Wills

Question 1

If an intestate decedent is survived by a spouse and descendants, who takes what?

Answer 1

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

Question 2

If an intestate decedent is survived by a spouse but not any descendants, who takes what?

Answer 2

Spouse takes entire estate

Question 3

When is a spouse disqualified from inheritance?

Answer 3

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

Question 4

What should also be considered in any situation involving a surviving spouse, whether the decedent left a will or died intestate?

Answer 4

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)
  
  1. Family allowance up to $24,000
     
     • Only to provide support for one year
  2. Exempt personal property up to $20,000
     
     • E.g., cars, furnishings, appliances, personal effects, or cash necessary to make up balance
  3. Residence
     
     • Only if either:
       
       • Spouse claims elective share
       • Decedent died intestate with descendants from a former marriage
  4. 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

Question 5

If an intestate decedent is survived descendants but not a spouse, who takes what?

Answer 5

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

Question 6

If a decedent is not survived by a spouse or descendants, who takes what?

Answer 6

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

Question 7

What is the rule in Virginia regarding half-bloods?

Answer 7

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

Question 8

What is the difference between stranger adoption and stepparent adoption?

Answer 8

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

Question 9

Which parents does a non-marital child have inheritance rights from?

Answer 9

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)

Question 10

What satisfies the clear and convincing evidence requirement for paternity?

Answer 10

(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

Question 11

Under the paternity test, which forms of evidence require a specific procedure?

What is that procedure?

Answer 11

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:
  
  1. Affidavit asserting paternity
  2. Action to establish paternity

Question 12

What are the limits on survivorship in Virginia?

Answer 12

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

Question 13

What are advancements?

Explain the process that they trigger

Answer 13

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

Question 14

What is ademption by satisfaction?

What is the rule in Virginia?

Answer 14

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:
  
  1. Declared by donor in writing that it satisfies the bequest
  2. Acknowledged by donee in writing that it satisfies bequest
  3. Donor’s will acknowleded that lifetime gifts are in satisfaction of bequests

Question 15

What is disclaimer?

What constitutes a valid disclaimer?

Answer 15

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

Question 16

What is Virginia’s slayer statute?

Answer 16

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

But your descendants are treated as of claiming from the decedent, and not through the slayer

Question 17

What are the different types of will that Virginia recognizes?

Answer 17

1. Witnessed
2. Holographic
3. Nuncupative (for soldiers and sailors)

Question 18

When does the UPC harmless error rule apply?

Answer 18

Only applies if:

1. Decedent died on or after July 1, 2007
2. Proponent brings petition within one year of death
3. All interested parties are made party to proceedings

Question 19

What is the effect of the UPC harmless error rule?

Answer 19

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

Question 20

What are the limitations of the UPC harmless error rule?

Answer 20

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

Question 21

What are the requirements for a witnessed will?

Answer 21

1. Age
   
   • Testator must be 18 years old unless emancipated
     
     • Can be excused by harmless error statute
2. Signature
   
   • Testator must sign the will or have a proxy sign
     
     • CANNOT be excused by harmless error statute
3. 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
4. Subscribed
   
   • sign a statement on the will that they witnessed the T’s signing (also called “attestation”).

Question 22

In Virginia, what are the implications if a witness to a will is interested?

Answer 22

Virginia does not imposes any restrictions on interested witnesses

Question 23

What are codicils?

Answer 23

Additions to an earlier will, which must be executed with same formalities as underlying witnessed or holographic will

Question 24

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?

Answer 24

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

Question 25

What are the requirements for a holographic will?

Answer 25

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

Question 26

What is necessary to meet the signature requirement for a holographic will?

Answer 26

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

Question 27

If a testator sends a letter to his attorney including a list of things to add to the will, what is the effect?

Answer 27

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

Question 28

What is interpartes probate?

Answer 28

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

Question 29

How can a will be self-proved?

What is the result?

Answer 29

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.

