Wills Flashcards
If an intestate decedent is survived by a spouse and descendants, who takes what?
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
If an intestate decedent is survived by a spouse but not any descendants, who takes what?
Spouse takes entire estate
When is a spouse disqualified from inheritance?
If surviving spouse willfully deserted or abandoned intestate decedent, spouse treated as if pre-deceased
Limitations:
- Desertion must have continued up until death
- Desertion cannot have been for cause - e.g., domestic violence
What should also be considered in any situation involving a surviving spouse, whether the decedent left a will or died intestate?
In addition, the surviving spouse (or if no spouse, minor children 17 or younger) 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 (Fair Entitlement Right Here)
-
Family allowance up to $24,000
- Only to provide support for one year
-
Exempt personal property up to $20,000
- E.g., cars, furnishings, appliances, personal effects, or cash necessary to make up balance
-
Residence
- Only if either:
- Spouse claims elective share
- Decedent died intestate with descendants from a former marriage
- Only if either:
-
Homestead 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
- Only if both:
-
Family allowance up to $24,000
If an intestate decedent is survived descendants but not a spouse, who takes what?
Takers at the first generational level where someone is living take per capita
Shares of takers at the first generational level who are not living pass to their descendants, who take per stirpes
If a decedent is not survived by a spouse or descendants, who takes what?
In the following order: PS GLE(E)
-
Parents
- 1/2 to each or all to surviving parent
-
Siblings
- Or their descandants per stirpes
-
Grandparents
- 1/2 to maternal, and their descendants per stirpes
- 1/2 to paternal, and their descandants per stirpes
-
Laughing heirs
- Remote kin, including kin of last deceased spouse
-
Escheat
- Estate goes to the Commonwealth
What is the rule in Virginia regarding half-bloods?
Half-bloods 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
What is the difference between stranger adoption and stepparent adoption?
Stranger adoption
- Adopted child has no relationship to either parent
- Once finalized:
- Child gets full inheritance rights from adopted parents
- Child loses all inheritance rights from biological parents
Stepparent adoption
- Adopted child already has relationship to one parent
- Once finalized:
- Child gets full inheritance rights from adopted parent
- Child retains full inheritance rights from both biological parents
Which parents does a non-marital child have inheritance rights from?
Biological mother
- Always full inheritance rights
Biological father
- Only inheritance rights if paternity is proven, by establishing either: (MAC)
-
Marriage
- Father married the mother before or after the child’s birth, but that marriage was void
-
Adjudication
- Father was held liable for child’s support, maintenance, and education in filiation proceeding
-
Clear and convincing evidence
- Evidence that father is a (BAD CAT)
-
Marriage
What satisfies the clear and convincing evidence requirement for paternity?
(BAD CAT)
-
Birth certificate
- He actually consented to be named the father on the birth certificate
-
Admission
- He admitted to being the father either before a court or under oath
-
DNA
- A DNA test established him as father
-
Cohabitation
- He cohabited with the mother during the ten months before child’s birth
-
Allowed to use surname
- He allowed the child to use his name
-
Tax return
- He claimed the child as a dependent on his tax return
Under the paternity test, which forms of evidence require a specific procedure?
What is that procedure?
Forms of evidence: imagine a hip dad walking down a (DC ST)
- DNA
- Cohabitation
- Surname
- Tax return
Procedure
- Must file within one year after man’s death, both:
- Affidavit asserting paternity
- Action to establish paternity
What are the limits on survivorship in Virginia?
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
What are advancements?
Explain the process that they trigger
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
What is ademption by satisfaction?
What is the rule in Virginia?
Definition
- If a testator provides a request IN A WILL and then makes a lifetime gift to the same person getting the property under the will
- It is presumed that the gift was in satisfaction of what was to be given under the will
- Unless the presumption can be rebutted
Virginia Rule
- There is no ademption by satisfaction of legacies unless:
- Declared by donor in writing that it satisfies the bequest
- Acknowledged by donee in writing that it satisfies bequest
- Donor’s will acknowleded that lifetime gifts are in satisfaction of bequests
What is disclaimer?
