Wills Flashcards
Lost will presumption
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
Recognized Wills in VA
Attested wills and holographic wills
Attested Will requisites
1) signed by testor who is over 18 and of sound mind
2) signed in presence of two witnesses (can be interested)
“Sound MInd”
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
proponents of the will have the burden of proving mental competence by
preponderance
Can the testator be legally incompetent/ under guardianship when executing will?
Yes, need to know nature of their property disposed and understand the business in which they are engaged in …
Need not retain all the force of intellect they once had and may even be legally incompetent to transact business
Undue Influence
inducement that causes testor to do that which he would otherwise not have done
challenger must prove by clear and convincing evidence
Bequests made out of kindness or affection
valid
Holographic will
Wholly in testor’s handwriting, signed, 2 disinterested witnesses who can verify signature, contain death talk
The Donor of a Gift must have
1) mental capacity;
2) present intent to make a gift;
3) donee accepts gift
donee must establish by clear and convincing evidence
Delivery of Gift
TITLE + POSSESSION
Donar shows clear manifestation of intent to divest himself of title and possession
Personal Property Passes Acccording to Laws of State Where
decedent was domiciled
Acceptance of Gift
acceptance by donee is presumed
Lost Will Presumption may be rebutted by
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
Willful desertion
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
Spouse remarries before previous marriage ends
VA prohibits a marriage entered into before the dissolution of an earlier marriage of one of the parties
Common law marriage
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
Disinheriting from Estate (Removing Someone from an estate)
Except for a spouse, a testor has right to disinherit or not account for someone in their estate
Trust Creation Requisites
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
Pour over trust
A will that adds property to an existing trust…does not need to be executed in accordance w same formalities as a will
Pour over trust requirements
1) in writing
2) identified under the will
3) trust executed before or concurrently w the will
Trustee Duty of good faith
duty to administer trust and invest trust assets in good faith, in accordance w its terms and purposes and interests of beneficiaries
Trustee’s dty of impartiality requires trustee to consider
the interests of both beneficiaries when deciding on trust investments
Uniform Fiduciary Principal and iNcome Act
Va has adopted UFPIA, which facilitates the balancing of interests between income beneficiaries and remaindermen
UFPIA gives trustee power to make
discretionary adjustements between principal and income
Common law grounds for removing trustee
1) Breach of trust
2) inability to cooperate w co-trustees
3) lack of fitness or
4) persistent failure to administer effectively
The Virginia UTC also permits removing a trustee when the court finds that
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
Upon Breach of Trust, Trustee is liable for
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
Support Trust Occurs when the settlor
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
Constructive Trust
court-ordered remedy that prevents unjust enrichment or restores property to its rightful owner.
arises to prevent what would otherwise be fraud
burden is clear and convincing evidence
Enforcement of Oral Promise to Transfer Land by Will requires
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
Gift List
If a will refers to a written statement or list to dispose of items of tangible personal property not otherwise specifically bequeathed
Gift List: Statement or list shall be given effect to the extent that it
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
Transfer on Death Deed
Deed states that transfer to the designated beneficiary was to occur at transferor’s death
WHEN & WHERE must a Transfer on Death Deed be recorded?
before transferor’s death in the CC where property was located; deed was never revoked
Language of will is construed considering
circumstances existing at death
Will is considered to take effect upon
death of testor…
VA anti lapse statute
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
a LAPSED BEQUEST FALLS INTO
Residuary estate, if none, intestate succession
Class Gift
when testor intends to make gift to a group of ppl
Class gift: when one class member deceased
surviving members of class will take gift when
When more class members are added
class members take less
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
file an affadavit in CC and seek an adjudication of parentage within 1 year after death of parent
VA Evidence of paterinity can be established by
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
when a testor makes a specific devise, and identified property is not a part of the testor’s estate at his death, gift is
adeemed and divisee receives nothing
However, exception for stocks
Ademption: Stocks Exception
W respect to stocks, the beneficiary would receive any shares another entity received as a result of a merger or sale of og company
When a person has executed a valid will, but does not dispose of all the property by will, then person dies
partially intestate
If intestate is survived by a spouse, then spouse will receive either
100% or 1/3rd of probate assets
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
1/3rd… remaining 2/3rds to children
Residuary Clause
Provision in a will or trust that instructs how to transfer assets not specifically mentioned elsewhere
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
decedent’s heirs under VA’s intestacy laws
When a person dies intestate, if there is no surviving spouse or children, then the estate descends to his kindred in the following order:
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
A validly executed will may be revoked in
whole or in part, including by operation of law
Revocation of Will upon divorce
if, after making a will, a testor is divorced, all provisions in the will in favor of the divorced spouse are revoked
Property devised to divorced spouse passes as if
divorced spouse predeceased the testor UNLESS A CONTRARY INTENTION IS APPARENT FROM THE WILL
Revocation of Will Upon Divorce: If it is a specific bequest, then bequest falls to
residuary taker… if none, gift passes under intestacy
Pretermitted heir/ Omitted child
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
Pretermitted heir/ Omitted Child: If child dies before his intestate share is passed to him
his share will be distributed according to the original will
Distributions to a minor
distributions from an estate cannot be directly made to a minor (under 18)
Procedure for Distrubution to Minor
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
Parent / legal guardian as guardian for purposes of child’s estate?
