Wills and Estates Flashcards
What is the residence of a person in a nursing home?
For the purposes of probate, there is a rebuttable presumption that a decedent’s place of residence after moving to a nursing home is the city/ county they lived in before moving to the nursing home.
(This presumption can be rebutted by evidence that they intended to change their residency to the nursing home city/county. Shown by new voter registration, becoming a church member, etc.)
Where is a will probated?
The order of considerations for a place to probate:
(1) Where the decedent had a place of residence
(2) Where the decedent owned real property
(3) Where the decedent died
What are the minimum requirements for validly executing a will?
The minimum requirements for validly executing a will that is not entirely in the testator’s handwriting are:
(1) it was signed/acknowledged by the testator
(2) two witnesses were present when the testator signed/acknowledged it
What is required in a contract to will something to another person?
A contract to will something is required to have the same things a normal contract needs:
(1) to be based on valuable consideration
(2) be in writing (not oral)
(3) be signed by the testator
(4) be certain and definite in its terms
(5) be proved by clear and convincing evidence
(and subject to the SOF if necessary)
Is an out of state person allowed to serve as an executor?
Yes, but they must:
(1) consent to service in Virginia
(2) must post a surety bond
What is the omitted child rule?
If a testator executes a will when they have no children, then later has a child but does not change the will to include them, such portion of the estate will be provided for that child as if they had been included.
What happens if a person dies intestate with no spouse?
The estate descends and is passed to their children and heirs
What is a life estate?
A conveyance of real property where a specified life tenant is entitled to possession of property during their lifetime, and upon their death, transfers to a remainderman.
What is a remainderman?
Possession of property is transferred to them on the death of a life tenant. They have no right to possess the property during the tenant’s life.
(* They may have to pay taxes on the property if the life tenant refuses to, only to protect their future interest.)
What is a bequest through an unattested document?
It’s valid if it meets the requirements to be incorporated into a will by reference. Those requirements are:
If a will refers to a list or document to dispose of items of TANGIBLE PERSONAL PROPERTY, NOT otherwise bequeathed, DESCRIBES the items and their RECIPIENTS with REASONABLE CERTAINTY and is SIGNED by the testator, then it will be given the same effect as the will.
