Wills Flashcards

Question

What are the requirements for a holographic will?

Answer 1

1. Handwritten 2. Wholly in testator's handwriting * As proven by at least 2 disinterested persons 3. Signed by testator 4. Including death talk - i.e., indication that it is intended to be a will

Answer 2

Must demonstrate the finality of the instrument, so probably needs to either: * Have name _at the end_ of the will * Have a _statement of finality_, such as: * "This is my last will and testament." If not, maybe a chance that the harmless error statute could apply if clear and convincing evidence of intent, because there is at least some sort of a signature here - but unlikely

Answer 3

Not a valid codicil because not a final act - attorney must actually make changes and have the testator execute

Answer 4

Rare situation in which there is a full judicial proceeding with notice to all interested parties to decide whether there is a valid will

Answer 5

In order for a will to be self-proved, it must contain the following in addition to other formalities: * Notary states that: * T declared the will as hers * Notary & witnesses were present when this happened, * and T executed in presence of the witnesses * Notary states that: * Witnesses declared in the presence of the notary and T that the document is T's will and formalities were followed * Signatures of notary, T, and the two witnesses Result: * If the will is self-proved, there is no need for court testimony by subscribing witnesses. * If the will is not self-proved and someone challenges the will, at least one of the subscribing witnesses will need to testify in court. Don't have to remember attesting to the instrument, just need to verify that signature is theirs.

Answer 6

6 months after will admitted to (or denied from) probate * If order from a clerk or court deputy 1 year after will admitted to (or denied from) probate * To file bill in equity

Answer 7

No time limit

Answer 8

If the property is _real property_, the bona fide purchaser is protected unless the property is probated _within one year_ of the decedent's death

Answer 9

Holographic will * 2 disinterested witnesses to testify about handwriting Witnessed will * 1 witness, whether interested or disinterested, to testify about presence during signature * Doesn't matter if the other witness denies

Answer 10

Probate takes place wherever the decedent was domiciled If real property is located out of that state, the personal representative must file ancillary probate where the real property was located (i.e., the situs) in order to pass title

Answer 11

Virginia Rule * Unless a will includes a contrary intention * If a beneficiary, including one under a class gift, is both: * A relative of the testator (blood) * Dead at the time of either: * Execution of the will * Death of the testator * The beneficiary's descendants who survive the testator take the bequest in place of the beneficiary (per stirpes) Application * Only wills * Not: * Intestate succession * Non-probate instruments Common law * Under common law, the beneficiary's interest would lapse when he predeceased

Answer 12

Class gift * Gift to class of persons (e.g., brothers and sisters, etc.) Not class gift * Gift to group of individuals (e.g., Al, Bill, and Carl) Rules 1. Predecease * When one class member predeceases (and the anti-lapse statute doesn't apply), surviving members of the class take on that member's interest 2. Administrative convenience * Under this rule, the class closes when some other member is entitled to a distribution (usually when testator dies)

Answer 13

With a class gift, when one member predeceases and isn't saved by the anti-lapse statute, his share goes to the other members With a gift to a group of individuals, when one individual predecases and isn't saved by the anti-lapse statute, his share goes back to the residuary estate

Answer 14

Only if both: 1. They are in gestation when the testator dies 2. They are bornw within ten months later

Answer 15

Virginia provides for an _omitted spouse_, thereby including the spouse at the time of death, unless: 1. Testator _stipulates otherwise_ in the will 2. Testator _executes new will_ after marrying omitted spouse 3. New _spouse disclaims_ interest in testator's estate 4. New spouse _does not survive_ testator 5. New _spouse deserts or kills_ decedent and is barred

Answer 16

Assuming that the divorce results from a final decree, Virginia treats the former spouse as having _predeceased_ the testator Notes * Only those portions of the will that would have gone to the former spouse are revoked * This rule also applies to _ALL DEATH BENEFITS_, including non-probate instruments * So property held in tenancy by entirety or join tenancy becomes held as joint tenants (half and half)

Answer 17

If testator had _no other living children_ when will was executed * Child receives what he would have gotten under intestate succession * _Unless_ the will provides otherwise If testator had _other living children_ when will was executed * Child receives lesser of: * What he would have gotten under intestate succession * The largest bequest to any child * _Unless_ the will provides otherwise

Answer 18

1. _Physical destruction_ 2. Valid _subsequent will_ that revoked the previous will and its codicils either: * Expressly * Impliedly 3. _Divorce or annulment_ revoked portions of a will in favor of the former spouse

