Wills

Question 1

If a decedent dies intestate, then Virginia law directs the distribution of property to

Answer 1

Descendants per capita w representation

Question 2

What is spouse’s share of intestate’s estate when the decedent is survived by a child who is not child of survived spouse?

Answer 2

1/3rd… 100% if not survived by a child not of the surviving spouse

Question 3

Who bears the burden of proving testamentary capacity

Answer 3

Proponent

Question 4

Who bears the burden of proving testamentary capacity

Answer 4

Proponent

Question 5

can create a presumption of capacity by showing

Answer 5

testator complied with the formal requirements of execution.

Question 6

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

Answer 6

The payment or transfer is Void

Question 7

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

Answer 7

Void

Question 8

The decedent’s interest in the asset then passes as if the decedent’s former spouse

Answer 8

Predeceased him

Question 9

Among the requirements for an attested will is that the testator must either

Answer 9

Sign the will or ackowledge it in front of two competent witnesses who are present at the same time

Question 10

A person who is convicted of murder or manslaughter of the decedent is

Answer 10

Barred from taking property because of the decedent’s death

Question 11

If the slayer held joint property with rights of survivorship with the decedent, then the property vests

Answer 11

100% in estate of decedent

Question 12

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

Answer 12

120

Question 13

If a decedent dies intestate, then Virginia law directs the distribution of property among descendants as per

Answer 13

Capita w representation

Question 14

Under VA’s per capita w representation rule, the division of the decedent’s estate is made at

Answer 14

the first generational level for which there are living takers.

Question 15

Pour over devise

Answer 15

distribution of a decedent’s assets upon her death are effectively determined by the terms of a trust rather than a will

Question 16

A pour over devise is permissible if

Answer 16

trust is sufficiently identified in the will, and its terms are set forth in a written instrument other than the will.

Question 17

A third party can revoke a will on behalf of the testator as long as

Answer 17

the revocation is at the testator’s direction and in the presence of the testator.

Question 18

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

Answer 18

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.

Question 19

For decedents dying on or after January 1, 2017, the amount of the elective share is

Answer 19

one-half of the value of the marital-property portion of the augmented estate

Question 20

Va anti lapse statute

Answer 20

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.

Question 21

What happens when omitted child is not accounted for in will?

Answer 21

Will is revoked by operation of law. intestate succession will take place and the will is ignored.

Question 22

Life estate

Answer 22

present possessory interest in certain property for the lifetime of another person

Question 23

Duty of Person who holds life estate in property

Answer 23

duty to maintain the premises and not interfere with the interests of anyone with a remainder interest in the property

Question 24

A person w a Remainder interest in life estate has a

Answer 24

A future absolute right to property upon the death of the individual whom the life estate was granted.

Question 25

WHERE should will be admitted into probate

Answer 25

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

Question 26

Does a written agreement in reference to a will have any effect on the will?

Answer 26

No it only gives signatories a separate contract cause of action against the estate

Question 27

If debt in issue exceeds the value of the estate’s assets under the personal reps control then debts are paid in following order

Answer 27

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

Question 28

To qualify as executor, person must be

Answer 28

Over 18 and legally competent.

Court or clerk must find that they are suitable to serve

Question 29

Nonresident serving as executor must first

Answer 29

1) Appoint va rep or clerk of Ct to receive service of process and

2) post a surety bond

Question 30

Process of admitting will to probate

Answer 30

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.

Question 31

What must you do to enforce agreement in reference to will

Answer 31

Proponent must make claim against rep of the estate

Question 32

out of state person may serve as personal rep if they

Answer 32

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.

Question 33

requirements for a K to devise property by will

Answer 33

1) certain and definite in its terms

2) in writing and signed by testor

3) consideration

4) proven by clear and convincing evidence

Question 34

Which ct has jx over probating wills?

Answer 34

Circuit Court

Question 35

Order for location where will should be probated

Answer 35

1) Where D has last known residence
2) where they own real property
3) Where they died

Question 36

What happens when will’s witnesses are unable to testify in ct

Answer 36

if they can show good cause for their unavailability, witnesses may be able to substitute sworn depo testimony

Question 37

To qualify as an out of state executor, person must

Answer 37

post surety bond and have in state registered agent for service