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VA Bar 2023 > Wills and Estates > Flashcards

Wills and Estates Flashcards

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1
Q

What are the main devices for non-probate transfer at death?

A

Inter-vivos trust

Joint tenancy in real property

Joint titling of registered assets and accounts

life insurance

POD/TOD designations on financial accounts

Transfer on Death Deed

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2
Q

What can make a non-probate transfer ineffective?

A

Predeceased beneficiary

Divorce - presumptively sever joint tenancies and revokes beneficiary designations and trust provisions.

Disclaimer - written signed, delivered.

Slayer Statute - convicted of murder or voluntary manslaughter or shown by preponderance of evidence in civil proceeding that joint tenant or beneficiary committed either offense

Spouse protections - elective share

decedent’s legal obligation - debts, taxes

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3
Q

How does one qualify for personal representative?

A
  1. Take oath that they will faithfully perform their duties (unless waived by will or estate value is less than 25k.
  2. Give bond to secure performance - amount equal to value of decedent’s estate plus any real estate over which the executor is given a power of sale.
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4
Q

May a non VA resident serve as personal representative?

A

Yes. But must appoint a resident agent for service of process.

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5
Q

What are the duties and powers of a personal representative

A

Fiduciary
- proper management
- prudent investment

Power
- employ agents and advisors to maintain tort or contract actions to enforce rights of the decedent
- access the decedent’s digital accounts in some circumstances.

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6
Q

What is the venue for probate

A

where the decedent was domiciled, in the county where the decedent resided before dying or entering a long term care facility/

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7
Q

Per Capita by Representation

A

Divide the estate at the first generation down that has a surviving member. (likes grandchildren)

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8
Q

Uniform Simultaneous Death Act

A

To be a survivor for purposes of intestate succession, non probate transfer, or inheritance under a Last Will and Testament, one must survive the decedent by at least 120 hours (5 days)

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9
Q

How much do half-bloods take under intestacy laws?

A

half as much as whole bloods

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10
Q

How can one prove parentage when the father is not listed on the birth certificate?

A

Marriage ( before or after birth)
Acknowledgment
Adjudicated ( court determined test)
Clear and convincing evidence (genetic test, held out)

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11
Q

What are the bars to succession?

A

Abandonment (spouse or minor’s parent) without cause and until death.

Murder!

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12
Q

What are Advancements?

A

Lifetime gifts of significant value (relative to the decedent’s overall estate) to descendants that the decedent intended to be an advance payment of inheritance. Such intent is presumed.

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13
Q

What is the rule on advancements?

A

When an heir received an advancement, put its value into a HOTCHPOT with the actual intestate estate before dividing the actual estate.

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14
Q

What is the rule on disclaimer or probate assets and what is the result of such?

A

An intestate heir or designated beneficiary of any probate or non-probate transfer can disclaim all or part of what they are entitled to.

Result: the disclaimed interest passes as though the disclaimant predeceased.

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15
Q

What makes a disclaimer valid?

A
  1. In writing and signed
  2. Delivered to PR (no time limit)
  3. If real property disclaimer must be recorded in government records of county where land is located.
  4. For tax benefits, such as avoiding federal gift or estate tax, disclaimer must be filled with PR within nine months after death of the decedent.
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16
Q

What are the statutory rights for a surviving spouse?

A

HERF

Homestead allowance of 20k (only in lieu of property passing to spouse by will or succession.)
Exempt personal property up to 20k if not 20k of items in estate.

Residence only if SS claims ES or D survived by Descendants of former marriage

Family allowance up to one year of support payments while estate in administration, not to exeecd 24k.

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17
Q

What should you consider if you have an exam question with a small estate

A

consider whether spousal allowances will swallow entire estate and render will provisions ineffective.

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18
Q

For a document to constitute a WIll it must:

A
  1. manifest testamentary intent
  2. been created by someone with capacity to execute will
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19
Q

Who may execute a will?

A

18 years or older
mental typical or soundness of mind

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20
Q

What is the test for testator capacity

A

AVOI

understand the nature of the ACT
Recollect the nature and VALUE of property
Recollect the natural OBJECTS of bounty
INTERRELATE the above three

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21
Q

What are the requirements for a holographic will?

A
  1. Wholly in Ts handwriting, as verified by two disinterested persons
  2. Signed by testator.
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22
Q

What are the requirements for a non holographic will?

A

Signed by T (physical assistance okay, or proxy signature by someone else for T, but only at T’s direction and in T’s presence.

Witnessed: signed in the presence of two witnesses, both present at the same time when T signs it or acknowledges an earlier signature.