What constitutes a valid disclaimer?
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
- Must be in writing
- Must be signed
- Must be delivered to:
- Estate representative (intestate)
- Trustee (inter vivos trust)
- Payor (life insurance or IRA)
- Must meet time limits
- 9 months after either death of decedent or establishment of trust
What is Virginia’s slayer statute?
You cannot take any economic benefit by deed, will, intestacy, or non-probate transfer from someone if:
-
Convicted of either:
- Murder of the decedent
- Voluntary manslaughter of the decedent
- Found to be a murderer by a preponderance of the evidence in a civil proceeding
But your descendants are treated as of claiming from the decedent, and not through the slayer
What are the different types of will that Virginia recognizes?
- Witnessed
- Holographic
- Nuncupative (for soldiers and sailors)
When does the UPC harmless error rule apply?
Only applies if:
- Decedent died on or after July 1, 2007
- Proponent brings petition within one year of death
- All interested parties are made party to proceedings
What is the effect of the UPC harmless error rule?
A document will be an effective will even if it does not comply with Virginia’s statutes if:
- The proponent of the will
- Can establish by clear and convincing evidence
- That the document was either:
- Testator’s will
- Partial or complete revocation of a will
- Codicil or modification of a will
- Partial or complete revival of a revoked will
What are the limitations of the UPC harmless error rule?
Harmless error rule does not excuse compliance with signature requirements unless:
- Two people mistakenly signed eachother’s names
- A person signs a self-proving affidavit and not the will itself
What are the requirements for a witnessed will?
- Age
- Testator must be 18 years old unless emancipated
- Can be excused by harmless error statute
- Testator must be 18 years old unless emancipated
- Signature
-
Testator must sign the will or have a proxy sign
- CANNOT be excused by harmless error statute
-
Testator must sign the will or have a proxy sign
- Witnesses
- Witnesses must be present together when testator signs
- Can be excused by harmless error statute
- Must have at least two witnesses
- Can be excused by harmless error statute
- Witnesses must be present together when testator signs
- Subscribed
- sign a statement on the will that they witnessed the T’s signing (also called “attestation”).
In Virginia, what are the implications if a witness to a will is interested?
Virginia does not imposes any restrictions on interested witnesses
What are codicils?
Additions to an earlier will, which must be executed with same formalities as underlying witnessed or holographic will
What happens if the witness to a will does not know she is signing a will - e.g., she thinks she is notarizing power of attorney?
As long as the witness is giving legal effect to the document with her signature, it does not matter whether she knows it’s a will
What are the requirements for a holographic will?
- Handwritten
- Wholly in testator’s handwriting
- As proven by at least 2 disinterested persons
- Signed by testator
- Including death talk - i.e., indication that it is intended to be a will
What is necessary to meet the signature requirement for a holographic will?
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
If a testator sends a letter to his attorney including a list of things to add to the will, what is the effect?
Not a valid codicil because not a final act - attorney must actually make changes and have the testator execute
What is interpartes probate?
Rare situation in which there is a full judicial proceeding with notice to all interested parties to decide whether there is a valid will
How can a will be self-proved?
What is the result?
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.
What is the statute of limitations for challenging a will decision?
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
What is the time limit for offering a will for probate?
No time limit
What if property subject to a will is sold to a bona fide purchaser before probate?
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
How many witnesses are required to probate:
Holographic will
Witnessed will
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
Where does probate take place?
What if real property subject to a will is located somewhere else?
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
What is the Virginia anti-lapse statute?
What does it apply to?
What is the common law approach?
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
What is a class gift?
What is not a class gift?
What are the two primary rules regarding class gifts?