Answer 19

Yes, but to be valid, the act by another must be both: 1. At the testator's request 2. In the testator's presence E.g., cannot call lawyer who is out of state and tell the lawyer to destroy the will - must have physical presence of testator _Note_: but Virginia's harmless error statute might apply to the physical act if there is clear and convincing evidence of the testator's intent to revoke

Answer 20

Lost will * If the will can be traced to the testator's possession or control, but cannot be found, it is presumed to have been revoked by physical act * If presumption rebutted by clear and convincing evidence, a copy of the will may be used Mutilation * If the will can be traced to the testator's possession or control, and it is found mutilated, it is presumed to have been revoked by physical act

Answer 21

Not unless either: 1. Will #1 is re-executed 2. Republication by codicil applies (i.e., testator validly executes a codicil to Will #1 and revives it)

Answer 22

If physical revocation of a will is done based on an assumption (albeit invalid) that it will be succeeded by another will, the revocation is reversed, provided that the revoked will is still consistent with the testator's intention

Answer 23

By meeting the _proof of lost wills_ test: 1. Establish due execution 2. Prove cause of non-production (i.e., DRR) 3. Prove contents of will by clear and convincing evidence

Answer 24

* Inconsistent provisions in otherwise valid wills, * Or wholly inconsistent wills that are otherwise invalid, * Result in revocation of the earlier provision or will * By the later provision or will

Answer 25

1. Pay expenses from the following sources, _first personal property, then real property_, in order: * Intestate assets * Testate assets * Residuary gifts * General legacies * Demonstrative legacies * Specific bequests 2. Distribute testate assets 3. Distribute intestate assets _NOTE_: estate taxes exception

Answer 26

1. Residuary gifts * Remainder of estate 2. General legacies * General amount of money 3. Demonstrative legacies * General amount of money from specific source 4. Specific bequests * Specific item

Answer 27

Personal property is "abated" (i.e., reduced) in order to pay creditors before real property

Answer 28

Estate taxes are _equitably apportioned_ among all estate beneficiaries (i.e., everyone's interest is reduced pro rata) Exception: * The following gifts are excluded because they do not generate tax: * Gifts under the marital deduction * Gifts under the charitable deduction

Answer 29

Ademption by extinction * If a _specific_ item of land or personal property that is devised or bequeathed in a will is not included in the decedent's estate at the time of death, the devisee or legatee _gets nothing_ Exceptions 1. Virginia has _abolished equitable conversion_ for purposes of ademption by extinction * So if the property is sold before death, but the buyer still owes money on that sale, the devisee or legatee gets to collect the unpaid balance, provided the will does not state otherwise 2. Fire or casualty _insurance proceeds paid after_ the decedent's death * So if the property is stolen before death, and the estate receives insurance proceeds after death as a result, the devisee or legatee gets those 3. _Condemnation awards paid after_ the decedent's death * So if the property is condemned before death, and the estate receives an award after death as a result, the devisee or legatee gets that 4. _Guardian or conservator sells_ property after decedent becomes disabled or incompetent * So if the guardian or conservator after the decedent becomes incompetent or disabled sells the property, the devisee or legatee gets a general legacy and can get the proceeds 5. Bequests of _securities_ * If the form of securities changes (i.e., via stock split, takeover, etc.) the legatee still gets whatever substance remains

Answer 30

In 2007, Virginia _reversed the common law rule_ that allowed for exoneration of liens * So, unless the will states otherwise, any specific devise of real or personal property passes subject to any mortgage or other security interest or lien * Exceptions: * If lien was created by either: * Agent acting under durable power of attorney * Testator's conservator, guardian or committee

Answer 31

1. Extrinsic writing must be _in existence_ when will executed 2. Will must show an _intent to incorporate_ the writing 3. Will must _describe_ the writing with _reasonably certainty_

Answer 32

A separate list of can pass items to named recipients in a will _even if created after execution_ of the will if the list: 1. Refers only to _tangible personal property_ (i.e., not money) 2. Describes the items with _reasonable certainty_ 3. Signed by _testator_ 4. Is referenced in the _will_ and the will is _valid_

Answer 33

The will can include property described in a way that allows it to _change between the time of execution and death_ E.g., my car, the paintings in my living room, etc.

