Wills & Estates Flashcards
Pour Over Trust
A Pour Over Trust: A will that adds property into an existing trust is known as a pour over trust.
a. In order to create a Pour Over Trust it must be:
i. In writing
ii. Identified in the will
iii. Executed before or concurrently with the will
**The trust does not need to be executed with the same formalities as the will.
A Pour Over Trust can be revocable and unfunded at the time it is created.
A trust is created when?
a. The settlor has capacity to create the trust
b. The settlor has the intent to create the trust
c. The trust has a definite beneficiary (or is an honorary or charitable trust)
d. The trustee has duties to perform
e. The same person is not the sole trustee and sole beneficiary
Support Trust
The trustee can only distribute so much income as is necessary per the terms of the trust, which may include those needed for the beneficiaries education health and support.
Can a will devise property to the trustee of a trust?
A will may validly devise property to the trustee of a trust, regardless of the existence of the corpus of the trust, if 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.
Revocable Trust
An intervivos trust created on or after July 1, 2006 is revocable and amendable by the settlor unless the trust terms expressly state that the trust is irrevocable and cannot be amended.
However, for such trusts created before that date, the rule is opposite: Such trusts are irrevocable and cannot be amended unless expressly stated.
A revocable trust can be revoked or amended either by substantial compliance with the method provided in the trust, or if the trust does not provide such method, any method manifesting clear and convincing evidence of the settlor’s intent.
Will Probate Venue
Probate Venue: State where decedent was domiciled, county where decedent resided before death or entering a long term care facility.
a. Order of venue:
i. Residence of decedent
ii. Where decedent owned real estate
iii. Where decedent died.
What law applies for things devised in will?
a. Personal property of decedent – Law of domicile state
b. Real property – Law of state where property is located.
When does intestate succession apply?
(i) the decedent left no will;
(ii) the decedent will is denied probate;
(iii) the e decedents will does not make a complete disposition of the estate.
VA’s Intestate Succession - What is the order?
Who inherits if there is a surviving spouse and a child with that spouse?
Spouse 100%
Who inherits if there is a surviving spouse children from another marriage or relationship?
Spouse 1/3, Children split 2/3
No spouse + kids, who inherits?
The share of the estate that does not pass to a surviving spouse, passes to the decedents descendants who take per capita with representation, i.e., each living person at the first generation takes a share, and the share of each deceased person at that level, passes to his issue by right of representation.
What do half bloods receive?
Collateral kin who are half-blood only receive half as much as siblings who are whole blood. So half siblings get half of what full siblings from both parents get.
What do adopted children inherit?
Same as bio kids
Requirements for a Valid Will?
The will must be signed by the testator
The testator must sign in the presence of both witnesses (present at the same time)
iii. The will must be witnessed by two attesting witnesses
iv. Each witness must sign in the presence of the testator
Burden of Proof for Validity of Will
Burden is on the will proponent to prove by the preponderance of the evidence that the testator had the capacity and that the will was validly executed.
Testamentary Capacity
To have capacity to make the will, the testator must have sufficient capacity to:
1. Understand the nature of the act she is doing
2. Know the nature, the condition, and extent of her property
3. Know the names of and her relationship to the natural objects of her bounty
4. Understand the scope and meaning of the will provisions.
Presumption of Capacity: There is a presumption of capacity upon proof of compliance with the statutory requirements for valid will execution.
Notes on Testamentary Capacity:
An adjudication of incapacity and appointment of a conservator or guardian ad litem are not prima facie evidence of testamentary capacity. The stand necessary to conduct ones business affairs is different from the testamentary capacity necessary to make a will.
Halographic Will
- It is entirely in the handwriting of the testator, and
- Evidences testamentary intent by a writer who has testamentary capacity
Self Proving Will
A will may be self-proving by use of a self-proving affidavit.
Requirements for Self-Proving Affidavit
(1) Signature of Testator on WIll
(2) Signature of 2 witnesses on Will
(3) sign a sworn affidavit before a notary public, reciting all the elements the witnesses would testify to in open court:
(a) that the testator was 18 or older, of sound mind;
(b) that the testator declared to the witnesses that this was her will and that she asked them to sign as attesting witnesses;
(c) and that the testator and witnesses all signed in the presence of each other.
What if there is no self proving affidavit?
If there is no self-proving affidavit, a will offered for probate must be proved by the witnesses testimony in court or in a deposition.
Notice does not need to be given off the time and place of the deposition unless the probate is opposed by a party.
Incorporation by Reference of an External Document Into a Will
For a document external to the will to be incorporated in a will, it must:
1. Be in existence at the time when the will is executed
- The will must refer to the document as being in existence
- The will must identify and describe the document with reasonable certainty
Exception for Personal Property
(a) The document must be written and signed by testator, and
(b) describe the items with reasonable certainty.
- The writing may be referred to as one in existence at the time of the testator’s death.
- It may be prepared before or after the will’s execution, and the testator may alter it at any time.
What is a codicil?
i. A codicil is a later testamentary instrument that amends, alters, or modifies a previously executed will.
ii. A codicil must be executed in the same testamentary formalities as a will.
iii. The valid execution of a codicil that makes reference to the revoked will would cause the will to be revived under the republication by codicil.
Methods of Revoking a Will
(1) Subsequent Written Instrument
(2) Destruction
(3) Revocation by Implication
Will Revocation - Subsequent Written Instrument
VA allows for revocation of a will by a subsequent written instrument which expressly revokes the earlier will, provided that it is executed with the same formalities required for the execution of a will.
A holographic will can revoke an earlier holographic will or typewritten attested will.
Will Revocation - By Implication
If a testator executes a second testamentary instrument that does not contain any express language of revocation of an earlier will, to the extent possible the two instruments are read together. The second instrument is treated as a codicil to the will. However, the second instrument revokes the first as to any inconsistent provisions. This is known as revocation by implication.
Will Revocation - Destruction
If a testator with the intent to revoke a will, cuts, tears, burns, obliterates, cancels, or destroys the will, such will is void and of no effect.
Elective Share - How is Marital Property Portion of Augmented Estate Calculated?
The marital property portion of augmented estate: Is calculated by 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.
