Wills Essays Rule Statements

Question 1

A spouse is treated as though they predeceased the decedent, and banned from all interest in the estate of the other spouse by intestate succession, elective share, exempt property, family allowance, and homestead exemption, if:

Answer 1

they willfully desert or abandon the decedent before death, and the desertion lasts until the decedent’s death. Unless it was for cause (DV)

Question 2

A surviving spouse has __ months to file a notice of election to claim an elective spouse after the will is admitted to probate.

Answer 2

6

Question 3

The amount of the elective share is

Answer 3

50% of the value of the marital property portion of the augmented estate

Question 4

The marital property portion of the augmented estate is calculated by

Answer 4

multiplying the value of the augmented estate by a percentage that varies depending on the length of the marriage between the decedent and the surviving spouse

Question 5

The augmented estate includes

Answer 5

(after payment of FERH, exempt property, debts and expenses, but before payment of estate taxes)

• nonprobate transfers to third persons
• nonprobate tranfers tot he surviving spouse
• suriving spouse’s property and nonprobate transfers to others
• property transferred to thrid persons outside probate immediately before death

Question 6

When decedent leaves no surviving spouse

Answer 6

entire estate passes to the decedent’s descendants per capita with representation. If no decedent’s, the parents, or to their descendants by representation

Question 7

If a decedent is survived by descendants, one of whom is not the surviving spouse’s descendant,

Answer 7

the spouse gets one-third and the remaining two-thirds goes to the decedent’s descendants

Question 8

If the intestate is not survived by any living relaative on either the maternal or paternal side,

Answer 8

his estate passes to the relatives of his deceased spouse

Question 9

To incorporate a document by reference,

Answer 9

the document must be in existence at the time the will was executed, the will must refer to the document as being in existence, and the will must identify and describe the document with reasonable certainty

Question 10

anti-lapse statute only saves a testamentary disposition to a predeceased beneficiary if

Answer 10

that beneficiary was a grandparent or a lineal descendant of a grandparent of the testator. Otherwise, goes to residuary estate.

Question 11

If a person marries after executing a will and the spouse survives the testator

Answer 11

the spouse takes an intestate share of the estate unless it appears from the will or a premarital or marital agreement that the omission was intentional.

Question 12

The omitted spouse’s share is

Answer 12

the entire estate unless the decedent left descendants from an earlier marriage, in which case the spouse’s share is one-third of the estate

Question 13

The surviving spouse is entitled to a homestead allowance of

Answer 13

$20,000 in lieu of property passing to the spouse by will or intestacy.

Question 14

If the testator had other children at the time the will was executed, the pretermitted child takes

Answer 14

the lesser of: an amount equal to the largest bequest made to any of the testator’s other children, or an intestate share

Question 15

A pretermitted child of a parent whose will was made before the birth of any of her children is entitled to

Answer 15

a share of the estate equal to that which would be due if the parent died intestate.

Question 16

if a testator seeks to disinherit someone, he must

Answer 16

make a complete disposition of his estate. If any portion of the estate passes by intestate succession, the intestacy statute and not the will governs.

Question 17

Slayer statute includes

Answer 17

rights not only under a written instrument such as the will, but also intestate succession rights, including family allowance provisions.

Question 18

Witnessed will must be

Answer 18

1) signed by the testator, 2) in presence of 2 witnesses at same time, 3) each witness must sign in testator’s presence

Question 19

burden is on ____ to prove by _____ that the testator had capacity and the will was validly executed

Answer 19

will proponent, preponderance of the evidence

Question 20

Attestation clauses

Answer 20

raise a presumption of due execution

Question 21

Self-proving affidavits

Answer 21

take place of witness testimony

Question 22

to have capacity to make a will, testator must have sufficient capacity to understand

Answer 22

1) nature of act she is doing
2) nature, condition, and extent of her property,
3) scope and meaning of the will provisions

Question 23

to establish undue influence, must prove

Answer 23

1) influence was exerted, 2) effect was to overpower the mind and will of the testator, and 3) the influence resulted in a will that wouldn’t have been made but for the influence

Question 24

presumption of undue influence if

Answer 24

clear and convincing evidence that 1) weakness of mind, 2) named a beneficiary with whom he stood in a relationship of confidence with, 3) previously expressed conflicting intentions

Question 25

fraud

Answer 25

1) false representations, 2) intent to deceive, 3) ignorant of the false.

if drafted by one in confidential relationship with testator and suspicious circumstances, presumption of fraud arises

Question 26

stock when company merges?