Answer 34

Traditionally, Virginia strictly followed the Plain Meaning Rule: * *A court may not alter clear language in a will. If its meaning is plain and unambiguous, apply it as written; no extrinsic evidence of any type of mistake permitted.* In 2018, Virginia adopted a new statute: * *A court may reform wills where CLEAR AND CONVINCING evidence shows that “both the decedent's intent and the terms of the will were affected by a mistake of fact or law.”* * Thus, if an interested party can show by clear and convincing evidence that the testator included certain terms only because of a mistaken belief, then the court can reform the will to make it adhere to what the decedent would have wanted in the absence of the mistake. * If the extrinsic evidence does not cure the ambiguity, error cannot be corrected

Answer 35

1. Facts and circumstances 2. Testator statements of intent to third parties (e.g., lawyer)

Answer 36

* No. * Exception: * Can sue if: * Attorney includes a special provision in retention agreement that says if he screws up, one or more particular beneficiaries shall have standing to sue the lawyer for malpractice and recover from the lawyer what the testator intended them to receive under the will.

Answer 37

1. Both tangible and intangible personal property 2. Tangible personal property only * General words that follow specific items include only the types of property of the same type as the specific items

Answer 38

Definition * When a testator gives someone a life estate and then asks that person to _pick someone_ to receive the remainder at the end of the life estate Parties * Donor * Testator who gives the power of appointment * Donee * Beneficiary who takes the power of appointment * Takers in default of appointment * People who take the property if power of appointment is not exercised Types * General * Donee not limited in beneficiaries she can appoint * Special * Donee limited in beneficiaries she can appoint * Testamentary * Donee can only exercise power upon death by will * Power presently exercisable * Donee can exercise power at any time

Answer 39

Under the majority rule followed in Virginia, there is no exercise of the power Exception: * Power of appointment exercised by implication if in donee's will she attempted to dispose of property subject to the power as though it was her own * Only way to give effect to that provision in her will

Answer 40

When there is _clear and convincing evidence_ of a contract either: * In the will * From extrinsic evidence * By clear implication from surrounding circumstances

Answer 41

1. Apply wills law * Try to admit the contractual will to probate using contest and revival arguments 2. Apply contract law * Try to impose a constructive trust in favor of the beneficiary of the contractual will by arguing breach of contract

Answer 42

* Survivorship accounts * E.g., property passing by right of survivorship, including tenancy by entirety, joint tenancy, etc. * Payable on death transfers * E.g., Property passing by contract, including life insurance benefits, employee retirement benefits * Intervivos trusts * E.g., property held in trust and trust terms govern * Powers of appointment * E.g., property over which decedent held power of appointment NON-PROBATE INSTRUMENTS ALWAYS TRUMP WILLS

Answer 43

Permits _augmenting the probate estate_ with: * Non-probate transfers * Gifts to the decedent's spouse within a few years So as to allow the decedent's surviving spouse to reach a portion of the non-probate assets

Answer 44

If descendants * 1/3 of augmented estate If no descendants * 1/2 of augmented estate _PLUS_ interest at _6%_ from date of death until share is satisfied

Answer 45

* Spouse * Court (if spouse incapacitated, so state can get medicaid) NOT: * Conservator or guardian of spouse * Spouse's estate after she dies

Answer 46

File _notice_ of election within _6 months_ after: * Will admitted to probate * Administrator of intestate estate appointed _Note_: court can extend to up to 90 days if a suit is brought to construe the will or augment the estate

Answer 47

All _contribute ratably - i.e., equitable apportionment_

Answer 48

1. Probate estate * Property passing by will or intestacy, net of debts and expenses 2. Transfers to spouse * Lifetime gifts to spouse if still owned or sold by spouse at time of death * Exception: * Exclude tangible personal property (e.g., jewelry, birthday gifts, etc.) 3. Transfers to third parties * **STRINGY LEGS**) * Strings-attached lifetime transfers * Life insurance * Employee death benefits * Gifts in excess of $14,000 * Survivorship estates

Answer 49

(**JOG**) * Joinder * Transfers that the spouse agreed to * Old transfers * Irrevocable transfers to 3d parties before Jan. 1, 1991 * Gifts to decedent * Separate property acquired by gift, will, or inheritance from anyone other than surviving spouse

Answer 50

(augmented estate - property already passing to spouse) / (elective share - property already passing to spouse)

Answer 51

Only an _interested party_ - i.e., person with _economic interest_ that would be _adversely affected_ by will's probate

