Wills & Estates

Question 1

Incorporation by reference

Answer 1

A bequest through an unattested document is valid if it meets the requirements to be incorporated into a will by reference.

If a will refers to a written statement or list to dispose of items of tangible personal property not otherwise specifically bequeathed, the statement or list shall be given effect to the extent that it describes items of tangible personal property and their intended recipients with **reasonable certainty ** and is signed by the testator although it does not satisfy the requirements for a will.

The written statement or list may be (i) referred to as one that is in existence at the time of the testator’s death, (ii) prepared before or after the execution of the will, (iii) altered by the testator at any time, and (iv) a writing that has no significance apart from its effect on the dispositions made by the will.

Question 2

Residual

Answer 2

Property that is not specifically devised will go to the residuary takers, if any.

Question 3

Effectiveness of a will

Answer 3

A will is construed in light of the circumstances as they existed at the execution, but the will does not take effect until the death of the testator.

Question 4

Ademption

Answer 4

When the testator makes a specific bequest, and the identified property is not part of the testator’s estate at her death, the gift is adeemed, and the beneficiary receives nothing.

Only in limited circumstances can other property be substituted for the adeemed property.
* E.g., stocks. With respect to stocks, the beneficiary would receive any shares of another entity received as a result of a merger or sale of the original company

Question 5

Specific bequest

Answer 5

A specific bequest disposes of an identified item of property owned by the testator.

Question 6

Ademption by extinction

Answer 6

Ademption by extinction can occur by an intentional act of the testator, including when an inter vivos gift of the property is made to another.

Question 7

Jurisdiction over probate

Answer 7

The circuit courts shall have jurisdiction of the probate of wills.

A will shall be offered for probate in the circuit court in the county or city wherein the decedent has a known place of residence; if he has no such known place of residence, then in a county or city wherein any real estate lies that is devised or owned by the decedent; and if there is no such real estate, then in the county or city wherein he dies or a county or city wherein he has estate.

Where any person has become, either voluntarily or involuntarily, a patient in a nursing home, convalescent home, or similar institution due to advanced age or impaired health, the place of legal residence of the person shall be rebuttably presumed to be the same as it was before he became a patient.

Question 8

Contract to make a will

Answer 8

A contract to make a will is controlled by the same rules and principles and is enforceable as other contracts:
(1) The contract must be certain and definite
(2) It must be based on a valuable consideration
(3) The proof thereof must be clear and convincing
(4) Where a contract deals with the transfer of real property, it must satisfy the Statute of Frauds (i.e., must be in writing, and signed by the party to be charged).

Specific performance is the default remedy for enforcement of real property contracts.

Valid contracts will supersede valid wills, on any terms where they conflict.

Question 9

Requirements for a will

Answer 9

A will that is signed or acknowledged in the presence of two competent witnesses who are present together at the same time, and who also sign the will in the presence of the testator, is duly executed and thus entitled to probate.

If a will lacks a self-proving affidavit or self-proving provisions, the witnesses must testify in court for it to be admitted to probate. If they are unavailable to testify and can show good cause for their unavailability, the witnesses may be able to substitute a sworn deposition in place of in-court testimony.

Question 10

Out of state executors

Answer 10

Out-of-state residents may serve as executors in Virginia, so long as they designate an in-state agent for service of process and post a surety bond, even if that requirement is waived in the will.

Question 11

Testamentary capacity

Answer 11

(1) The proponents of the will have the burden of proving mental competence by a preponderance of the evidence;
(2) A testator need not retain all the force of intellect which he or she had at a former period and may even be legally incompetent to transact other business;
(3) For testamentary capacity to exist, “it is sufficient that at the time the testator executed his will, he was capable of recollecting his property, the natural objects of his bounty, and their claims upon him, and knew the business about which he was engaged and how he wished to dispose of his property”; and
(4) The relevant time is at the execution of the will. Evidence of sickness or impaired intellect at other times is insufficient, standing alone, to render a will invalid.