Answer 26

specific devisee of stock is entitled to securities of another corporation owned by the testator as a result of merger, consolidation, or other such action taken by the entity

Question 27

divorce

Answer 27

revokes any disposition or appt of property in favor of the former spouse, will is read as if they predeceased. Bequest fails and goes into residuary estate

Question 28

a holographic will must be

Answer 28

1) entirely in handwriting of testator, and 2) evidences testamentary intent by a write who has testamentary capacity

Question 29

a written will may be subsequently revoked by a holographic document if

Answer 29

that document, on its face, shows the existence of testamentary intent

Question 30

if a testator dictates the will to a beneficiary who handwrites it,

Answer 30

the beneficiary’s writing of her name can constitute her signature, even if she didn’t intend to act as a witness

Question 31

adeemed by extinction

Answer 31

when a bequest is made of specific property and that property is not in the estate at the time of the testator’s eath

Question 32

exceptions to adeem by extinction

Answer 32

if the devised property was sold by a guardian or conservator for incapacitated person, then entiteled to general legacy in amount equal to net value

Question 33

while testamentary dispositions in favor of a former spouse revoke at divorce, the same rule doesn’t apply to

Answer 33

a former spouse’s child

Question 34

the statutory requirements for wills are

Answer 34

testamentary intent and testamentary capacity

Question 35

Virginia allows for revocation of a will by a subsequent written instrument if

Answer 35

the subsequent written instrument expressly revokes the earlier will and is executed with the same formalities as are required for the execution of a will

Question 36

to have capacity to make a will, testator must be

Answer 36

1) at least 18
2) of sound mind at time of executing will, impaired capacity at other times is insufficient to show lack of capacity. Advanced age an eccentricity and physical fragility and fickleness are not enough. Adjudication of incapacity and appointment of a conservator or guardian is not prima facie evidence of lack of testamentary capacity. Admissible, but must be left to jury.

Question 37

to validly execute a will

Answer 37

the will must be 1) signed by testator, 2) testator must sign in joint presence of both witnesses, 3) witnessed by two attesting witnesses, and 4) each witness signs in testator’s presence

Question 38

common law marriage

Answer 38

Virginia does not recognize common law marriage as they cannot be entered into in VA, but they recognize them established elsewhere if they were valid when entered into

Question 39

adopted child has same/different rights as natural child

Answer 39

same

Question 40

step or foster child has same/different rights as natural child

Answer 40

different, they get nothing

Question 41

the usual method of revoking a will is

Answer 41

to execute a new will that states: “this is my last will and testament, and I hereby revoke all earlier wills and codicils thereto”

Question 42

if a testator executes a second testamentary instrument that does not contain any express language of revocation of an earlier will,

Answer 42

they are read together, but the second revokes the first regarding any inconsistent provisions (revocation by implication)

Question 43

If a husband and wife own property as tenants by the entirety with the right of survivorship, divorce

Answer 43

severs the right of survivorship and the parties thereafter hold the property as tenants in common

Question 44

if any language of the will is ambiguous

Answer 44

extrinsic evidence is admissible to cure the ambiguity in order to give meaning to the testator’s words

Question 45

a latent ambiguity exists when

Answer 45

the language of the will, although clear on its face in describing a beneficiary or property, results in a misdescription when applied to the facts to which it refers

Question 46

a patent ambiguity exists when

Answer 46

the uncertainty appears on the face of the will. Extrinsic evidence is admissible, but testator’s declarations of intent only admissible when there is an equivocation (describe 2 things equally as well)

Question 47

a condition tied to a gift that is a total restraint on marriage is:

a condition tied to a gift that is a partial restraint on marriage is:

Answer 47

invalid

valid

Question 48

a trust for the care of an animal alive during the settlor’s lifetime is

Answer 48

valid, enforceable by someone named in the trust instrument or appointed by the court. Terminates when animal dies

Question 49

when a will does not make a complete disposition of the testator’s estate,

Answer 49

there is a partial intestacy and the remaining portion of the estate will pass to the testator’s heirs in accordance with the laws of intestate succession

Question 50

if a will beneficiary is given absolute dominion over property

Answer 50

an attempted gift over to another of what remains undisposed of upon the first taker’s death is void for repugnancy.