Answer 52

The entire will is denied probate There is a presumption that a _witnessed will_ resulted from testamentary capacity But for a _holographic will_: * The _proponent_ of the will must prove that at the time of execution, the testator did not/was not: 1. Understand the _nature_ of the act he was doing 2. Know the _extent_ of his wealth 3. Know the _natural objects_ of his bounty 4. Able to _interrelate_ the above three issues

Answer 53

No. This is not sufficient to establish lack of capacity. The proponent of the will must fail to establish the four elements

Answer 54

_Only the provisions_ of the will resulting from undue influence are denied probate (cf. lack of testamentary capacity) Test * Someone with standing - i.e., economic interest that will be adversely affected, must show: * Suspicious circumstances * That demonstrate a desire to overcome the mind and will of the testator * the influence was a but-for cause of the disposition

Answer 55

* Mere _opportunity_ to exert undue influence * Mere _susceptibility_ to influence (e.g., age, illness) * Mere _fact of unnatural disposition_ (e.g., excessive gift)

Answer 56

Initially, a party with standing - i.e., economic disadvantage But it _shifts_ if that party proves a _confidential relationship_ between the alleged influencer and the testator, thus creating a _presumption of undue influence_

Answer 57

1. Relationship of trust 2. Priest-penitent 3. Doctor-patient 4. Guardian-ward 5. Attorney-client

Answer 58

Creates a presumption of undue influence, that the person can only rebut by showing by a _preponderance of the evidence_ that the testator was able to resist and make his own decisions

Answer 59

Virginia courts strictly enforce no contest clauses and adhere closely to the words T used. Exceptions: * The following are not contests: * Elective share * Petition for ommitted spouse * Petition for ommitted descendant

Answer 60

Generally, where he was domiciled at death _Unless_ he was moved to a nursing home, then it is where he was domiciled before the move, because that's where he intended to be

Answer 61

1. Take an oath * That as far as you know, this is decedent's _last will_ * That you will _faithfully perform_ your duties 2. Post bond * Equal to value of decedent's personal estate and any real estate to which you have a power of sale 3. Provide surety on the bond * Unless the will waives this requirement

Answer 62

Yes, provided that they: * Appoint a Virginia resident agent for service of process * Are not a non-Virginia bank

Answer 63

During first 30 days after death 1. Spouse if no descendants 2. Spouse with written consent of all descendants 3. Any distributee that is sole heir 4. Any distributee with written consent from other distributees After those 30 days * Any distributee as clerk of court sees fit

Answer 64

Generally, yes. However, Virginia has enacted a statute that requires any interest in a multi-party account to be included in probate, even if held in joint tenancy (in which case half is included)

Answer 65

1. Capacity * Standard is lower than in other K formation capacity reqs * Must be 18 and of sound mind 2. Intent * T must know "nature of her bounty" and "the natural objects of her affections" * Undue influence, fraud, mistake, conditional wills 3. Formalities (for a witnessed will) * Holographic wills are valid in Virginia * Can even modify via holographic codicil

Answer 66

**Revocation by operation of law** - omitted spouses and forgotten children **Revocation by written instrument** - express or implied (later-in-time will will imply revocation) **Revocation by physical act** - **Revival of previously revoked wills** - **Dependent relative revocation** (DRR) - W1 (in time) and W2 (in time). Something is wrong with W2. Can W1 be revived? It depends. Ask, if the T was here, what would T prefer? Revival or intestacy

Answer 67

* Lapse statutes * Anti-lapse statutes * Levels of succession * Per capita * Per stirpes

Answer 68

* Specific devise/bequest * Designates a particular, distinct item of property * General devise/bequest * Gives a dollar amount or percentage of estate value

Answer 69

For a document to constitute a will, it must: 1. In and of itself, manifest testamentary intent -- i.e., include “death talk” indicative of intent that it be a will, and 2. Have been created by someone with capacity to execute a will

Answer 70

* Phrases that do NOT constitute a will * “Please draw up a will…” or “I’m considering…” or “I want to think about…” or “then we’ll discuss what you think of my plan…” or “I will sign the necessary documents when I see you.” * Phrases that are more likely to be treated as will, but still must meet execution requirements * “I’ve decided to…” or “I want my X to go to Y.”

Answer 71

Any property the decedent owned that does not transfer by non-probate transfer

Answer 72

Usually there is either a will that covers all probate property or no will at all. But partial intestacy is possible, if there is a will with no effective “residuary clause.”

