Wills Flashcards
What is probate?
Court proceeding in which it is judicially determined that decedent left a validly executed will or if the will is invalid that decedent died w/o a will and his intestate heirs are then determined.
What are the two kinds of personal representative?
Executor: valid will names a person to administer the estate.
Administrator: no one is named or decedent died w/o a valid will.
Testate v. intestate succession?
Testate: property passes under a valid will
Intestate: property passes outside any valid will and thus according to state statute
Heirs v. descendants v. devisees, legatees, and beneficiaries?
Heirs: persons who take under intestate succession.
Descendants: persons who take from decedent in descending fashion.
Devisees, legatees, beneficiaries: persons who take under a valid will.
When a decedent passes intestate w/ a surviving spouse, what result?
If survived by spouse and descendants all of who are descendants of the surviving spouse, surviving spouse takes the entire estate.
If survived by spouse and children who are not all descendants of the surviving spouse, surviving spouse takes 1/3 of the estate and the decedent’s children split the 2/3 remainder in equal shares.
When may a spouse not take when decedent dies intestate?
When the surviving spouse had willfully deserted or abandoned the decedent spouse.
What are the surviving spouse’s statutory rights (which take precedence over any creditors’ claims)?
REFH.
1) Residence: if surviving spouse claims an elective share or decedent died intestate survived by descendants by a former marriage, spouse can live in principal family residence w/o charge until spouse’s rights are determined and satisfied.
2) Exempt personal property up to $15K.
3) Family allowance: amount needed for maintenance and support for 1 year, cannot exceed $18K unless petition is made for a higher allowance.
4) Homestead allowance of 15K unless spouse claims under an elective share.
How do we determine inheritance by descendants?
Per capita w/ representation. Distribution to survivor in the same generation of descendants pro rata to every surviving descendant and every dead descendant who died leaving descendants.
If a person dies intestate w/o spouse or descendant, who takes and in what order?
1) Parents or surviving parent as long as there has not been desertion.
2) Brothers and sisters and descendants of deceased brothers and sisters who take per capita w/ representation.
3) Grandparents: half to maternal side and half to paternal side and their descendants.
What is a laughing heirs statute?
VA does not have this so there is no limit on the degree of kinship that qualifies one to be an heir. A laughing heir statute would put some limit on this.
What does it mean to escheat?
If decedent leaves no living relations, the estate passes to the kin of decedent’s last deceased spouse under the intestate takers rules, or if no spouse, the property of decedent will escheat to VA.
What is the half bloods doctrine?
When decedent has a number of siblings, some of which have only one common parent w/ decedent i.e. is a half blood sibling, the half-blood siblings inherit half as much as the whole blood siblings.
What are the adoption rules for how adopted children take?
1) Parents adopt a child who is of no relation to either = child and child’s descendants have full inheritance rights from adoptive family and no rights from bio parents or kids.
2) When child is adopted by spouse of bio parent, child retains inheritance from both bio parents and gains rights from new adopting stepparent.
What rights do non-marital children have?
1) Full inheritance rights from bio mother.
2) Child can inherit from bio father only if paternity is proven satisfying only of MAC tests: Marriage of parents before or after the birth, Adjudicated to be the father, Clear and convincing evidence of paternity.
What constitutes clear and convincing evidence of paternity?
BADCAT.
1) Birth certificate: father gave consent to be named as the father.
2) Admission of paternity under oath either before a court or in writing under oath.
3) DNA tests or other medical evidence.
4) Cohabitation w/ mother during 10 mos. before child’s birth
5) Allowed child to use surname
6) Tax return of other govt doc claiming child as his.
What happens when there are simultaneous deaths in quick succession?
Beneficiary must survive decedent by at least 120 hours (5 days) to take under a will (unless it states otherwise), succession, or non-probate transfer.
What is an advancement?
In intestate succession, any child taking an intestate portion would have to take this lifetime gift into consideration if the gift was meant by the parent to be an advancement of what the child would take at the parent’s death. Applies to any descendants of decedent.
What are the presumptions in the advancement doctrine?
If a lifetime gift of significant value, presume advancement of child’s intestate share to be taken into account in distribution of the intestate estate of the decedent parent at death. RESULT: hotchpot allows for consideration of value of the intervivos gift in distributing the remainder of the estate. EXCEPTION: child can rebut presumption of gift.
What is ademption by satisfaction at CL?
Whenever a testator provides a bequest in a will and then makes an intervivos gift to the same person, it is presumed the intervivos gift was in satisfaction of what was to be given in the will, and hence the gift in the will shouldn’t go to that person who has already received it.
What is ademption by satisfaction under VA statute?
No satisfaction of legacies unless the gift made during the lifetime was:
1) Declared by donor in writing at the time of the bequest to be in satisfaction of the bequest
2) Acknowledged by donee in writing at time of the bequest as in satisfaction of bequest,
3) Will acknowledges that any lifetime gifts are in satisfaction of the bequest.
What is the effect of a disclaimer of the gift?
Disclaimed interest passes as though disclaimant predeceased the decedent.
What steps must be taken to make a disclaimer valid?
1) Must be in writing and signed.
2) Must be delivered to personal rep of estate or trustee or payor.
3) Disclaimer must be made w/in 9 mos. to escape federal gift tax consequences.
What is the slayer statute?
One who is convicted of the murder of another may not take any economic benefit from that person by deed, will or intestacy. Applies where:
1) D convicted in criminal court of murder or voluntary manslaughter of decedent;
2) Person found to be a murderer by preponderance of evidence in civil proceeding.
