Wills & Trusts Flashcards
The language of a will is construed…
…in light of the circumstances as they existed at execution. [J22]
If a will beneficiary dies before the testator…
…the gift lapses.
However, if beneficiary is a grandparent or lineal descendant of a grandparent of the testator, the anti-lapse statute provides for the descendants of the decedent to take in their place.
Does not apply if the will uses words showing contrary intent (“to my surviving brothers” stops the anti-lapse statute from saving the gift to a predeceased brother with heirs)
[J22]
When a testator makes a specific devise, and the identified property is not a part of the testator’s estate at his death, the gift is…
…adeemed and the devisee receives nothing.
However, the beneficiary of a stock that no longer exists due to merger or sale would receive any shares of another entity received as a result of the merger or sale of the original company. [J22]
When a person has executed a valid will, but does not dispose of all of the property by the will, then that person…
…dies partially intestate. [J22]
When a will does not include a ___ any part of the estate of a decedent not effectively disposed of through the will, passes to the decedent’s heirs under Virginia’s intestacy laws.
Residuary provision. [J22]
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. [J22]
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.
If it is a specific bequest, then the bequest falls to the residuary taker. If there is no residuary taker, then the gift passes under intestacy. [J22]
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.
[from Feb ’20:] If such afterborn or after-adopted child, or any descendant of his, dies unmarried, without issue, and before reaching 18 years of age, his portion of the estate, or so much of his portion as may remain unexpended, shall revert to the person to whom it was given by the will. [J22]
Distributions from an estate ___ be made directly to a minor.
Cannot.
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.
The age of majority in Virginia is 18. [J22]
A child born after a will is executed is a…
…pretermitted heir. [J22]
The proponent of a 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. [F15]
Dead man statute
In an action by or against a dead person or their representative, no judgment or decree shall be rendered in favor of an adverse or interested party founded on his uncorroborated testimony. [F16]
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.
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. [F16]
Technically, “inheritance” comes…
…by intestacy not by will. [F16]
A later will ___ a prior will where their terms disagree.
Supersedes [F17]
Can a will dispose of property gained between execution and admission to probate?
Yes. A will is construed to speak as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. [F17]
Statutory requirements for a transfer on death deed (TODD):
the deed stated that transfer to the designated beneficiary was to occur at the transferor’s death;
the deed was recorded before the transferor’s death in the circuit court where the property was located; and
the deed was never revoked.
Will supersede a will with respect to the specific property. [J18]
Must a written statement/list to dispose of tangible personal property satisfy testamentary formalities?
No but it must describe items of tangible personal property and their intended recipients with reasonable certainty and be signed by the testator. [J18]
Adoption before the age of majority…
…terminates the adopted party’s status as descendent of their biological parents. [J18]
To be ___ and thus ___, a non-holographic will must be…
Duly executed; entitled to probate.
…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. [J20]
Where a Will was 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 [J20]
May a non-resident serve as the executor of a VA estate?
Yes.
However, a nonresident fiduciary must (i) appoint a Virginia resident or the Clerk of Court to receive service of process on his or her behalf, and (ii) post a surety bond. [J20]
If the debt in issue exceeds the value of the estate’s assets under the personal representative’s control, then debts are paid in the following order:
[i] expenses of administration,
[ii] family and homestead allowances,
[iii] funeral expenses, debts and taxes with priority under federal law,
[iv] medical and hospital expenses,
[v] debts and taxes due Virginia,
[vi] debts and taxes to localities, and
[vii] all other claims. [J20]
A will should be admitted to probate in the jurisdiction…
…where the decedent had a place of residence (followed by place of property ownership then place of death).
For a patient in a nursing home, the place of legal residence is rebuttably presumed to be the same as it was before he or she became a patient. [J20]