Answer 73

* Personal Representative: Person who manages the estate * e.g. inventories property, decides who gets what, obtain court approval to distribute, transfer the property, pay taxes, close the estate * Executor * Personal Representative when there is a valid will * Administrator * Peronal representative if there's no will/will doesn't name a living/competent/willing person * Court appoints them

Answer 74

* one must: * take oath that she will faithfully perform her duties and * give bond to secure her performance * amount: equal to value of decedent’s personal estate plus any real estate over which the executor is given a power of sale. * Exception: * waived by will * the estate value is not \>$25,000

Answer 75

* An individual who is not a resident of Virginia may serve as executor of a decedent's estate and/or as trustee of a testamentary trust * Must appoint a resident agent for service of process

Answer 76

* A non-resident bank cannot serve as executor or testamentary trustee.

Answer 77

1. A sole distributee (heir), or his designee. 2. Any distributee, or his designee, who presents written waivers of the right to qualify from all other competent distributees.

Answer 78

* Court/clerk grants administration to the first distributee/designee who applies

Answer 79

The court will give those persons an opportunity to be heard and choose the most suitable from among them

Answer 80

Personal Representative is a fiduciary Subject to many of the same duties as the trustee Duties of: * proper management of estate property * prudent investment

Answer 81

Extensive powers, including power to: * Employ agents and advisors * Maintain tort/contract actions to enforce rights of the decedent, * Access the decedent's digital accounts under the Uniform Fiduciary Access to Digital Assets Act

Answer 82

* For communications, the decedent must have authorized access. * For financial accounts, the institution can give access without the decedent’s authorization, but can also demand a court order confirming necessity.

Answer 83

* Probate begins in the state where the decedent was domiciled * in the county where the decedent resided before dying or entering a long-term care facility. * personal property * passes according to the law of domicile state. * Real property * passes according to the law of where it is located (situs).

Answer 84

Ancillary Probate

Answer 85

Rules apply to property not governed by non-probate device or will.

Answer 86

Heirs- Persons who take under intestate succession Descentants- A person's children, grandchildren, etc...

Answer 87

1. spouse 2. children 3. other descendants (grandchildren, etc.) 4. parents 5. siblings 6. siblings’ descendants (nephews/nieces, grandnephews/nieces, etc.) 7. grandparents 8. grandparents’ descendants not already on this list (uncles/aunts, cousins)

Answer 88

Are all descendants of the surviving spouse? * Surviving spouse takes entire estate Are any descendants of another spouse? * Surviving spouse takes 1/3 * Decedents take 2/3 equally

Answer 89

Spouse takes entire estate

Answer 90

* Takers at the first generational level where someone is living take an equal share with alive generation members and deceased members who have descendants * Shares of takers at the first generational level who are not living pass to their descendants, who take _per stirpes_

Answer 91

In the following order: **PS GLE(E)** 1. **Parents** * 1/2 to each or all to surviving parent 2. **Siblings** * Or their descandants per stirpes 3. **Grandparents** * 1/2 to maternal, and their descendants per stirpes * 1/2 to paternal, and their descandants per stirpes 4. **Laughing heirs** * Remote kin, including kin of last deceased spouse 5. **Escheat** * Estate goes to the Commonwealth

Answer 92

Divide according to modern per stirpes Find first generation with a living taker. Divide estate equally with living taker and predeceased members who have descendants. Descendants get split of what their ancestor would have received.

Answer 93

* For communications, the decedent must have authorized access. * For financial accounts, the institution can give access without the decedent’s authorization, but can also demand a court order confirming necessity.

Answer 94

Under the Uniform Simultaneous Death Act, in order to be a survivor, beneficiary must survive by at least _120 hours/5 days_ _Note_: decedent could provide differently in his will or in any non-probate transfer; this only applies in the absence of that

Answer 95

* This only comes into play if decedent had no spouse, descendants, or parents. * Half-blood siblings inherit half as much as whole-bloods * E.g., if decedent has one brother from same parents, and a sister with just one common parent, brother gets 2/3 and sister gets 1/3 * But if only half-bloods, all half-bloods take equal shares

Answer 96

* Hald uncle should not receive a half share. * Division of the estate into halves (“moieties”) – one half for maternal grandparents and their descendants and one half for paternal grandparents and their descendants – happens first. * Distribute each half as if it were an estate unto itself, the grandparents’. Only then take into account whether any heirs in the same category are halves or wholes.

