Wills Flashcards
If a decedent dies intestate, then Virginia law directs the distribution of property to
Descendants per capita w representation
What is spouse’s share of intestate’s estate when the decedent is survived by a child who is not child of survived spouse?
1/3rd… 100% if not survived by a child not of the surviving spouse
Who bears the burden of proving testamentary capacity
Proponent
Who bears the burden of proving testamentary capacity
Proponent
can create a presumption of capacity by showing
testator complied with the formal requirements of execution.
What is result when a decedent’s marriage is judicially dissolved prior to his death, but before death he provided for the payment or transfer at death of an interest in an asset to or for the benefit of the decedent’s former spouse
The payment or transfer is Void
If a decedent’s marriage is judicially dissolved prior to his death, then any designation made by the decedent prior to the dissolution providing for the payment or transfer at death of an interest in an asset to or for the benefit of the decedent’s former spouse is
Void
The decedent’s interest in the asset then passes as if the decedent’s former spouse
Predeceased him
Among the requirements for an attested will is that the testator must either
Sign the will or ackowledge it in front of two competent witnesses who are present at the same time
A person who is convicted of murder or manslaughter of the decedent is
Barred from taking property because of the decedent’s death
If the slayer held joint property with rights of survivorship with the decedent, then the property vests
100% in estate of decedent
Unless the will provides otherwise, a person must survive the decedent by ___ hours before he can inherit as an heir in intestacy or as a beneficiary under a will
120
If a decedent dies intestate, then Virginia law directs the distribution of property among descendants as per
Capita w representation
Under VA’s per capita w representation rule, the division of the decedent’s estate is made at
the first generational level for which there are living takers.
Pour over devise
distribution of a decedent’s assets upon her death are effectively determined by the terms of a trust rather than a will
A pour over devise is permissible if
trust is sufficiently identified in the will, and its terms are set forth in a written instrument other than the will.
A third party can revoke a will on behalf of the testator as long as
the revocation is at the testator’s direction and in the presence of the testator.
If a testator’s will fails to provide for a surviving spouse who married the testator after the execution of the will, the omitted spouse receives
an intestate share of the testator’s estate (either 100% or one-third) unless it appears from the will or from the provisions of a premarital or marital agreement that the omission was intentional.
For decedents dying on or after January 1, 2017, the amount of the elective share is
one-half of the value of the marital-property portion of the augmented estate
Va anti lapse statute
if the deceased beneficiary is a grandparent or descendant of a grandparent of the testator, then a gift is presumed in favor of the deceased beneficiary’s descendants who survive the testator in accord with the per capita with representation scheme for intestacy distribution.
What happens when omitted child is not accounted for in will?
Will is revoked by operation of law. intestate succession will take place and the will is ignored.
Life estate
present possessory interest in certain property for the lifetime of another person
Duty of Person who holds life estate in property
duty to maintain the premises and not interfere with the interests of anyone with a remainder interest in the property
A person w a Remainder interest in life estate has a
A future absolute right to property upon the death of the individual whom the life estate was granted.
WHERE should will be admitted into probate
Jx where decedent had place of residence… if decedent was in nursing home place of residence is where she was located prior to being in nursing home
Does a written agreement in reference to a will have any effect on the will?
No it only gives signatories a separate contract cause of action against the estate
If debt in issue exceeds the value of the estate’s assets under the personal reps control then debts are paid in following order
1) expenses of administration
2) family and homestead allowances
3) funeral expenses, debts and taxes
4) medical and hospital expenses
5) debts and taxes due in Va
6) debts and taxes to localities
To qualify as executor, person must be
Over 18 and legally competent.
Court or clerk must find that they are suitable to serve
Nonresident serving as executor must first
1) Appoint va rep or clerk of Ct to receive service of process and
2) post a surety bond
Process of admitting will to probate
Personal rep must take og will and certificate of death to clerk for probate. If will is not self proving, then must have two witnesses to verify the decedent’s signature and attest to validity of execution of the will.
What must you do to enforce agreement in reference to will
Proponent must make claim against rep of the estate
out of state person may serve as personal rep if they
post a surety bond even if that requirement were waived in the will, and designate an in-state agent for service of process or co-qualify with an in-state co-executor.
requirements for a K to devise property by will
1) certain and definite in its terms
2) in writing and signed by testor
3) consideration
4) proven by clear and convincing evidence
Which ct has jx over probating wills? CC or GDC?
Circuit Court
Order for location where will should be probated
1) Where D has last known residence
2) where they own real property
3) Where they died
What happens when will’s witnesses are unable to testify in ct
if they can show good cause for their unavailability, witnesses may be able to substitute sworn depo testimony
To qualify as an out of state executor, person must
post surety bond and have in state registered agent for service
Virginia court will enter a copy of a will into probate when
estate’s executor successfully rebutts the presumption that the missing original “was revoked by clear and convincing evidence.”
Grounds for annulment of marriage
1) One spouse had been convicted of a felony w/o other’s knowlegde
2) Spouse was w/ child by a person other than the other spouse or had conceived a child born to a person other than the other spouse within 10 months after the date of the solemnization of the marriage
3)one spouse was under 18 and no parental consent
4)Prositution
5) incest
6) One spouse was legally married to someone else at the time of marriage, resulting in bigamy
7) One spouse wasnt able to mentally understand marriage
