Wills Flashcards
Liens on specifically bequeathed property are not exonerated UNLESS
the will specifically directs exoneration
In a probate matter, venue lies
FIRST in the county or city in which the decedent resided,
or (if none) the county or city in which the decedent owned real property
***If the decedent became a patient in a nursing home or similar institution, the place of legal residence is presumptively the same as it was before moving into the home.***
Family Allowance Statute
- Authorizes payment to the surviving spouse or children whom the decedent was legally obligated to support, during the period the estate is in probate administration
- Has priority over all creditors’ claims.
- allowance is not to exceed one year, but a court may extend the period of payment if the estate is still in administration.
- The allowance is over and above amounts passing to the spouse by will, intestate succession, or elective share.
- If any of the children do not live with the spouse, the allowance is apportioned among the parties “as their needs may appear.”
To establish undue influence, there are three requirements:
(i) the existence and exertion of influence,
(ii) the effect of the influence was to subvert and overpower the mind and will of the testator, AND
(iii) the product of the influence was to produce a will (or a gift in a will) that would not have been made but for such influence
**Although it is helpful to prove that the testator suffers from weakness of mind, this only creates a presumtion of undue influence and is not necessary to the determination.**
How is a surviving spouse’s elective share calculated?
The amount of the elective share is 50% of the value of the marital property portion of the augmented estate.
**A surviving spouse may claim a statutory share of the decedent’s estate to protect himself from disinheritance, and may do so whether the decedent left a will or died intestate.**
Statutory Exceptions to Doctrine of Ademption
- in cases not involving a guardian or conservator, a specific beneficiary has a right to any amount of a condemnation award for the taking of property by eminent domain, or any proceeds from fire or casualty insurance on the property, but only to the extent that the award or proceeds are paid after the testator’s death
- A specific beneficiary of stock is entitled to securities owned by the testator in another corporation as a result of a merger or similar action taken by the entity
- if specifically devised property is sold by a guardian or conservator of an incapacitated person, or if fire or casualty insurance proceeds are paid to the guardian or conservator as a result of loss or damage to the property, the specific beneficiary is entitled to a general legacy equal to the net sale price or insurance proceeds.
Doctrine of Ademption
What is a Specific Bequest?
When specifically bequeathed property is not in the testator’s estate at death (e.g., it was destroyed, sold, given away, or lost), the bequest is adeemed; i.e., it fails.
A specific bequest is a gift of property that is particularly designated and is to be satisfied only by the receipt of the particular property described
Anti-Lapse Statute
A gift to a beneficiary who predeceases the testator will lapse (i.e., fail), because it is not possible to transfer title to a dead person.
The property becomes part of the residuary estate, unless the anti-lapse statute applies. Under the statute, a gift will be saved if the predeceasing beneficiary was a grandparent or a lineal descendant of a grandparent to the testator and left descendants who survived the testator.
Joint Will Defined
Are Joint Wills revocable
- will of two or more persons executed on the same piece of paper
- Joint wills are revocable by a testator in the same manner as any other will, even if the wills are executed pursuant to a contract under which the parties agree that neither party will revoke the will and make a new will without notice to the other party. If one of the joint testators revokes her joint will, the instrument would still serve and be admissible to probate as the will of the other
Non-Probate Assets
- A will cannot make a gift of nonprobate assets, i.e., interests that pass at death other than by will or intestacy
- There are three principal categories of nonprobate assets: (i) property passing by contract, (ii) property passing by right of survivorship, and (iii) property held in trust
Doctrine of Incorporation by Reference
(i) the document must have been in existence at the time the will was executed, (ii) the will must refer to the document as being in existence, and (iii) the will must identify and describe the document with reasonable certainty
If the subsequent instrument does not fully comply with the will execution statute
the court may honor the revocation if the decedent’s intent to revoke is shown by clear and convincing evidence
A will may be revoked in whole or in part
by a subsequently written will, codicil, or other writing declaring such revocation, as long as the instrument is executed with the same formalities as are required for the execution of a will
If a subsequent instrument does not expressly revoke an earlier will
the court will read both instruments together to the extent possible, (i.e., by treating the second instrument as a codicil) and revoke the prior will only to the extent of any inconsistencies.
Revocation by Physical Act
- A will or codicil can be revoked by cutting, burning, tearing, canceling, obliterating, or destroying the will (or the testator’s signature) with the intent, and for the purpose, of revocation
- Partial revocation by physical act (e.g., by crossing out one clause in the will) is permitted
- The intent to revoke must be present at the time of the physical act.
- A will may be revoked by physical act of another person, so long as the revocation is at the testator’s direction and in the testator’s presence.
Virginia’s Pretermitted Child Statute
If the testator had no other children at the time the will was executed, the pretermitted child (if not provided for or mentioned in the will) takes such portion of the testator’s estate as he would have been entitled to if the testator had died intestate
The pretermitted child statute states that if the testator had other children at the time the will was executed
The pretermitted child takes the lesser of (i) an amount equal to the largest bequest made to any of the testator’s other children, or (ii) an intestate share
What effect does divorce or annulment have on gifts made to a former spouse in a will?
Divorce or annulment revokes all will bequests, revocable trusts, and fiduciary appointments in favor of the former spouse.
The remainder of the will or revocable trust is valid and read as if the former spouse predeceased the testator. Also, absent a contrary provision in the decree of divorce or annulment, death benefits under a life insurance policy are revoked, and the death benefit is distributed as though the former spouse predeceased the decedent.