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
- 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
- Administrative convenience
- Under this rule, the class closes when some other member is entitled to a distribution (usually when testator dies)
What is the distinction between a class gift and a gift to a group of individuals?
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
In Virginia, when are children in gestation class members?
Only if both:
- They are in gestation when the testator dies
- They are bornw within ten months later
What happens if the testator executes a will and then marries afterwards?
Virginia provides for an omitted spouse, thereby including the spouse at the time of death, unless:
- Testator stipulates otherwise in the will
- Testator executes new will after marrying omitted spouse
- New spouse disclaims interest in testator’s estate
- New spouse does not survive testator
- New spouse deserts or kills decedent and is barred
What happens if the testator executes a will and then divorces after?
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)
What happens if the testator executes a will and then has a child afterwards?
aka pretermitted child
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
How can a will be revoked in Virginia?
- Physical destruction
- Valid subsequent will that revoked the previous will and its codicils either:
- Expressly
- Impliedly
- Divorce or annulment revoked portions of a will in favor of the former spouse
Can a will be revoked by someone other than the testator?
Yes, but to be valid, the act by another must be both:
- At the testator’s request
- 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
What are the presumptions regarding revocation of a will?
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
Can Will #1 be revived simply by revoking Will #2, which revoked Will #1?
Not unless either:
- Will #1 is re-executed
- Republication by codicil applies (i.e., testator validly executes a codicil to Will #1 and revives it)
What is the doctrine of dependent relative revocation (DRR)?
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
Despite the doctrine of DRR, how do you revive a will that has been physically revoked?
By meeting the proof of lost wills test:
- Establish due execution
- Prove cause of non-production (i.e., DRR)
- Prove contents of will by clear and convincing evidence
What is implied revocation?
- 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
How is a testamentary estate distributed?
- 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
- Distribute testate assets
- Distribute intestate assets
NOTE: estate taxes exception
What are the different types of testate assets?
- Residuary gifts
- Remainder of estate
- General legacies
- General amount of money
- Demonstrative legacies
- General amount of money from specific source
- Specific bequests
- Specific item
What is the concept of abatement in Virginia?
Personal property is “abated” (i.e., reduced) in order to pay creditors before real property
How are estate taxes paid out from an estate?
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
What is the doctrine of ademption by extinction?
Explain the exceptions
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
- 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
- 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
-
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
-
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
- Bequests of securities
- If the form of securities changes (i.e., via stock split, takeover, etc.) the legatee still gets whatever substance remains
How does Virginia treat the exoneration of liens?
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
- If lien was created by either:
What is required for an extrinsic document to be incorporated by reference in a will?
- Extrinsic writing must be in existence when will executed
- Will must show an intent to incorporate the writing
- Will must describe the writing with reasonably certainty
What is the doctrine of legal list?
A separate list of can pass items to named recipients in a will even if created after execution of the will if the list:
- Refers only to tangible personal property (i.e., not money)
- Describes the items with reasonable certainty
- Signed by testator
- Is referenced in the will and the will is valid
What is the act of independent significance doctrine?
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.
How are mistakes or ambiguities dealt with in a will?
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
What sorts of extrinsic evidence can be admitted to cure an ambiguity in a will?
- Facts and circumstances
- Testator statements of intent to third parties (e.g., lawyer)
Do the intended beneficiaries of a will have a cause of action against the attorney who prepared what turned out to be an invalid will?
- 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.
- Can sue if:
What do the following general statements bequest:
- “All of my personal property.”
- “All of the furniture and personal property in my house.”
- Both tangible and intangible personal property
- Tangible personal property only
- General words that follow specific items include only the types of property of the same type as the specific items
What is a power of appointment?
What are the different parties involved?
When are the different types?
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
What if the donee of a testamentary power appointment never references it in her will?
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
When is a “will” deemed to be a contract, and not a “will”?
When there is clear and convincing evidence of a contract either:
- In the will
- From extrinsic evidence
- By clear implication from surrounding circumstances
What is the analysis when a will is held to be contractual?
