Wills & Estates Flashcards
Mutual Will Contracts
Two persons may enter into a binding contract not to revoke or amend their wills, but such an agreement must be explicit and will not be inferred solely from reciprocal wills. Proof of such a contract must be “clear and satisfactory.”
Enforceability of Oral Contracts
A contract regarding the disposition of specific property can be enforceable if there is clear and convincing evidence of:
- Offer
- Acceptance
- Consideration
- Essential terms
What is required when seeking to enforce an oral contract against a deceased person?
Corroboration - the claimant’s testimony requires corroboration from an independent source.
Effect of a Contract on Will Changes
A valid contract does not prevent a testator from changing their will; instead, it provides a basis for a constructive trust claim against the estate or any recipients of the disputed property.
Requirements for a Testamentary Instrument
- Capacity – The testator must have had the legal capacity to make a will.
- Testamentary Intent – The document must reference property, persons, and death, and demonstrate intent for the document itself to effect a transfer of property at death
Extrinsic Evidence of Testamentary Intent
Court has been inconsistent on whether extrinsic evidence is admissible to establish testamentary intent
Holographic Will Validity
- If the entire document is handwritten by the testator and proven by two witnesses familiar with the handwriting, no additional witnesses are required for validity (Va. Code §64.2-403).
- A first name alone may constitute a valid signature if it was the testator’s ordinary way of signing their name
Testate
Describes one who dies leaving a will.
Intestate
Describes one who dies without a will.
Issue
All of a person’s descendants of all generations (e.g., child, grandchild, great-grandchild, etc.)
Devise
A testamentary disposition of real or personal property.
Devisee
Any person designated in a will to receive a disposition of real or personal property.
Heirs
Those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent.
Distributee
Any person who has received part of the estate from the decedent’s personal representative, other than as a creditor or purchaser.
Personal Representative
Any executor, administrator, successor, special administrator, or person who performs substantially the same function under the law governing their status.
Property
Both real and personal property or any interest therein and anything that may be the subject of ownership.
Escheat
When there are no takers of the intestate estate, the property goes to the state.
What is the ‘Age of Majority’?
18.
Holographic Will
A will wholly in the handwriting of the testator without attesting witnesses. Valid in Virginia.
List the requirements for a valid holographic will.
- Be entirely in the handwriting of the testator
- Be signed by the testator
- Evidence testamentary intent
How is a will construed?
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.
What are the methods of revocation of a will?
- By the execution of a subsequent instrument
- By a physical act
- By operation of law
‘Revocation by Execution of a Subsequent Instrument’
A will may be revoked in whole or in part by a subsequently executed will or codicil stating such revocation.
‘Partial Revocation’
If the subsequently executed will, codicil, or other writing expressly revokes only a portion, the former will or codicil is revoked and superseded to the extent of such express revocation or inconsistency.
What is ‘Total Inconsistency’ in will revocation?
If a subsequent will is totally inconsistent with an earlier will, the earlier will is thereby revoked.
Explain ‘Partial Inconsistency’ in wills.
If two wills are partially inconsistent, both will be allowed to stand, and the provisions of the earlier will are given effect where not in conflict with those of the subsequent will.
What constitutes ‘Revocation by Other Writing’?
A writing other than a will or codicil may revoke a will if the writing declares an intent to revoke and is executed with testamentary formalities.
What is ‘Revocation by Physical Act’?
A will, codicil, or provision may be revoked if the testator, with intent to revoke, or someone at their direction, cuts, tears, burns, obliterates, cancels, or otherwise destroys the will.
How can a holographic will be partially revoked?
A partial revocation of a holographic will may be made by crossing out or drawing lines through particular clauses.
‘Revocation by Operation of Law’
If a testator is divorced, all provisions in the will in favor of the divorced spouse are revoked, unless expressly stated otherwise.
Intestacy
The condition of the estate of a person who dies without having in force a valid will or other binding declaration.
What are the Virginia rules of inheritance if you die with children but no spouse?
Children inherit everything.
What happens if you die with a spouse but no descendants in Virginia?
Spouse inherits everything.
What is the inheritance rule if you die with a spouse and descendants, all of whom are descendants of that spouse?
Spouse inherits everything.
What is the inheritance rule if you die with a spouse and descendants, at least one of whom is from someone other than that spouse?
Spouse inherits ⅓ of your intestate property and descendants inherit everything else (divided equally).
If you die with parents but no spouse or descendants, who inherits everything in Virginia?
Parents inherit everything.
Who inherits if you die with siblings but no spouse or parents?
Siblings inherit everything (or descendants).
If none of the closest relatives exist, who inherits?
Then to aunts and uncles, and their descendants.
Partial Intestacy
When a person has executed a valid will but does not dispose of all of the property by the will.
What are the methods of distribution in estates?
- Per Capita
- Per Stirpes
Lapse
Occurs when a beneficiary dies before the testator with no designated alternative.
‘Anti-Lapse Statute’
Unless a contrary intention appears in the will, if a devisee or legatee is a grandparent or a descendant of a grandparent of the testator and dead at the time of execution or death, the children and descendants take in the place of the deceased.
What happens if a devise or bequest fails and is not saved by the anti-lapse statute?
The property becomes part of the residue.
Can adopted and illegitimate children take under the anti-lapse statute?
Yes.
Ademption
When a testator makes a specific devise or bequest, and the identified property is not part of the testator’s estate at their death, the gift is ‘destroyed’.
Ademption by Extinction
Applies only to specific devises or bequests when the property is no longer part of the estate.
What is the ‘Stock Exception’ in Ademption?
The beneficiary receives shares of another entity received as a result of a merger or sale of the original company.
Augmented Estate
A source of property from which the surviving spouse can claim an elective share.
What is the Augemented Estate comprised of?
- the value of all property, whether real or personal, movable or immovable, tangible or intangible, wherever situated, that constitutes the decedent’s net probate estate;
- non-probate transfers to others;
- non-probate transfers to the surviving spouse;
- and the surviving spouse’s property and non-probate transfers to others.
Elective Share
The right of a surviving spouse to claim a share in the spouse’s augmented estate.
What is the claim time for an elective share?
Within six months from the admission of the will to probate or the qualification of an administrator.
What percentage of the augmented estate can a surviving spouse claim?
50% of the value of the marital property portion.
What occurs if a spouse willfully deserts the other?
The party who deserted is barred from all interest in the estate of the other.
Omitted Child Statute
Entitles a child born or adopted after the execution of a will to a portion of the estate unless specifically excluded.
Uniform Simultaneous Death Act
How to distribute estates when multiple people die at the same time or within 120 hours.
To take from the estate, the individual must survive the decedent for over 120 hours.
What happens if the owner of property and the beneficiary die simultaneously?
The property is disposed of as if the owner had survived.
Transfer on Death Deed (TODD)
Allows a real property owner to designate a beneficiary to receive title upon the owner’s death without probate.
What happens to a TODD if the transferor gets divorced?
The divorce revokes any transfer to a former spouse unless the TODD provides otherwise.