Question 51

a will cannot make a gift of

Answer 51

non-probate assets

Question 52

exoneration of liens doctrine in Virginia

Answer 52

abolished, liens on specifically bequeathed property are not exonerated unless the will directs exoneration. Otherwise, beneficiary takes title subject to a mortgage lien

Question 53

if through the passage of time or changed circumstances the named beneficiary of a charitable trust goes out of existence, under the doctrine of cy pres the court may

Answer 53

redirect the trust to a purpose as near as possible to the charitable endeavor initially contemplated by the settlor

Question 54

a personal representative is called a “___” if named in the will

Answer 54

executor

Question 55

a personal representative is called a “____” administrator if appointed by the court

Answer 55

administrator

Question 56

if offered for probate during first 30 days after death, court will appoint as administrator

Answer 56

sole distributee or his designee, or any distributees or his designee who presents written waivers of the right to qualify from all other competent distributees

Question 57

minors can/cannot be appointed as administrators/executors

Answer 57

cannot

Question 58

upon the decedent’s death, assets held with another with the right of survivorship

Answer 58

pass directly to the survivor outside of the probate process by operation of law, not part of estate

Question 59

in virginia, the decedent’s interest in a joint account

Answer 59

is included in the estate’s inventory. However, the account does not become a part of probate estate unless 1) the probate estate is insufficient to pay debts, taxes, and expenses of the administration, and 2) an action is brought against the surviving party within 2 years after the decedent’s death

Question 60

venue for probating wills lies

Answer 60

where the decedent resided, or if none where they owned real property, or if none where they owned personal property. If in nursing home, place is where it was before they went to the nursing home

Question 61

a contract to make certain will provisions is governed by

Answer 61

contract law, not probate law.

Question 62

a contract to make certain will provisions is enforceable if

Answer 62

mutual assent and consideration, the terms are certain, and no contract defenses. First though, must prove by clear and convincing evidence that there is a contract

Question 63

a will may be self proved by

Answer 63

a self-proving affidavit. Testator and witnesses sign will and sign sworn affidavit before notary public

Question 64

proceeds of insurance on the decedent’s life are included if

Answer 64

the proceeds are receivable by the executor, or the decedent possessed at his death any incidents of ownership of the policy

Question 65

the marital deduction allows nonterminable interests in property that are includible in the decedent’s gross estate to

Answer 65

pass to the surviving spouse free of estate taxation

Question 66

a will may validly devise property to the trustee of a trust, regardless of the existence of the corpus of the trust, if

Answer 66

the trust is identified in the testator’s will and its terms are set forth in a written instrument, other than a will, executed before, concurrently with, or after the execution of the testator’s will

Question 67

a pour over gift is

Answer 67

a testamentary gift to an inter vivos trust, permits the integrated disposition of testamentary assets with a trust created during the testator’s lifetime. Even if trust is amended, pour over gifts become part of it as it exists at testator’s death

Question 68

a divorce revokes any testamentary disposition in favor of a former spouse, however, if a testator bequeaths property to the spouse of a sibling in his will and then they get divorced

Answer 68

the spouse still gets the gift

Question 69

an inter vivos trust created on or after July 1, 2006 is revocable and amendable by the settlor unless

Answer 69

the trust terms expressly state that the trust is irrevocable and cannot be amended

Question 70

a revocable trust can be revoked or amended either by substantial compliance with the method provided in the trust,or

Answer 70

or if no method is provided, by any method manifesting clear and convincing evidence of the settlor’s intent

Question 71

if the gross estate is more than the threshold filing amount, the personal representative of the estate must

Answer 71

file a federal estate tax return ($10 million)

Question 72

a revocable trust is/is not part of a decedent’s gross estate

Answer 72

is, because at the time of his death he had the right to amend or alter it

Question 73

if ground for proving paternity is by genetic testing,

Answer 73

an action to establish paternity must be filed within one year of the man’s death

Question 74

during the minority or incapacity of any beneficiary, the executor may, in his sole discretion

Answer 74

distribute directly to the beneficiary, or to a relative, friend, guardian, or committee of the beneficiary to be expended by such person for the education, maintenance, support, or benefit of the beneficiary

Question 75

if the PR does not believe that the parent of the minor with whom he resides would be a proper custodian,

Answer 75

distributions can be made to clerk to hold for child until he’s 18

Question 76

the executor powers can be

Answer 76

incorporated by reference in the will and/or granted by the court. If granted by court, they may grant all or some and may attach further conditions

Question 77

if a child entitled to a share of the decedent’s estate as a pretermitted child dies under the age of 18 years, unamrried, and without issue

Answer 77

his portion of the estate or so much thereof as may remain unexpended in his support and education reverts to the person whom it was given by the will.

Question 78

the decedent’s gross estate must include

Answer 78

the value of all property to the extent of the decedent’s interest at the time of death