Other things
(i) Must be 18 or older
(ii) Being placed under a guardianship is not prima facie evidence of a lack of capacity.

The proponent of the will is entitled to a presumption that testamentary capacity existed by proving compliance with all statutory requirements for the valid execution of the will. Once the presumption exists, the contestant then bears the burden of going forward with evidence to overcome this presumption, although the burden of persuasion remains with the proponent.

Question 12

Right of election

Answer 12

A spouse cannot be intentionally disinherited from the decedent’s estate.

The surviving spouse of a testator who dies domiciled in the Commonwealth has a right to take an elective share amount equal to increasing percentages based on the time they were married from the value of the marital property portion (50%) of the augmented estate.

Question 13

Election procedure

Answer 13

The claim must be made within six months from the time of the admission of the will to probate.

To make a claim of an elective share, the surviving spouse must either make the claim in person before the court having jurisdiction the estate, or in writing admitted to the record.

Question 14

Homestead allowance, exempt property, and family allowance

Answer 14

If the surviving spouse exercises their right to election, the surviving spouse’s homestead allowance, exempt property, and family allowance, if any, are in addition to the elective share.

These claims must be made within one year of the death of the testator.

Question 15

Augmented estate

Answer 15

The decedent’s augmented estate includes not only the decedent’s property and non-probate transfers to others, but also the surviving spouse’s property and non-probate transfers

Question 17

Abandonment/willful desertion

Answer 17

If a surviving spouse willfully deserts her spouse and such desertion continues until the death of the spouse, the party who deserted the deceased spouse shall be barred of all interest in the estate of the other by intestate succession, elective share, exempt property, family allowance and homestead allowance.

Question 18

Transfer on death deed

Answer 18

A transfer on death deed (TODD) allows a real property owner to designate a beneficiary to receive title to certain residential real property on the owner’s death without a probate proceeding or trust administration.

A TODD will supersede the provision of a will related to the specific real property.

If, after making a TODD, the transferor is divorced, the divorce revokes any transfer to a former spouse as designated beneficiary unless the transfer on death deed expressly provides otherwise.

Statutory requirements
(1) The deed must state that transfer to the designated beneficiary was to occur at the transferor’s death
(2) The deed must be recorded before the transferor’s death in the circuit court where the property was located; and
(3) The deed must never be revoked.

Question 19

Revoking a will

Answer 19

A prior will can be revoked in a number of ways:
(1) By the execution of a new will or writing in the manner in which a will is required to be executed, whether or not that document expressly revokes the prior will.
(2) By operation of law
If, after making a will, a testator is divorced, all provisions in the will in favor of the testator’s divorced spouse are revoked.The property devised to the divorced spouse passes as if the divorced spouse predeceased the testator, unless a contrary intention is apparent from the will.
(3) By physical act
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.

Question 20

Requirements of a holographic will

Answer 20

A valid holographic will must be (1) entirely in the handwriting of the testator, (2) signed by the testator, and (3) evidence testamentary intent.

The will must be proved by at least two disinterested witnesses familiar with her handwriting.

The testator must also be 18 and have the requisite testamentary intent and capacity.

The holographic will must be signed in such a manner as to make it manifest that the name is intended as a signature.

Virginia law does not define what shall constitute a signature, and a first name, initials or even a mark can be sufficient, if that was an ordinary way for a testator to sign her name.

Testamentary intent must be found on the face of the will, not from extrinsic evidence.

Question 21

Lapse

Answer 21

If a will beneficiary dies before the testator, the gift lapses.

In the Commonwealth, such a gift could be saved under the anti-lapse statute so long as the predeceasing beneficiary was a grandparent or lineal descendant of a grandparent of the testator.

Question 22

Intestacy (without spouse or children)

Answer 22

When a person dies intestate (or partially intestate), if there is no surviving spouse or children, then the estate descends to his kindred in the following order: to the mother and father, or the survivor; if none, then to his brothers and sisters and their descendants; if none, then the estate would be distributed to the aunts and uncles and their descendants

Question 23

Pretermitted heirs

Answer 23

If a testator executes a will when the testator has no children, a child born or adopted after the execution of the testator’s will, or any descendant of his, who is neither provided for nor mentioned in the will is entitled to such portion of the testator’s estate as he would have been entitled to if the testator had died intestate.