Answer 97

* Stranger adoption * Child enters a completely new family. * RULE: Complete substitution. Child and child's descendants inherit from adoptive family (and vice versa), but no longer from biological parents or their kin (and vice versa). * Step-Parent Adoption * Child is adopted by the spouse of a biological parent, terminating rights of other biological parent if alive * RULE: Child retains inheritance rights from both biological parents and gains inheritance rights from the new, adoptive parent.

Answer 98

Biological mother- always full inheritance rights Biological father * Typically established by father's name on the birth certificate, but other ways are below. Only inheritance rights if paternity is proven, by establishing either: (MAAC) * Marriage * The alleged father married the mother before or after the child's birth. * Acknowledgement * The man, while alive, and the child’s mother executed a state-provided acknowledgement of paternity. * Adjudication * While the father was alive, a court determined (typically by genetic tests) that he was the biological father. * Clear and convincing evidence * Evidence that father is a (BAD CAT)

Answer 99

(**BAD CAT**) 1. _Birth certificate_ * He actually consented to be named the father on the birth certificate 2. _Admission_ * He admitted to being the father either before a court or under oath 3. _DNA_ * A DNA test established him as father 4. _Cohabitation_ * He cohabited with the mother during the ten months before child's birth 5. _Allowed to use surname_ * He allowed the child to use his name 6. _Tax return_ * He claimed the child as a dependent on his tax return

Answer 100

* Abandonment * Slayer Statute

Answer 101

* only a spouse or a minor’s parent (i.e., someone who had support duty) * desertion must have continued until decedent’s death * desertion must have been without cause (e.g., not because of DV)

Answer 102

You cannot take any economic benefit by deed, will, intestacy, or non-probate transfer from someone if: 1. _Convicted_ of either: * Murder of the decedent * Voluntary manslaughter of the decedent 2. Found to be a murderer by a _preponderance of the evidence_ in a civil proceeding * Result: slayer is treated as though he pre-deceased the decedent. * But, slayer's _descendants_ are treated as of claiming from the decedent, and not through the slayer

Answer 103

Definition * Lifetime gifts to descendants that are of significant value from the perspective of the donor's estate Presumption * Lifetime gift is presumed to be advancement if of significant value unless descendant can rebut by proving it was just a gift Hotchpot * Any descendant that received an advancement and is taking an _INTESTATE_ (only applies intestate) portion of the grantor's estate must go into _hotchpot_ - i.e., take the advancement into account Valuation * Value of the gift for purposes of hotchpot is the value at the time it was received - not at the donor's death

Answer 104

Definition * When an intestate heir or any will or non-probate beneficiary renounces the interest that they may receive either in whole or in part Requirements 1. Must be in _writing_ 2. Must be _signed_ 3. Must be _delivered_ to: * Estate representative (intestate) * Trustee (inter vivos trust) * Payor (life insurance or IRA) 4. Must meet _time limits_ * 9 months after either death of decedent or establishment of trust

Answer 105

Durviving spouse is ***entitled*** to the following _statutory_ rights, which: * Take priority over any creditors' claims * Are above and beyond amounts passing to surviving spouse by will, intestacy, or elective share. * **FERH** (**F**air **E**ntitlement **R**ight **H**ere) 1. _**F**amily allowance up to $24,000_ * Only to provide support for one year 2. _**E**xempt personal property up to $20,000_ * E.g., cars, furnishings, appliances, personal effects, or cash necessary to make up balance 3. _**R**esidence_ * Only if either: * Spouse claims elective share * Decedent died intestate with descendants from a former marriage 4. _**H**omestead allowance of $20,000_ * Only if both: * Spouse gets less than $25,000 from decedent's estate (by will or intestacy) * Spouse does not claim elective share * If there is no surviving spouse, minor children get 1, 2 & 4.

Answer 106

Extensive powers, including power to: * Employ agents and advisors * Maintain tort/contract actions to enforce rights of the decedent, * Access the decedent's digital accounts under the Uniform Fiduciary Access to Digital Assets Act

Answer 107

Personal Representative is a fiduciary Subject to many of the same duties as the trustee Duties of: * proper management of estate property * prudent investment

Answer 108

The court will give those persons an opportunity to be heard and choose the most suitable from among them

Answer 109

* Court/clerk grants administration to the first distributee/designee who applies

Answer 110

1. A sole distributee (heir), or his designee. 2. Any distributee, or his designee, who presents written waivers of the right to qualify from all other competent distributees.

