Wills Flashcards
A decedent has no will and a surviving spouse, with no descendants. Who receives estate?
Intestate - surviving spouse receives entire estate
A decedent has no will and a surviving spouse, with descendants who are of the surviving spouse. Who receives estate?
Under intestate, surviving spouse receives entire estate.
A decedent has no will and a surviving spouse, with descendants who are not of the surviving spouse. Who receives estate?
Intestate applies. Surviving spouse receives a 1/3 interest in estate and surviving descendants who are not of surviving spouse receive a 2/3 interest.
Intestate decedent is survived by _____.
Spouse, even if the intestate person has children who all of the surviving spouse
Order of succession if no surviving spouse or children for VA intestate
1) parents
2) brothers and sisters
3) grandparents
4) laughing heirs (no limit on degree of kinship)
5) escheat to Virginia
If a spouse deserts the other spouse, how much can that spouse receive under intestate succession?
Nothing, a spouse who willfully deserts or abandons (unless for cause) is entitled to nothing.
What is probate?
Court proceeding in which a judicially determination that decedent left a valid executed will
- or if will is invalid, that decedent died without and a will and how heirs are then determined
Under intestate succession, if decedent is survived by parents and collateral relatives and a spouse, how much do the parents and collateral relatives receive?
Nothing - surviving spouse receives everything
If D is survived by W and children A and B, who are their children. C is D’s child from a previous marriage. Under intestate succession, how to the children share?
share 2/3 equally.
What are the statutory rights of the surviving spouse?
Statutory right take precedent over any creditor claims
1) resident - only if their is an election or children who are not children from surviving spouse
2) exempt personal property up to $15k
3) family allowance for support for one year (cannot exceed $18k)
4) homestead allowance of $15k
I, widow, dies intestate. I’s parent’s died, and has siblings A, B, C, and D. C and D predecease I. C is survived by C1 and C2. D is survived by D1, D2, and D3. How the intestate succession determined?
A - 1/4
B - 1/4
C1 & C2 - 1/8 each
D1, D2, & D3 - 1/12 each
I, widow, dies intestate. I’s parent’s died, and has siblings A, B, C, and D. A, B, C and D predecease I. C is survived by C1 and C2. D is survived by D1, D2, and D3. How the intestate succession determined?
C1, C2, D1, D2, D3 - 1/5 each
per capita with representation
How much do half bloods take under intestate succession?
half as much as whole bloods
When parents adopt a child with no relationship to either of them, how is the child treated for intestate succession?
stranger adoption
- full inheritance from adopted parents
- no inheritance from biological parents
How long must a survivor outlive the decedent?
120 hours or 5 days - only applies to intestate succession or if the will is silent
- judge to predeceased
Advancements are _____ gifts to ___ from parents of significant value, when viewed from the ____ estate.
lifetime; children; parents
advancement is to intestate, and is ____ to wills
ademption by satisfaction
To disclaim any interest from a will or an intestate estate, what is required?
1) writing and signed
2) delivered to personal representative of estate
3) time limit of 9 months
disclaimer is treated as predeceasing decedent
What are wills made in absent of witnesses?
holographic wills
no requirement that holographic will be dated
What is the harmless error statute for VA wills?
proponent of will needs to establish by clear and convincing evidence:
1) testator’s will; 2) revocation of any will; 3) codicil or modification of will; 4) revival of revoked will
Can clear and convincing evidence be used to excuse the compliance with the will if not signed?
No - harmless error rule does not apply
harmless error applies to wills after July 1, 2007
What is the statute of limitation for applying the harmless error rule for wills?
1 year from decedent’s death
Must the two witnesses to the will be present when testator signs? Must they both be present when the sign?
- present together when testator signs
- need not be present when signing by witness
What is a codicil?
- addition to earlier will and used to complement and not revoke
- must comply will all the formalities
What is required for a valid will?
- 18 or older at time of execution
- signed by testator (or someone at testator’s direction)
- two witnesses who are present when testator signs.
Can an interested party be disqualified from a witness for a will?
no.
interest party is one who would take more under will than intestate succession
Requirements for holographic will?
1) own handwriting
2) signed by testator
3) wholly in handwriting and proven by two disinterested person
4) indication that instrument is intended to be a will
Who has a the burden of proof of a will in probate?
will proponents.
After will is admitted to probate, how can a party challenge the probate?
must be an interested party
- 6 months to appeal to circuit court from an order made by a clerk
- 1 year to file a bill in equity to impeach
Self-proved will requires what?
under VA statute
1) testator acknowledges the will; 2) witness acknowledge the will and 3) before notary - administer oath
Antilapse statute applies to what?
