the surviving spouse…. remaining ___ will pass to children or descendant of the intesttae by representation

A

1/3rd… remaining 2/3rds to children

49
Q

Residuary Clause

A

Provision in a will or trust that instructs how to transfer assets not specifically mentioned elsewhere

50
Q

When a will does not include a residual provision, any part of the estate of a decedent not effectively disposed of through the will passes to

A

decedent’s heirs under VA’s intestacy laws

51
Q

When a person dies intestate, if there is no surviving spouse or children, then the estate descends to his kindred in the following order:

A

1) mother and father, or survivor; if one, to

2) brothers and sisters and their descendants; if none to

3) aunts and uncles and their decendants

52
Q

A validly executed will may be revoked in

A

whole or in part, including by operation of law

53
Q

Revocation of Will upon divorce

A

if, after making a will, a testor is divorced, all provisions in the will in favor of the divorced spouse are revoked

54
Q

Property devised to divorced spouse passes as if

A

divorced spouse predeceased the testor UNLESS A CONTRARY INTENTION IS APPARENT FROM THE WILL

55
Q

Revocation of Will Upon Divorce: If it is a specific bequest, then bequest falls to

A

residuary taker… if none, gift passes under intestacy

56
Q

Pretermitted heir/ Omitted child

A

a child not provided for nor mentioned in the will is entitled to the portion of testor’s estate as he would have been entitled to if testor had died intestate

57
Q

Pretermitted heir/ Omitted Child: If child dies before his intestate share is passed to him

A

his share will be distributed according to the original will

58
Q

Distributions to a minor

A

distributions from an estate cannot be directly made to a minor (under 18)

59
Q

Procedure for Distrubution to Minor

A

Executor of estate would need to petition the Ct to have a guardian of the estate appointed to manage the property passing to a minor

60
Q

Parent / legal guardian as guardian for purposes of child’s estate?

A
  • No presumption that the child’s parent or legal guardian would be the guardian for purposes of distribution of the estate
61
Q

Steps Guardian of estate must take

A

1) post bond, unless will waives doing so

2) provide a lis of heirs at time of qualification;

3) file an inventory within 4 months of appointment;

4) file an accounting within 16 months of qualification and annually thereafter

62
Q

Lifetime gifts from parent to child of significant value are presumed an

A

adavancement of child’s intestate share to be taken into account in distribution of intestate estate of decedent parent at death

63
Q

Advancement: If parent dies intestate, any child taking an intestate portion would have this lifetime gift into consideration if

A

if the gift was meant by parent to be an advancement of what the child would take upon parent’s death

(what child would have taken w/o gift minus gift)

64
Q

Disclaimer of willed property

A

Intestate heir or Will beneficiary can disclaim or renounce any interest, in whole or in part, that they would receive

Disclaimed interest passes as though disclaimant predeceased decedent

65
Q

Disclaimer must be

A

1) in writing and signed

2) delivered to personal rep of estate or trustee or payor

66
Q

Disclaimer must be recorded if

A

real property is at issue

67
Q

Slayer Statute

A

one who is convicted of murder or voluntary mansalughter (by clear and convincing evidence) is barred from taking any economic benefit from that person by deed, will, intestacy, or non probate transfer

68
Q

Who does property vest in when the slayer held joint property with rights of survivorship with the decedent?

A

100% in estate of decedent

69
Q

Descendants of Slayer (desc of murderer): the heir or distrubutee

A

is not affected by slayer’s conduct

70
Q

Real property passes according to laws of state where

A

property is located

71
Q

K not to revoke or amend will must be

A

explicit and will not be inferred simply from execution of reciprocal wills

72
Q

Proof of contractual nature of the agreement btwn testors must be __ and ___; this can come in the form of

A

clear and satisfactory…

an express statement in the Wills;

testimony by witnesses as to “admissions” by testors; or

circumstances that imply an agreement

73
Q

Cy pres doctrine 21 yrs

A

a remainder interest in a charitable trust that is triggered by the termination of the trust’s specifc charitable purpose must give way to the application of the doctrine of cy pres if more than 21 years have passed since creation of trust

74
Q

Trust Made for Care of Animal can include

A

more than 1 animal , but animals must be alive during settlors lifetime

75
Q

What steps must a trustee of a testamentary trust take to qualify to serve as trustee

A

through qualification w the clerk of the CC or the Ct

76
Q

How to revive / revoke will

A

Codicil

77
Q

Codicil definition

A

a document that effectively creates a new will that supersedes any existing will, starting from the date of the codicil.

However, the codicil must have been written in relation to the revoked will. If a new will was written to replace the revoked will, the previous will can be revived by revoking the new will

78
Q

Codicil must be executed in same formalities as

A

holographic will

79
Q

What is needed to admit a will into probate?

A

Self proving affadavit

Property/Corps/Wills/Domestic Relations (8 decks)

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