- Apply wills law
- Try to admit the contractual will to probate using contest and revival arguments
- Apply contract law
- Try to impose a constructive trust in favor of the beneficiary of the contractual will by arguing breach of contract
What are the major types of non-probate assets?
What is unique about these?
- 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
What is the elective share statute?
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
What is the amount of the elective share?
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
Who can make an elective share?
- Spouse
- Court (if spouse incapacitated, so state can get medicaid)
NOT:
- Conservator or guardian of spouse
- Spouse’s estate after she dies
How does a spouse make an elective share?
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
How are the different beneficiaries of an estate affected by the elective share?
All contribute ratably - i.e., equitable apportionment
How do you compute the augmented estate?
- Probate estate
- Property passing by will or intestacy, net of debts and expenses
- 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.)
- Transfers to third parties
-
STRINGY LEGS)
- Strings-attached lifetime transfers
- Life insurance
- Employee death benefits
- Gifts in excess of $14,000
- Survivorship estates
-
STRINGY LEGS)
What is not included in the augmented estate?
(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
How do you compute the elective share percentage?
(augmented estate - property already passing to spouse) / (elective share - property already passing to spouse)
Who can bring a will contest?
Only an interested party - i.e., person with economic interest that would be adversely affected by will’s probate
What happens if a testator lacks testatmentary capacity?
When does a testator lack testamentary capacity?
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:
- Understand the nature of the act he was doing
- Know the extent of his wealth
- Know the natural objects of his bounty
- Able to interrelate the above three issues
If a testator was adjudicated incompetent, should a court rule that he lacked testamentary capacity?
No. This is not sufficient to establish lack of capacity. The proponent of the will must fail to establish the four elements
What is the effect of a will resulting from undue influence?
What is the test for undue influence?
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
What is not enough to establish undue influence?
- Mere opportunity to exert undue influence
- Mere susceptibility to influence (e.g., age, illness)
- Mere fact of unnatural disposition (e.g., excessive gift)
In establishing undue influence, who has the burden?
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
What are the five confidential relationships for purposes of undue influence?
- Relationship of trust
- Priest-penitent
- Doctor-patient
- Guardian-ward
- Attorney-client
For purposes of undue influence, what does a confidential relationship do?
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
Are no contest clauses effective in wills?
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
Where is a decedent’s will probated?
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
How do you qualify as the executor of someone’s will?
- Take an oath
- That as far as you know, this is decedent’s last will
- That you will faithfully perform your duties
- Post bond
- Equal to value of decedent’s personal estate and any real estate to which you have a power of sale
- Provide surety on the bond
- Unless the will waives this requirement
Can a non-Virginia resident be an executor of a will in Virginia?
Yes, provided that they:
- Appoint a Virginia resident agent for service of process
- Are not a non-Virginia bank
Who takes priority in becoming an executor of a decedent’s estate?
During first 30 days after death
- Spouse if no descendants
- Spouse with written consent of all descendants
- Any distributee that is sole heir
- Any distributee with written consent from other distributees
After those 30 days
- Any distributee as clerk of court sees fit
In Virginia, is property held in joint tenancy considered non-probate assets?
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)
Three considerations for any will
- Capacity
- Standard is lower than in other K formation capacity reqs
- Must be 18 and of sound mind
- Intent
- T must know “nature of her bounty” and “the natural objects of her affections”
- Undue influence, fraud, mistake, conditional wills
- Formalities (for a witnessed will)
- Holographic wills are valid in Virginia
- Can even modify via holographic codicil
Revocation and Revival
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
DISTRIBUTION
- Lapse statutes
- Anti-lapse statutes
- Levels of succession
- Per capita
- Per stirpes
Difference between specific and general devise/bequest
- Specific devise/bequest
- Designates a particular, distinct item of property
- General devise/bequest
- Gives a dollar amount or percentage of estate value
Basic Requirements for All Wills
For a document to constitute a will, it must:
- In and of itself, manifest testamentary intent – i.e., include “death talk” indicative of intent that it be a will, and
- Have been created by someone with capacity to execute a will
Testementary Intent and Handwritten letters of instruction to an attorney
- 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.”