Need a valid will
- person named in will predeceases testator
- person needs to be a relative
- person needs to have a survivors (issue)
T’s will provides residual estate to friend, neighbor, and sister in equal shares. Friend predeceases T and leaves child. T, widower, is survived by neighbor and sister. Who takes?
neighbor and sister take 1/2
antilapse does not apply to friend because not a relative
T’s will provides residual estate to friend, neighbor, and sister in equal shares. Sister predeceases T and leaves child. T, widower, is survived by neighbor and friend. Who takes?
child, neighbor and friend share equally
antilapse saves child’s gift because sister is a relative.
Does the antilapse statute apply to will with a condition for survivorship to receive an interest?
No antilapse is a default when there is nothing said.
Conditions trump antilapse provisions.
What is ancillary probate?
when will is offered in probate in another state, and land in will is located in VA - need ancillary probate to pass land
What is a pretermitted spouse?
omitted spouse from a previously made will, and omitted spouse can claim intestate portion
Testator is divorced after will is executed, what the effect to the ex-spouse?
revoked to the provision to the ex-spouse, does not revoke will
- can revived if later married
Is a provision in a will revoked when spouses are separated by 14 years?
no - need file decree of divorce
If under the pretermitted (omitted) child the testator has no other living children when will is executed then ___.
pretermitted child receives what would be received under intestate succession
- no revocation of will
If under the pretermitted (omitted) child the testator has a living child and will made bequest to living child, then the pretermitted child receives ____.
lesser of:
- child would receive under intestate succession; or
- equivalent of largest bequest to living child made in will
Revocation of will occurs when?
1) physical act of destruction
2) valid subsequent will that expressly or impliedly revokes the previous will and its codicils; and
3) divorce or annulment - revokes provision in favor ex-spouse
Can revocation of will by proxy occur?
another person can revoke by physical act or sign another will
1) testator’s request and 2) in testator’s presence
How can will that is revoked be revived?
1) write a new will and have it executed properly.
2) revoke any subsequent will that revoked a previous one by subsequent instrument (very strict in VA)
3) republished the will by separate codicil
4) dependent relative revocation
dependent relative revocation
equity type doctrine under which a court may disregard the revocation of a will if the court determines that the act of revocation was premised on a mistake of law or fact as to the validity of another disposition and would not have occurred but for the mistaken belief
How are debts of the decedent paid?
Expenses must be paid from person who receive an interest:
1) intestate succession
2) from valid will (4 classes: residual, general, demonstrative, specific)
3) will substitute (life insurance)
personal property first - then real property
How are estate taxes apportioned?
equitably apportioned among all estate beneficiaries
- exception: gifts that qualify for the marital deduction or charitable deduction
Ademption by extinction involves ____.
specific property (unique items or real property)
- this property is given away, sold, transferred or sold.
- ademption only applies to valid will
In 1999, T executes valid will to transfer land to B and residuary estate to W. Three years later land is sold for $200,000. When T dies, what does B take?
nothing
ademption by extinction
In cases involving ademption by extinction, under VA law the doctrine of equitable conversion is ____.
abolished
- change from common law
What are statutory exception to doctrine of ademption by extinction?
1) insurance proceeds made payable after testator’s death
2) specific item is sold by guardian or conservator after disability - right of general legacy equal to the net sale price
3) stock that is taken over or split
Does exoneration of lien apply in VA?
No - cannot use residual estate to pay mortgage or lien from land
- VA is different than common law
When may a document be incorporated by reference into a will?
1) extrinsic writing in existence when will is executed
2) will must show intent to incorporate writing; and
3) will must describe the writing with reasonable certainty
What is a legal list for wills?
- separate list of personal property (tangible/not money)
- list must describe items with reasonable certainty
- named recipients if will refers to list and list is valid
- list may be made before or after execution of will
- list must be signed by testator
If there is a mistake or typo as to number of shares in will, what is the effect?
plain meaning - language of the will cannot be changed or altered through extrinsic evidence
If there is a latent ambiguity in will, what can be used to cure uncertainity?
can used extrinsic evidence, facts and circumstances, and intent
- if nothing cures, then it fails for plain meaning
What does a bequest of “all my personal property” include?
intangible property (stocks, bonds, bank accounts) tangible property
If an attorney makes a mistake on will, what cause of action due intended beneficiaries have against the attorney in VA?
no cause of action - no privity of contract
can bring a disciplinary code violation (no money)
To have a valid power of appointment, what is needed to be mentioned in the will?
power of appointment needs to be referred to in the will.