- No presumption that the child’s parent or legal guardian would be the guardian for purposes of distribution of the estate
Steps Guardian of estate must take
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
Lifetime gifts from parent to child of significant value are presumed an
adavancement of child’s intestate share to be taken into account in distribution of intestate estate of decedent parent at death
Advancement: If parent dies intestate, any child taking an intestate portion would have this lifetime gift into consideration if
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)
Disclaimer of willed property
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
A Disclaimer of someone from the will must be
1) in writing and signed
2) delivered to personal rep of estate or trustee or payor
Disclaimer must be recorded if
real property is at issue
Slayer Statute
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
Who does property vest in when the slayer held joint property with rights of survivorship with the decedent?
100% in estate of decedent
Descendants of Slayer (desc of murderer): the heir or distrubutee
is not affected by slayer’s conduct
Real property passes according to laws of state where
property is located
K not to revoke or amend will must be
explicit and will not be inferred simply from execution of reciprocal wills
Proof of contractual nature of the agreement btwn testors must be __ and ___; this can come in the form of
clear and satisfactory…
an express statement in the Wills;
testimony by witnesses as to “admissions” by testors; or
circumstances that imply an agreement
Cy pres doctrine 21 yrs
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
Trust Made for Care of Animal can include
more than 1 animal , but animals must be alive during settlors lifetime
How does a trustee of a testamentary trust qualify to serve as trustee
1) qualification w the clerk of the CC or the Ct
2) Furnish a bond with surety unless surety is waived; and
3) File an annual accountings unless the requirement is waived by instrument
How to revive / revoke will
Codicil
Codicil definition
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
Codicil must be executed in same formalities as
holographic will
What is needed to admit a will into probate?
Self proving affadavit
Lost will is presumed to be
destroyed with the intent to revoke
Proponent may overcome presumption that will was lost by
clear and convincing evidence that testator did not revoke the will. such as copy
Va anti lapse statute doesn’t apply to
Devises made to a surviving spouse
Trustees duty to comply with trust instrument and VA law/ good faith
trustees have a duty to administer a trust and invest assets in good faith, following the trust terms and purposes and the beneficiaries interests…
must cmply with VA UTC, uniform prudent investor act and Unfiform fiduciary principal and income act
Trustee duty of loyalty
trustee must administer trust solely in beneficiaries interest
A trusts transaction may be voidable by beneficiary if it involves
trust property and is affected by conflict between the trustee’s fiduciary and personal interests
There is a Presumption of a trust duty of loyalty conflict if a K is entered into by
trustee or trustee’s close relatives; agent or attorney; or entity in which trustee has an interest that might affect the trustee’s best judgment
A trustee may defend a transaction if
it was authorized by trust terms, ct order or consent of affected beneficiaries
Trustee: Commingle
trustee may not commingle trust porperty w property of another trust or her own personal property
Fee agreement or payment of compensation to trustee if allowed if
it is fair to the beneficiaries
Standard of prudent investor (trustee) trustee must
i) consider the purposes, terms, distributional requirements and other circumstances of the trust and ii) exercise reasonable care, skill, and caution
Whose decision controls when disagreement between co-trustee occurs,
majority decision…each trustee must exercise reasonable care to prevent a cotrustee from committing a serious breach of trust and compel co trustee to redress serious breach
Remedies for breach of trust
1) compelling trustee to perform duties
2) enjoining trustee from committing a breach;
3) compelling trustee to pay money, restore property
4) suspending or removing the trustee
5) reducing or denying trustee compensation
Contribution from cotrustees for breach
cotrustee may obtain contribution from another co-trustee who is also liable for breach of trust unless co-trustee seeking contribution
i) was substantially more at fault than other trustee; or
ii) committed a breach in bad faith or with reckless indifference to the trust purposes or beneficiaries’ interests
How long notice does trustee have to provide
30 days
Trustee furnishing reports
unless instrument says otherwise, trustee must furnish periodic reports of trust property (including mrkt value, liabilities, receipts, disbursements and trustee compensation, to all permissible distributees of trust income and other beneficiaries who request a report
Must trustee furnish copy of trust instyrument to beneficiary upon request?
Yes
Is a trustee who properly enters a K in a fiduciary capacity while administering a trust personally liable for that K?
No so long as K discloses fiduciary capaicty
Is a trustee personally liable for torts committed in course of administration
No so long as trustee is not personally at fault
Common law grounds for removing a trustee
i. breach of trust
ii. inability to coopoerate w co trustees
iii) lack of fitness
iv) persistent failure to administer effectively
statutory grounds for removal of trustee
i) sustantial change in circumstances or all beneficiaries request
ii) removal serves best interest of beneficiaries
iii) removal is not inconsistent w material purpose of trust
iv) suitable co-trustee or successor is available
Can creditor reach revocable trust?
Yes, during settlor’s life, regardless of whether settlor is beneficiary
Can creditor reach irrevocable trust
they can reach maximum amount that can be distrubuted to or for settlor’s benefit
Testamentary Trust
trust established according to the instructions in a person’s will and testament.
Is a trust liable for K entered into by trustee in scope of administering trust?
Yes, whether or not trustee is personally liable for claim
Trustee duty to prevent cotrustee breach
each trustee must exercise reasonable care to prevent a cotrustee from committing a serious breach of trust and compel a cotrustee to redress a serious breach of trust
Will a dissenting trustee who joins in on action at direction of majority be liable for breach of trust?
No, so long as they notified any cotrustee of the dissent at or before the time of the action unless the action is a serious breach of trust
Trustee’s duty of impartiality
trustee shall act impartially in investing, managing and distributing the trust property, giving due regard to the beneficiaries’ respective interests….remaindermen are considered beneficiaries
Spendthrift trust
Trust with a clause in it that prevents the free spending
person from raiding the trust assets for unwise expenditures or seeking to pledge
his interests in a trust for a loan
Spendthrift provision
prevents against voluntary or involuntary transfers and thus protects against creditor claims