Question 24

Minor beneficiaries

Answer 24

Distributions from an estate cannot be made directly to a minor.

The executor of the estate would need to petition the court to have a guardian of the estate appointed in order to manage the property passing to a minor.

There is no presumption that the child’s parent or legal guardian would be the guardian for purposes of distributions from the estate.

Question 25

Reviving a revoked will

Answer 25

Once a will is revoked, the will cannot be revived unless it is re-executed with full testamentary formalities.

The valid execution of a codicil that makes referenced to the revoked will would cause the will to be revived under the republication by codicil.

Question 26

Codicil

Answer 26

A codicil is a later testamentary instrument that amends, alters, or modifies a previously executed will.

A codicil must be executed with the same testamentary formalities as a will.

Question 27

Contracts not to revoke/amend a will

Answer 27

Two persons can enter into a binding contract not to revoke or amend their wills, but the agreement must be explicit and will not be inferred simply from execution of reciprocal wills.

“Proof of the contractual nature of this agreement between testators must be ‘clear and satisfactory.’”

The proof could be in the form of an express statement in the Wills, testimony by witnesses as to “admissions” by the testators, or circumstances that imply an agreement

Question 28

Wills and contracts generally

Answer 28

The law of wills and the law of contracts are independent of one another. A valid Will should be probated as written, and if it breaches a contract, the remedy lies in contract law.

Question 29

Procedure to probate

Answer 29

Any interested party, but typically the person named as personal representative would take the original of the Will and a certified death certificate to the Clerk of the Circuit Court for probate.

If the Will is not “self-proving,” at least one of the two witnesses must appear before the Clerk to verify the decedent’s signature and validity of the execution of the Will.

The proponent of the Will must also pay the appropriate fees, and if the proponent intends to qualify as personal representative of the estate, the proponent must provide a bond with surety.

Further, certain forms must be provided to the Clerk, namely, a Memorandum of Facts (about the decedent), a Probate Tax Return, and a List of Heirs.

Question 30

Children born out of wedlock

Answer 30

VA law provides: “No claim of succession based upon the relationship between a child born out of wedlock and a deceased parent of such child shall be recognized unless, within one year of the date of the death of such parent (i) an affidavit by such child or by someone acting for such child alleging such parenthood has been filed in the clerk’s office of the circuit court of the jurisdiction wherein the property affected by such claim is located and (ii) an action seeking adjudication of parenthood is filed in an appropriate circuit court.”

Paternity must be established by clear and convincing evidence

Question 31

Lost wills

Answer 31

The general rule in Virginia is that a will which was in the possession of the decedent and which cannot be located at his death is presumed to have been destroyed by the decedent with the intent to revoke (animo revocandi).

The presumption may be rebutted with clear and convincing evidence of general statements that the decedent made about his testamentary intent, if those statements confirm the dispositive scheme in the decedent’s will.

Question 32

Personal representative when executor has died

Answer 32

The title of the personal representative is “administrator with will annexed of the estate of [name of testator], deceased” or in traditional parlance, “administrator c.t.a”.

The Court or the Clerk of the Circuit Court would appoint the Administrator CTA

Question 33

Personal representative of intestate estate

Answer 33

The title of the personal representative will be “administrator of the estate of [decedent], deceased.”

The administrator will be selected by the Court or Clerk of the Circuit Court from among the qualified applicants, who include persons entitled to distribution (heirs/distributees–living children).

Question 34

Inventory

Answer 34

Within four months of qualification, a personal representative must file an inventory of all estate assets with the commissioner of accounts.

The inventory must include all personal estate under the fiduciary’s supervision and control, the decedent’s interest in any multiple party accounts in any financial institution, all real estate over which the fiduciary has power of sale, and any other real estate that is an asset of the estate.