Subscribed: Each witness must subscribe the will in presence of testator

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23
Q

How does a proponent prove that the formalities for a holographic will were followed?

A

Court testimony of 2 people familiar with T’s handwriting

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24
Q

How does a proponent prove that the formalities for a non holographic will were followed?

A

If no self proving affidavit, then if any of the interested parties request a court hearing to establish the validity of the will, then by testimony in court of at least one of the subscribing witnessed. (or depo if attendance is impractical.

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25
Q

What is the rule for a self proving affidavit?

A

No testimony by a witness to execution is required at the time of probate if there is a self proving affidavit.

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26
Q

What is a self proving affidavit?

A

an additional document exectued when the will is executed, and typically attached to the will, the recites the facts of dues execution and is signed by T and the witnesses before a notary.

27
Q

What must a self proving affidavit contain?

A

statement by notary that T declared in presence of notary and wills two witnesses that the document is their will and that T executed it in witnesses presence

statement by notary that each witness declared in presence of notary, T and the other witness that the document is Ts will and the formalities set out above were followed

Signatures of notary, T and the two witnesses.

28
Q

What is the rule on informality forgiveness?

A

a modern statutory provision relaxes the rules by allowing probate - for up to a year after decedent’s death if all interested persons are made parties - despite the non compliance with almost any of the requirements if the will proponent in court establishes by clear and convincing evidence that the decedent intended the document or writing to constitute the decedent’s will.

29
Q

What is the one formality that must be met for will execution? and it’s exception?

A

T’s signature

  1. Two persons mistakenly sign each other’s will
  2. T signs the self proving affidavit to a will instead of signing the will itself.
30
Q

What are four things that can be excused if will proponents present clear and convincing evidence the decedent intended the document to constitute a will?

A
  1. only one witness
  2. witnesses not both present at the same time
  3. a witness signed when not in testator’s presence
  4. Will is unattested and only partly in testator’s handwriting
31
Q

Who can challenge a will and when?

A

Interested parties - someone with an economic interest adversely affected by the will’s probate.

After a will is submitted to the circuit court a party has six month to file with the court a bill in equity to impeach the will.

32
Q

What is the time limit on when a will must be offered for probate following the T’s death?

A

No time limit.

33
Q

What is undue influence of a will?

A

persuasion or manipulation that amounts to coercion or psychological domination – that it, effectively defeats the will or volition of the testator, making him do something he really doesn’t want to do but rather something the influencer wants him to do.

34
Q

Who bears the burden of contesting a will due to undue influence and what must they show and by what standard must the show it?

A

The contestant bears the burden
and may show by clear and convincing evidence:

Behavior: coercion of testator
Effect: on T - volition overcome
Causation: the influence was a but for cause of the disposition.

35
Q

What is pertinent evidence for the purpose of contesting a will?

A

circumstantial evidence in these categories:
Opportunity to exert influence
susceptibility to influence due to illness or age
unnatural or new disposition

36
Q

When does a presumption of undue influence arise?

A

T was enfeebled of mind

the alleged influencer was the dominant person in a confidential relationship with T and helped prepare or procure the will

The influencer (or spouse or child of that person) is made the beneficiary of a substantial bequest in the will, and

T previously had substantially different estate plan.

37
Q

what are examples of a confidential relationship?

A

Trust or dependency (caretaker)
Attorney/client
guardian/conservator
priest/penitent
doctor/patient

38
Q

What does the presumption of undue influence to the burden?

A

Shifts the burden of production to the will proponents, who must present evident T was able to resist influence and make his/her own decisions.

39
Q

How may an interested person challenge a will by claiming fraud?

A

As whole, in part or a revocation of the will by showing:

  1. misrepresentation
  2. intent to deceive for the purpose of influencing disposition
  3. effect of the deception on T (is T deceived?) and
  4. the deception caused T to do what T otherwise would not have done.
40
Q

What actions are not considered a contest of the will?

A

A petition for will construction or for inclusion in estate distribution as an omitted spouse or permitted child.

41
Q

When can interested persons sue an attorney liable for negligently drafting a will?

A

only if the attorney retention agreement explicitly created the opportunity.

42
Q

How are mistakes in drafting the will treated?

A

Courts are authorized to 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.

43
Q

What approach will courts take if there is a latent ambiguity?

A

use admissible extrinsic evidence that includes facts and circumstances of the testator’s declarations intent and equivocations

44
Q

What is common law incorporation by reference under wills?