Question 30

What is the statute of limitations for challenging a will decision?

Answer 30

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

Question 31

What is the time limit for offering a will for probate?

Answer 31

No time limit

Question 32

What if property subject to a will is sold to a bona fide purchaser before probate?

Answer 32

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

Question 33

How many witnesses are required to probate:

Holographic will

Witnessed will

Answer 33

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

Question 34

Where does probate take place?

What if real property subject to a will is located somewhere else?

Answer 34

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

Question 35

What is the Virginia anti-lapse statute?

What does it apply to?

What is the common law approach?

Answer 35

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

Question 36

What is a class gift?

What is not a class gift?

What are the two primary rules regarding class gifts?

Answer 36

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)

Question 37

What is the distinction between a class gift and a gift to a group of individuals?

Answer 37

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

Question 38

In Virginia, when are children in gestation class members?

Answer 38

Only if both:

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

Question 39

What happens if the testator executes a will and then marries afterwards?

Answer 39

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

Question 40

What happens if the testator executes a will and then divorces after?

Answer 40

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)

Question 41

What happens if the testator executes a will and then has a child afterwards?

aka pretermitted child

Answer 41

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

Question 42

How can a will be revoked in Virginia?

Answer 42

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

Question 43

Can a will be revoked by someone other than the testator?

Answer 43

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

Question 44

What are the presumptions regarding revocation of a will?

Answer 44

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

Question 45

Can Will #1 be revived simply by revoking Will #2, which revoked Will #1?

Answer 45

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)

Question 46

What is the doctrine of dependent relative revocation (DRR)?

Answer 46

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

Question 47

Despite the doctrine of DRR, how do you revive a will that has been physically revoked?

Answer 47

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

Question 48

What is implied revocation?

Answer 48

• 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

Question 49

How is a testamentary estate distributed?

Answer 49

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

Question 50

What are the different types of testate assets?

Answer 50

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

Question 51

What is the concept of abatement in Virginia?

Answer 51

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

Question 52

How are estate taxes paid out from an estate?

Answer 52

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

Question 53

What is the doctrine of ademption by extinction?

Explain the exceptions

Answer 53

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

Question 54

How does Virginia treat the exoneration of liens?

Answer 54

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

Question 55

What is required for an extrinsic document to be incorporated by reference in a will?

Answer 55

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

Question 56

What is the doctrine of legal list?

Answer 56

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

Question 57

What is the act of independent significance doctrine?

Answer 57

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.

Question 58

How are mistakes or ambiguities dealt with in a will?

Answer 58

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

Question 59

What sorts of extrinsic evidence can be admitted to cure an ambiguity in a will?

Answer 59

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

Question 60

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?

Answer 60

• 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.

Question 61

What do the following general statements bequest:

1. “All of my personal property.”
2. “All of the furniture and personal property in my house.”

Answer 61

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

Question 62

What is a power of appointment?

What are the different parties involved?

When are the different types?

Answer 62

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

Question 63

What if the donee of a testamentary power appointment never references it in her will?

Answer 63

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

Question 64

When is a “will” deemed to be a contract, and not a “will”?

Answer 64

When there is clear and convincing evidence of a contract either:

• In the will
• From extrinsic evidence
• By clear implication from surrounding circumstances

Question 65

What is the analysis when a will is held to be contractual?

Answer 65

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

Question 66

What are the major types of non-probate assets?

What is unique about these?

Answer 66

• 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

Question 67

What is the elective share statute?

Answer 67

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

Question 68

What is the amount of the elective share?

Answer 68

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

Question 69

Who can make an elective share?

Answer 69

• Spouse
• Court (if spouse incapacitated, so state can get medicaid)

NOT:

• Conservator or guardian of spouse
• Spouse’s estate after she dies

Question 70

How does a spouse make an elective share?

Answer 70

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

Question 71

How are the different beneficiaries of an estate affected by the elective share?

