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]
A signature in a will must…
Be made in such a way to make it manifest that the mark is intended as a signature.
E.g., signed at the bottom, after the dispositive portion.
Constructive trusts arise…
…independently of the intention of the parties, by construction of law; being fastened upon the conscience of him who has the legal estate, in order to prevent what otherwise would be a fraud. Proof by clear and convincing evidence.
E.g., wife is “to remain beneficiary” of life insurance policy as consideration for divorce then replaced before death and replacement has received payment.
Under intestacy, if a decedent has a child born to someone other than their current legal spouse…
…the spouse gets 1/3 and the rest passes to the children.
The surviving spouse and minor children whom the decedent was obligated to support are entitled to a reasonable family allowance in money out of the estate for their maintenance during the period of administration…
…for up to one year and up to a max of $24k. The allowance takes priority over creditors.
The surviving spouse (or if none the minor children) is also entitled to a $20,000 homestead allowance from the estate that is taken in liu of the share provided for them in the will. If the spouse takes an elective share, they may still take the family and homestead allowances.
The surviving spouse of a decedent is entitled to exempt personal property from the estate…
…of value up to $20k. The exemption takes priority over creditors.
If there is no surviving spouse, the minor children of the decedent are entitled in equal shares to such property of the same value.
If the value of the exempt property selected in excess of any security interests therein is less than $20,000, or if there is not $20,000 worth of exempt property in the estate, the spouse or minor children are entitled to other assets of the estate, if any, to the extent necessary to make up the $20,000 value.
life insurance proceeds are a non-probate asset and pass to…
…the contractual beneficiary. [F20]
A guardian appointed by an executor for a minor beneficiary must:
-post bond, unless will waives doing so;
-provide a list of heirs at the time of qualification;
-file an inventory within 4 months of appointment; and
-file an accounting within 16 months of qualification and annually thereafter [F20]
If a testator with ___, does ___, such will is void and of no effect.
the intent to revoke a will;
cuts, tears, burns, obliterates, cancels, or destroys the will [J21]
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 reference to the revoked will would cause the will to be revived under the republication by codicil. [J21]
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. [J21]
A testator ___ disinherit her child.
May.
But this will not prevent the child from taking a portion of the estate that passes under intestacy. [J21]
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. [F21]
Enforcement of an oral contact against someone now deceased requires…
…corroboration from a source other than the party seeking enforcement and not in their control. [F21]
The two requirements for finding that a document is a testamentary instrument are…
(1) capacity and (2) testamentary intent. [F21]
testamentary capacity includes showing that the testator had, at time of execution, the mental capacity to __
(a) know the nature of his property,
(b) the natural objects of his bounty (his heirs),
(c) be capable of forming an orderly plan of disposition and
(d) understand the disposition made by the will.” [F15]
Testamentary intent
reference to property, persons, and death and a desire that the document itself effect the transfer of property to persons at death.
At least some evidence of such intent must appear on the face of the Will. [F21]
For a testamentary instrument to serve as a will it must also be…
…valid, i.e., properly executed. [F21]
A holographic will must be:
-entirely in the handwriting of the testator (as proved by two witnesses familiar with their handwriting);
-signed by the testator (using any marking the testator would ordinarily use);
-showing evidence of testamentary intent on its face. [F21]