What property must go through the probate process
Any property the decedent owned that does not transfer by non-probate transfer
Partial Intestacy
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.”
List of probate administrators and when they’re appointed
- 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
Requirements to qualify as a Personal Representative
- 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
Eligibility of Non-Residents to be trustees/executors
- 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
Eligibility of Non-Resident banks to be executors or trustees
- A non-resident bank cannot serve as executor or testamentary trustee.
Priority for Appointment as Administrator of the Estate
- A sole distributee (heir), or his designee.
- Any distributee, or his designee, who presents written waivers of the right to qualify from all other competent distributees.
What happens if there’s no one available to be appointed as administrator/ no one petitions to be administrator within 30 days
- Court/clerk grants administration to the first distributee/designee who applies
What happens if more than one distributee notifies the court of an intent to qualify as administrator
The court will give those persons an opportunity to be heard and choose the most suitable from among them
Personal Representative’s Duties
Personal Representative is a fiduciary
Subject to many of the same duties as the trustee
Duties of:
- proper management of estate property
- prudent investment
Personal Representative’s Powers
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
Personal Representative’s Access to Decedent’s Digital Assets
- 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.
Probate Venue Rules
(Where probate begins, what laws apply to personal/real property)
- 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).
What probate action is called when it is filed in another venue than the original action
Ancillary Probate
Applicability of Intestate Succession rules
Rules apply to property not governed by non-probate device or will.
Definitions of Heirs and Descendants
Heirs- Persons who take under intestate succession
Descentants- A person’s children, grandchildren, etc…
Priority List for Intestate Succession
- spouse
- children
- other descendants (grandchildren, etc.)
- parents
- siblings
- siblings’ descendants (nephews/nieces, grandnephews/nieces, etc.)
- grandparents
- grandparents’ descendants not already on this list (uncles/aunts, cousins)
If an intestate decedent is survived by a spouse and descendants, who takes what?
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
If an intestate decedent is survived by a spouse but not any descendants, who takes what?
Spouse takes entire estate
If an intestate decedent is survived by descendants but not a spouse, who takes what?
- 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
If a decedent is not survived by a spouse or descendants, who takes what?
In the following order: PS GLE(E)
-
Parents
- 1/2 to each or all to surviving parent
-
Siblings
- Or their descandants per stirpes
-
Grandparents
- 1/2 to maternal, and their descendants per stirpes
- 1/2 to paternal, and their descandants per stirpes
-
Laughing heirs
- Remote kin, including kin of last deceased spouse
-
Escheat
- Estate goes to the Commonwealth
How to split intestate property when an heir has predeceased.
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.
Personal Representative’s Access to Decedent’s Digital Assets
- 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.
Simultaneous Death Rule
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
Half-Blood Siblings
- 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
A decedent’s closest surviving relatives were second cousins on the mother’s side of the family and a half-uncle on the father’s side (father’s half brother). The cousins argued the half-uncle, as a half- blood, should only get half of what they collectively got. What result?
- 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.
Rules for Adopted Children
- 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.
How a descendant can prove decedent was their parent when it is uncertain
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)
Evidence that proves the Clear and Convincing Evidence Standard necessary for determining potential heir’s parentage.