Answer 71

All contribute ratably - i.e., equitable apportionment

Question 72

How do you compute the augmented estate?

Answer 72

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

Question 73

What is not included in the augmented estate?

Answer 73

(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

Question 74

How do you compute the elective share percentage?

Answer 74

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

Question 75

Who can bring a will contest?

Answer 75

Only an interested party - i.e., person with economic interest that would be adversely affected by will’s probate

Question 76

What happens if a testator lacks testatmentary capacity?

When does a testator lack testamentary capacity?

Answer 76

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

Question 77

If a testator was adjudicated incompetent, should a court rule that he lacked testamentary capacity?

Answer 77

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

Question 78

What is the effect of a will resulting from undue influence?

What is the test for undue influence?

Answer 78

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

Question 79

What is not enough to establish undue influence?

Answer 79

• Mere opportunity to exert undue influence
• Mere susceptibility to influence (e.g., age, illness)
• Mere fact of unnatural disposition (e.g., excessive gift)

Question 80

In establishing undue influence, who has the burden?

Answer 80

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

Question 81

What are the five confidential relationships for purposes of undue influence?

Answer 81

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

Question 82

For purposes of undue influence, what does a confidential relationship do?

Answer 82

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

Question 83

Are no contest clauses effective in wills?

Answer 83

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

Question 84

Where is a decedent’s will probated?

Answer 84

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

Question 85

How do you qualify as the executor of someone’s will?

Answer 85

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

Question 86

Can a non-Virginia resident be an executor of a will in Virginia?

Answer 86

Yes, provided that they:

• Appoint a Virginia resident agent for service of process
• Are not a non-Virginia bank

Question 87

Who takes priority in becoming an executor of a decedent’s estate?

Answer 87

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

Question 88

In Virginia, is property held in joint tenancy considered non-probate assets?

Answer 88

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)

Question 89

Three considerations for any will

Answer 89

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

Question 90

Revocation and Revival

Answer 90

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

Question 91

DISTRIBUTION

Answer 91

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

Question 92

Difference between specific and general devise/bequest

Answer 92

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

Question 93

Basic Requirements for All Wills

Answer 93

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

Question 94

Testementary Intent and Handwritten letters of instruction to an attorney

Answer 94

• 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.”

Question 95

What property must go through the probate process

Answer 95

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

Question 96

Partial Intestacy

Answer 96

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.”

Question 97

List of probate administrators and when they’re appointed

Answer 97

• 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

Question 98

Requirements to qualify as a Personal Representative

Answer 98

• 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

Question 99

Eligibility of Non-Residents to be trustees/executors

Answer 99

• 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

Question 100

Eligibility of Non-Resident banks to be executors or trustees

Answer 100

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

Question 101

Priority for Appointment as Administrator of the Estate

Answer 101

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.

Question 102

What happens if there’s no one available to be appointed as administrator/ no one petitions to be administrator within 30 days

Answer 102

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

Question 103

What happens if more than one distributee notifies the court of an intent to qualify as administrator

Answer 103

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

Question 104

Personal Representative’s Duties

Answer 104

Personal Representative is a fiduciary

Subject to many of the same duties as the trustee

Duties of:

• proper management of estate property
• prudent investment

Question 105

Personal Representative’s Powers

Answer 105

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

Question 106

Personal Representative’s Access to Decedent’s Digital Assets

Answer 106

• 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.

Question 107

Probate Venue Rules

(Where probate begins, what laws apply to personal/real property)

Answer 107

• 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).

Question 108

What probate action is called when it is filed in another venue than the original action

Answer 108

Ancillary Probate

Question 109

Applicability of Intestate Succession rules

Answer 109

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

Question 110

Definitions of Heirs and Descendants

Answer 110

Heirs- Persons who take under intestate succession

Descentants- A person’s children, grandchildren, etc…

Question 111

Priority List for Intestate Succession

Answer 111

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)

Question 112

If an intestate decedent is survived by a spouse and descendants, who takes what?