- life estate, need to exercise at time of death
- no opened ended power of appointments
What are will substitutes?
non-probate assets that not subject to will and do not generate inheritance taxes
1) survivorship accounts; 2) payable on death transfers - life insurance, retirement benefits; 3) inter vivos trust; 4) power of appointment
If T has an insurance policy of $100k naming B as beneficiary. T executes valid will that proceeds of policy to sister. Who takes?
B - if he survives by 120 hours.
Will substitutes trump will
What does elective share allow?
allows surviving spouse to reach outside normal probate process into will substitutes (joint accounts, life insurance, retirement clauses)
augment the estate with nonprobate transfers
What is the amount of the elective share if survived by children (descendant)?
1/3 of augmented estate, plus 6% interest of estate at time of death
What is the amount of the elective share if not survived by children (descendant)?
1/2 of augmented estate, plus 6% interest of entire estate
How long does a surviving spouse have to make a notice of election?
six months after will is probate or if not will when administrator of intestate estate is appointed
How is augmented estate calculated?
probate estate + transfers to spouses + transfers to third party (includes non-probate assets)
- then use 1/3 if issue or 1/2 if no issue
Who can bring a will contest?
only an interest party with economic interest adversely affect by will’s probate
- can challenge formalities or intentions
To challenge a lack of testamentary capacity what is needed?
burden of proof on the proponents of wills: preponderance of evidence, to show at the time of the execution of will:
1) understand nature of act; 2) know the extent of wealth; 3) natural objects of bounty (family members); 4) able to interrelate
To challenge a will for undue influence what is needed?
burden on contestant who has standing to prove suspicious circumstances
What is not enough alone: 1) mere opportunity to exert influence; 2) mere susceptibility to influence; 3) mere fact of unnatural disposition
When challenging a will for undue influence, what is the burden?
initial on contestant, but it can shift to beneficiary if there is a confidential relationship (rebut presumption by preponderance of the evidence)
What is the effect of no contest clauses?
legatee under the will contests the will forfeits whatever they would take under the will if they lose the contest - predecease the testator
What is the jurisdiction for probate?
where the process begins for probating the will or distributing the assets of the estate
If M lives in Smith county, but suffered medical problem and daughter moves M to Arlington county. M dies leaving a previously made valid will. What is the probate administrated?
smith county - domicile of estate, daughter transfer to Arlington is not effective
Does the testator have to see the witness sign the will to be a valid will?
No, witness must sign in the testator’s conscious presence
If a will makes a device of $10,000 to a friend and the fried predeceases the testator, who has the interest to the $10,000 between the intestate heirs and named residual beneficiary?
named residual beneficiary
Is the exact order of signing a will material?
No, order does not matter as long as signatures are part of a continuous and single transaction.
What are two requirements for person who is not the testator to revoke a will by a physical act?
1) at testator’s direction; and
2) in testator’s presence
Testator executes a will, followed by three separate codicils. Before death, the testator revokes the third, then the second codicil. What result?
Read will and first codicil together
revocation of codicil does not revoke a will
If a will was last in testator’s possession or control and cannot be found after death raises a presumption that the will was revoked. The rebut this presumption, there must be ____.
Clear and convincing evidence
What is dependent relative revocation?
Equity-type doctrine under which a court may disregard revocation of will if the revocation was premised on a mistake of law or fact as to the validity of another disposition, and would not have occurred but for the mistaken belief that the other disposition was valid
Is it effective to revoke a second will by physical act with the intent to revive a first will? The second will expressly revoked the first will.
No. First will is not revived by physical act destruction of second will.
If a fire destroys a house and the will was also destroyed. Later the testator says “That’s okay. I wanted to revoke it anyway.” Valid revocation?
No, because intent did not accompany the physical act to destroy.
A person who is appointed by a court to manage the estate of a will is called?
administrator
- executor is a person who is appointed by the will
What is the order of priority for determining the priority for appointing an administrator of a will?
VA statute has the following appointment during first 30 days after death:
1) surviving spouse who is also sole distributee; 2) any distributee who is the sole heir; 3) any distributee who receives consent from the other competent distributees
After 30 days then any person who is distributee as the clerk sees fit
Can minors be appointed as administrators of to manage an estate?
No - infancy is a disability that precludes appointment.
Are the assets of joint bank account owned with a surviving spouse included in an estate upon deciding what is included in estate for distribution of will?
No - passes outside of probate.
No court action is required.
Is the value of a home with a surviving spouse as tenancy by entirety included in an estate upon deciding what is included in estate for distribution of will?
No - passes outside of probate.