(BAD CAT)
-
Birth certificate
- He actually consented to be named the father on the birth certificate
-
Admission
- He admitted to being the father either before a court or under oath
-
DNA
- A DNA test established him as father
-
Cohabitation
- He cohabited with the mother during the ten months before child’s birth
-
Allowed to use surname
- He allowed the child to use his name
-
Tax return
- He claimed the child as a dependent on his tax return
The two bars to succession
- Abandonment
- Slayer Statute
Abandonment
- 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)
Virginia Slayer Statute
You cannot take any economic benefit by deed, will, intestacy, or non-probate transfer from someone if:
-
Convicted of either:
- Murder of the decedent
- Voluntary manslaughter of the decedent
- 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
Advancements
Definition and Rules
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
Disclaimer Definition and Requirements
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
- Must be in writing
- Must be signed
- Must be delivered to:
- Estate representative (intestate)
- Trustee (inter vivos trust)
- Payor (life insurance or IRA)
- Must meet time limits
- 9 months after either death of decedent or establishment of trust
Surviving Spouse Elective Share
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 (Fair Entitlement Right Here)
-
Family allowance up to $24,000
- Only to provide support for one year
-
Exempt personal property up to $20,000
- E.g., cars, furnishings, appliances, personal effects, or cash necessary to make up balance
-
Residence
- Only if either:
- Spouse claims elective share
- Decedent died intestate with descendants from a former marriage
- Only if either:
-
Homestead 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
- Only if both:
-
Family allowance up to $24,000
- If there is no surviving spouse, minor children get 1, 2 & 4.
Personal Representative’s Powers
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
Personal Representative’s Duties
Personal Representative is a fiduciary
Subject to many of the same duties as the trustee
Duties of:
- proper management of estate property
- prudent investment
What happens if more than one distributee notifies the court of an intent to qualify as administrator
The court will give those persons an opportunity to be heard and choose the most suitable from among them
What happens if there’s no one available to be appointed as administrator/ no one petitions to be administrator within 30 days
- Court/clerk grants administration to the first distributee/designee who applies
Priority for Appointment as Administrator of the Estate
- A sole distributee (heir), or his designee.
- Any distributee, or his designee, who presents written waivers of the right to qualify from all other competent distributees.
Eligibility of Non-Resident banks to be executors or trustees
- A non-resident bank cannot serve as executor or testamentary trustee.
Eligibility of Non-Residents to be trustees/executors
- 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
Requirements to qualify as a Personal Representative
- 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
List of probate administrators and when they’re appointed
- 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
Partial Intestacy
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.”
What property must go through the probate process
Any property the decedent owned that does not transfer by non-probate transfer
Devices for non-probate transfer at death
- 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
If A’s life insurance policy says B is the beneficiary, but names C as the beneficiary in her will, who prevails?
- B.
- Effective non-probate asset transfers trump wills.
- If B predeceased C, it would pass to C per the will provisions.
Types of issues/circumstances that can make a non-probate transfer ineffective
- 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
the exam typically deals with one of these two Trusts & Estates questions.
- Someone died + you need to figure out who gets their property
- A trust problem – Was one created? Did trustee breach duties?
The overriding aim of the law relating to all avenues of death-time wealth transfer
- Fulfill the apparent or presumed intent of the decedent.
- So when in doubt, ask yourself what you would want if you were the decedent.
When does the intent of the decedent take the back seat?
- 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
How to challenge a will on the basis of fraud
An interested party can challenge a will as a whole, a portion of a will, or a revocation of a will by showing:
- a misrepresentation,
- an intent to deceive for the purpose of influencing disposition,
- effect of the deception on T – i.e., T is deceived, and
- the deception caused T to do what T otherwise would not have done.
How do rules of construction resolve ambiguities in a will?
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.’”
Guidance to Executor Statute
- 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
Pour-Over Trust
- 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.
Priority List for Insulation from Debts
Expenses and unsecured debts should be paid:
- from any personal property in an intestate estate (whether there is complete or partial intestacy);
- from personal property disposed of by will
- from real property in an intestate estate;
- from any real property disposed of by will; and
- from any non-probate transfers.
- Take from the residuary estate first, then reduce general bequests, then demonstrative legacies, and finally specific devises and bequests.