Answer 112

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

Question 113

If an intestate decedent is survived by a spouse but not any descendants, who takes what?

Answer 113

Spouse takes entire estate

Question 114

If an intestate decedent is survived by descendants but not a spouse, who takes what?

Answer 114

• 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

Question 115

If a decedent is not survived by a spouse or descendants, who takes what?

Answer 115

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

Question 116

How to split intestate property when an heir has predeceased.

Answer 116

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.

Question 117

Personal Representative’s Access to Decedent’s Digital Assets

Answer 117

• 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.

Question 118

Simultaneous Death Rule

Answer 118

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

Question 119

Half-Blood Siblings

Answer 119

• 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

Question 120

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?

Answer 120

• 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.

Question 121

Rules for Adopted Children

Answer 121

• 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.

Question 122

How a descendant can prove decedent was their parent when it is uncertain

Answer 122

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)

Question 123

Evidence that proves the Clear and Convincing Evidence Standard necessary for determining potential heir’s parentage.

Answer 123

(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

Question 124

The two bars to succession

Answer 124

• Abandonment
• Slayer Statute

Question 125

Abandonment

Answer 125

• 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)

Question 126

Virginia Slayer Statute

Answer 126

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

Question 127

Advancements

Definition and Rules

Answer 127

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

Question 128

Disclaimer Definition and Requirements

Answer 128

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

Question 129

Surviving Spouse Elective Share

Answer 129

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)
  
  1. Family allowance up to $24,000
     
     • Only to provide support for one year
  2. Exempt personal property up to $20,000
     
     • E.g., cars, furnishings, appliances, personal effects, or cash necessary to make up balance
  3. Residence
     
     • Only if either:
       
       • Spouse claims elective share
       • Decedent died intestate with descendants from a former marriage
  4. 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
• If there is no surviving spouse, minor children get 1, 2 & 4.

Question 130

Personal Representative’s Powers

Answer 130

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

Question 131

Personal Representative’s Duties

Answer 131

Personal Representative is a fiduciary

Subject to many of the same duties as the trustee

Duties of:

• proper management of estate property
• prudent investment

Question 132

What happens if more than one distributee notifies the court of an intent to qualify as administrator

Answer 132

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

Question 133

What happens if there’s no one available to be appointed as administrator/ no one petitions to be administrator within 30 days

Answer 133

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

Question 134

Priority for Appointment as Administrator of the Estate

Answer 134

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.

Question 135

Eligibility of Non-Resident banks to be executors or trustees

Answer 135

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

Question 136

Eligibility of Non-Residents to be trustees/executors

Answer 136

• 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

Question 137

Requirements to qualify as a Personal Representative

Answer 137

• 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

Question 138

List of probate administrators and when they’re appointed

Answer 138

• 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

Question 139

Partial Intestacy

Answer 139

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.”

Question 140

What property must go through the probate process

Answer 140

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

Question 141

Devices for non-probate transfer at death

Answer 141

• 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

Question 142

If A’s life insurance policy says B is the beneficiary, but names C as the beneficiary in her will, who prevails?

Answer 142

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

Question 143

Types of issues/circumstances that can make a non-probate transfer ineffective

Answer 143

• 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

Question 144

the exam typically deals with one of these two Trusts & Estates questions.

Answer 144

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

Question 145

The overriding aim of the law relating to all avenues of death-time wealth transfer

Answer 145

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

Question 146

When does the intent of the decedent take the back seat?

Answer 146

• 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

Question 147

How to challenge a will on the basis of fraud

Answer 147

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.

Question 148

How do rules of construction resolve ambiguities in a will?

Answer 148

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.’”

Question 149

Guidance to Executor Statute

Answer 149

• 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

Question 150

Pour-Over Trust

Answer 150

• 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.

Question 151

Priority List for Insulation from Debts

Answer 151

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.