Answer 111

* A non-resident bank cannot serve as executor or testamentary trustee.

Answer 112

* An individual who is not a resident of Virginia may serve as executor of a decedent's estate and/or as trustee of a testamentary trust * Must appoint a resident agent for service of process

Answer 113

* one must: * take oath that she will faithfully perform her duties and * give bond to secure her performance * amount: equal to value of decedent’s personal estate plus any real estate over which the executor is given a power of sale. * Exception: * waived by will * the estate value is not \>$25,000

Answer 114

* Personal Representative: Person who manages the estate * e.g. inventories property, decides who gets what, obtain court approval to distribute, transfer the property, pay taxes, close the estate * Executor * Personal Representative when there is a valid will * Administrator * Peronal representative if there's no will/will doesn't name a living/competent/willing person * Court appoints them

Answer 115

Usually there is either a will that covers all probate property or no will at all. But partial intestacy is possible, if there is a will with no effective “residuary clause.”

Answer 116

Any property the decedent owned that does not transfer by non-probate transfer

Answer 117

* Inter-vivos trust * grantor might be trustee + sole beneficiary for life, remainder beneficiaries equitable owners on grantor’s death * Joint tenancy in real property * Joint titling of registered assets and accounts * title car, boat, financial account in 2 or more names and indicate “with survivorship" (survivorship presumed with bank accounts) * Life insurance * pay premiums during life to generate payout to named beneficiary at death * POD/TOD designations on financial accounts * identified payable-on-death or transfer-on-death beneficiary on banks/retirement accounts, etc... * Transfer on Death Deed * Modern device for transfer of real estate

Answer 118

* B. * Effective non-probate asset transfers trump wills. * If B predeceased C, it would pass to C per the will provisions.

Answer 119

* Predeceased * named beneficiary dies before the account or policy holder (no substitution of beneficiary’s family) * interests of joint tenants WROS vanish if they die first. * Divorce * by law presumptively severs joint tenancies and revokes beneficiary designations and trust provisions * Disclaimer * Written, signed, delivered. * Can’t disclaim all of a JT if you contributed * Slayer statute * convicted of murder or voluntary manslaughter * or shown by preponderance of evidence in civil proceeding that joint tenant or beneficiary committed either murder/vol. man. * Spouse protections * elective share, etc. * Decedent’s legal obligations * debts, taxes

Answer 120

* Someone died + you need to figure out who gets their property * A trust problem – Was one created? Did trustee breach duties?

Answer 121

* Fulfill the apparent or presumed intent of the decedent. * So when in doubt, ask yourself what you would want if you were the decedent.

Answer 122

* Surviving spouses * spouses are deemed entitled to share of a decedent’s wealth regardless of the decedent's intentions. * Same view underlies equitable division in divorce

Answer 123

An interested party can challenge a will as a whole, a portion of a will, or a revocation of a will by showing: 1. a misrepresentation, 2. an intent to deceive for the purpose of influencing disposition, 3. effect of the deception on T – i.e., T is deceived, and 4. the deception caused T to do what T otherwise would not have done.

Answer 124

If a term in a will has a legal meaning, assume the testator intended that meaning. A T is “presumed to devise the entire estate which he owns unless a contrary intention appears from the will” and a will “is construed to pass the greatest estate which the language employed is capable of conveying `unless a contrary intention appears in the will.’”

Answer 125

* Another modern statute authorizes Ts to give direction to the executor, in a separate document, as to distribution of property identified in the will as subject to executor discretion in distribution. * Like a legal list, it must be clearly referred to in the will and be signed. As an additional safety, it must be notarized. Thus, requirements for effectiveness: * reference in will * signature * notarization

Answer 126

* Ts can name an inter vivos trust as a will beneficiary, regardless of whether that trust exists at time of will execution and regardless of whether it has any property in it before T’s death. * An advantage relative to a testamentary trust is that the T need not state the trust terms in the will.

Answer 127

Expenses and unsecured debts should be paid: 1. from any personal property in an intestate estate (whether there is complete or partial intestacy); 2. from personal property disposed of by will 3. from real property in an intestate estate; 4. from any real property disposed of by will; and 5. from any non-probate transfers. * Take from the residuary estate first, then reduce general bequests, then demonstrative legacies, and finally specific devises and bequests.