Is not listed in inventory of estate.
If a trust names a decedent a beneficiary and has undistributed income, what is included in the inventory for determining the estate?
Only the undistributed income, not the corpus of the trust.
In VA legal title remains in trustee.
Are the assets of joint bank account owned with by a widowed spouse included in an estate upon deciding what is included in estate for distribution of will?
Yes - part of widowed spouse’s estate.
A will may be self-proved by use of ____.
Self-proving affidavit. This is made with the will and is notarized testifying that testator was 18 or older, of sound mind, and testator declared it to be the last will and testament.
If there is no self-proving affidavit, how must a will be entered into probate?
Two attesting witnesses must be deposed and testify that will was properly executed to be entitled to produce.
What must an nonresident personal representative do before serving as executor of a will?
Post a surety bond or appoint a resident agent for service of process.
VA code provides that a specific devisee of stock is entitled to securities of another corporation owned by testator when?
the securities of the other corporate were a result of merger, consolidation, or similar action.
- merely a change in form
VA anti-lapse operates to?
Save a lapse gift in a will if the predeceasing beneficiary was a grandparent or a lineal descendant of a grandparent of the testator; and predeceasing beneficiary left descendants
Who can be saved from an anti-lapse statute in VA?
a predeceasing beneficiary who is a grandparent or a lineal descendant of a grandparent of the testator
The pretermitted heir statute applies when?
testator had no children when will was made and later had children.
Those later children (pretermitted children) entitled to testator’s estate is passed under intestacy.
If there are children in existence and later children, then later children take lesser of largest under the will or intestate
Who has the burden to show that will is not validity executed?
will proponent to show by a preponderance of evidence
Valid will requires what?
1) will signed by testator
2) testator signs in presence of witnesses (present at same time)
3) will must be witnessed by two attesting witnesses
4) each witness must sign in the testator’s presence
What is an attestation clause in a will?
Raises a presumption of a due execution of a will.
Relieves the requirement to have witnesses testify as to validity of will.
Does VA have a rule to disqualify a witness who receives an interest or gift under the will?
No.
Grounds to challenge will include?
1) lack of testamentary capacity
2) undue influence
3) fraud
What must be established to show a lack of testamentary capacity to challenge a will?
will proponent (by preponderance of evidence) must establish:
testator did not have sufficient capacity to
i) understand the nature of the act
ii) know the nature, conditions, and extent of her property; and
iii) know the names of relations
iv) understand the scope and meaning of will provisions
When does a presumption of testamentary capacity arise?
When will is validity executed
Burden to challenge will is shifted to will contestant
To set aside a will for being the product of undue influence, what is the will contestant required to show?
i) influence was exerted
ii) effect of influence was to overpower
iii) influence resulted in will that would have not been made otherwise
A presumption of undue influence to challenge a will may arise when?
Contestant shows by clear and convincing evidence that:
i) testator suffered from weakness of mind
ii) testator named a beneficiary who stood to benefit due to influence
iii) testator previously expressed a contrary intention
To challenge a will based on fraud, what does the will contestant need to show?
person who committed fraud
i) made knowingly false statements;
ii) with intent to deceive testator; and
iii) testator ignorant of the falsity.
Two ways to challenge a will?
Testator capacity (preponderance of the evidence) Undue influence (clear and convincing evidence)
If a person is survived by grandfather, niece, and two aunts. Who takes under intestacy succession?
Niece.
No spouse, children, parents, then to brothers and sisters and their descendants.
Grounds for removing an administrator when the administrator drafted the will and left a benefit to a person related to administrator?
None.
Need fraud, gross negligence, or some breach of duty.
Is a joint bank account admitted to probate?
No. Joint account passes to the surviving owner, no probate is needed.
Does VA require signing name at the end of the will?
No - different from other states.
Can a holographic document revoke a previously made will?
Yes, if the holographic document shows a testamentary intent.
If a testator does not sign in the presence of two witnesses, what can the testator do to make the will valid?
acknowledge her signature in their presence.
If a testator dictated a will to person who is a named beneficiary, can that person qualify as a witness by merely writing their name as a beneficiary?
Yes. Does not matter if the person did not intend to act as a witness
Argue opposing view that person lacked intent to sign as a witness.
If there is a specific bequest of specific property and it is not in the estate upon the testator’s death, does the beneficiary receive anything?
Generally no - Ademption applies.
Exception if sold by guardian when testator is incapacitated, then beneficiary entitled to general legacy. (subject to a 1 year rule)
Does divorce have any impact on specific bequest to children of the former spouse who are not children of the testator?
No. Specific bequest remains.