3) BUT murderer’s descendants can still take unaffected by the slayer’s conduct.
What are the three kinds of wills in VA?
Witnessed wills, holographic wills, and nuncupative wills.
What is VA’s harmless error statute?
As of July 1, 2007, document will be an effective will if proponent w/in 1 year of decedent’s death can establish by clear and convincing evidence that decedent intended that the document constituted:
1) testator’s will
2) a partial or complete revocation of any will
3) a codicil or modification of a will
4) a partial or complete revival of decedent’s formerly revoked will or of a portion of the revoked will.
What does the harmless error statute not excuse?
Does not excuse failure to comply w/ requirements associated w/ testator’s signature UNLESS 1) two people mistakenly sign each other’s wills OR 2) person signs a self-proving affidavit and not the will itself.
What are the testator requirements in a witnessed will case? (age, signature)
Must be 18 years old unless emancipated. Must sign or get a proxy signature in T’s presence if T is unable to sign himself.
Who must be present for a witnessed will?
Testator must sign in presence of 2 Ws who are present together when T signs. (Under harmless error, proponent could provide clear and convincing evidence of testator’s intent that doc be his will, despite lack of presence.) BUT Ws do not have to be in presence of each other when they sign their names to the will as Ws.
Can interested Ws sign/be present for the signing of the will?
VA doesn’t disqualify W because that witness receives more under the will than W would receive under intestate succession.
What is a codicil?
Additions to an earlier will and used to complement them, not revoke them in whole. Codicils must be executed w/ same formalities as a witnessed will or holographic will.
What are the requirements for a holographic will?
Must be
1) Handwritten
2) Signed by testator–if no signature, must have language indicating the finality of the instrument on its face
3) Wholly in T’s handwriting and handwriting must be proven by 2 disinterested persons
4) Must contain an indication (death talk) that instrument is intended to be a will.
When the issue at probate is whether or not there is a will, what happens?
Usually proceed ex parte, but interpartes probate is a full judicial proceeding w/ notice to interested parties if there’s a tough case. If the will is self-proved, no need to call attesting Ws.
What is the SOL for probate?
Interested parties can challenge a will and get trial de novo after it’s admitted to probate:
1) W/in 6 mos. to appeal to CC from an order made by clerk or court deputy.
2) w/in 1 year to file bill in equity to impeach or establish the will.
LIMIT: BFP of real property from heir is protected unless will is probated w/in 1 year of decedent’s death.
What is ancillary probate?
Real property passes according to law of where it is located, but probate is proper where a person dies domiciled. Thus, probate must start in location of domicile and file ancillary probate in order to pass real property located in another state.
What is a will self-proved?
If at time of execution or any time thereafter:
1) Testator acknowledges will
2) Ws acknowledge will
3) Before an officer authorized to administer oaths
EFFECT: deem properly executed despite any formalities.
What is the CL doctrine of lapse?
If a will left property to anyone who predeceased testator, bequest lapsed and went to an alternate taker if named or if not to the residuary estate of the testator.
What is VA’s anti-lapse statute?
If a devisee or legatee is 1) a relative of testator and 2) devisee or legatee is dead at the time of the execution of the will or is dead at the time of the death of the testator, the descendants of deceased devisee or legatee who survive the testator take in place of the deceased devisee or legatee. APPLIES ONLY TO WILLS.
Does the anti-lapse statute apply to residuary gifts as well?
Yes. All surviving residuary class members and if the deceased residuary class members are family w/ descendants the descendants may take.
What is the class gift doctrine?
A class gift exists when testator intends to make a gift to a group of persons that is capable of increasing or decreasing on its own. If a member of the class predeceases the testator, the class members who survive the testator take. BUT, if conveyed to individuals, the deceased named person’s share lapses and the share goes to the residuary estate.
What is the rule of administrative convenience?
The class closes whenever some class member is entitled to a distribution.
Who is an omitted spouse?
Spouse that testator marries after executing a will.
What is VA’s omitted spouse rule?
New spouse receives what would be computed to be the spouse’s intestate portion at the time of the testator’s death.
What are the exceptions to VA’s omitted spouse rule?
1) Testator stipulates otherwise for surviving spouse in the will;
2) Testator executes another will after the marriage and this will is the operative one;
3) New spouse disclaims interest in estate through a valid prenup;
4) New spouse doesn’t survive by 5 days;
5) Spouse deserts or kills decedent.
What if the testator is divorced after the will is executed?
A FINAL DECREE OF DIVORCE or annulment after the execution of the will has the effect of revoking any disposition or appointment of property made by the will to the former spouse. Treat spouse as having predeceased the testator. Divorce rule does not revoke the bequest to a relative of the former spouse.
Does the revocation by divorce rule apply to life insurance policies, individual retirement accounts, joint accounts, and joint tenancies?
Yes. All death benefits in favor of a former spouse are revoked upon divorce or annulment. Any federally protected pension plan is preempted by ERISA. Divorce revokes the right of survivorship, so spouses become tenants in common.
What is a pretermitted child?
An omitted child born or adopted after the execution of the will w/o provision made for them in the will.
What is VA’s pretermitted child rule if testator had no children when will was made?
Pretermitted child receives what the child would have received under intestate succession. But if child dies before age 18, unmarried w/o issue, portion obtained reverts back to those who provided the intestate portion.