A

A document extrinsic to a valid will may be incorporated by reference into the will, even if not manifesting testamentary intent and not signed if:

  1. the extrinsic writing was in existence when the will was created
  2. the will clearly expresses an intent to incorporate the writing; and
  3. the will describes the writing with reasonable certainty, so there can be no mistakes as to the document referred to in the will.
45
Q

When is the rule on incorporating a legal list under the will?

A

TARSE

  1. effective only as to tangible personal property
  2. may be created/amended at any time after execution of will
  3. Must describe the items with reasonable certainty.
  4. must be signed by testator
  5. must be explicitly referred to by the will.
46
Q

What are the requirements for guidance to the executor to be valid in a will?

A
  1. guidance must be referenced in will
  2. signature of T
  3. notarization
47
Q

What is the rule on pour over trusts created in wills?

A

T can name an inter vivos trust as a will beneficiary, regardless of whether that trust exists at the time of will execution and regardless of whether it has property in it before T’s death.

48
Q

What is the “class closing” rule?

A

A class is closed, meaning later-born class members do not share in the gift, when some class member is entitled to distribution.

49
Q

What is the sub rule to the class closing rule?

A

Children in gestation at T’s death are class members if born within ten months of T’s death.

50
Q

Unintentional Omitted Spouse Rule?

A

If a T executes a Last Will and Testament and then marries afterwards but does not amend the will, the new spouse presumptively receives what would be the spouse’s intestate portion at the time of the testator’s death if the decedent had no will.

51
Q

When does the unintentional omitted spouse rule NOT apply?

A
  1. T stipulates otherwise
  2. T executes another will or codicil after the marriage
  3. the new spouse disclaimed in prenup
  4. new spouse does not survive T
  5. new spouse abandons or murders T.
52
Q

What is the Omitted Child rule?

A

Unless the will states otherwise:

  1. T childless at execution, child born later = receives per intestate succession rule.
  2. T has children but no provision in will for them. later child receives nothing.
  3. T has children and made bequest to one or all, later child receives the lesser of intestate rule or equivalent of the largest bequest to any child.
53
Q

Rule of Ademption by extinction

A

if specifically bequeathed or devised property is not in the estate at Ts death, the bequest/devise fails.

54
Q

What are the exceptions to the rule of ademption by extinction?

A
  1. remaining property, insurance proceeds, Condemnation awards
  2. Guardian or Conservator
  3. stocks
55
Q

Ademption by Satisfaction

A

T stated in the will that such gift, if given, would be in satisfaction of the bequest, or

T declares in writing contemporaneous with the gift that the gift is to be deducted from the devise or bequest or is in satisfaction thereof,

or
Donee acknowledged in writing at the time the of gift that it was in partial or complete satisfaction of the bequest.

56
Q

What are the methods of deliberate revocation by the T?

A
  1. A valid subsequent testamentary instrument that expressly or impliedly revokes a previous will and its codicils; or
  2. physical act of destruction
57
Q

Which physical acts count for deliberate revocation?

A

With intent to revoke a will or codicil, or some person at T’s direction and in his presence

cuts, tears, burns, obliterates, cancels, or destroys a will or codicil, or the signature thereto, or some provision thereof, such will, codicil or provision is void.

58
Q

What occurs when a will is lost?

A

Rebuttable presumption that T Revoked, unless clear and convincing evidence to show otherwise.

59
Q

What occurs when a will is mutilated?

A

Rebuttable presumption that T did the mutilation with an intent to revoke.

60
Q

What is the three point test to proof of lost wills?

A
  1. establish due execution
  2. prove the cause of the will’s non production
  3. prove contents of will by clean and convincing evidence.
61
Q

What is the Dependnet Relative Revocation (DDR)

A

If the will proponent proves T would not have revoked that Will but for a mistaken belief of fact or law, the court will ignore the revocation and probate the will.

62
Q

What steps do you take when determining a will is contractual?

A
  1. Apply wills law. A competent testator can always write a new will, even if doing so breaches a contract.
  2. apply contract law. show that the later will breached a contract by clear and convincing evidence and ask the court to impose a constructive trust in favor of the 3PB of the contractual will.
63
Q

What is the priority for insulation from debts?

A

First, from any personal property in an intestate estate

Second. from personal property disposed by will

Third, from real property in an intestate estate

Fourt, from any real property disposed of by will; and

Fifth, from any non-probate transfers

64
Q

What is the common law Dead Man’s Statute

A

A person may not testify as to statements made by a decedent in support of a claim that witness was bringing against the decedent’s estate.

VA Bar 2023 (13 decks)

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