Wills & Trusts MEE Rule Statements Flashcards
Revocation of a will by a subsequent instrument
A will may be revoked in whole or in part by a subsequently written will or codicil. If the second testamentary instrument does not contain any express language of revocation or an earlier will, the two instruments will be ready together. The second instrument revokes the first to the extent of inconsistent provisions.
Effect of a beneficiary dying during a testator’s lifetime
The gift lapses / fails and becomes part of the residual estate.
Virginia Anti-Lapse Statute
If the pre-deceasing beneficiary was a grandparent or a lineal descendent of the grandparent of the testator AND left descendants behind who survived the testator, the beneficiary’s descendants become the takers.
Effect when a testator’s will does not make a complete disposition of the estate
Assets not disposed of pass by the rules of intestate succession
Effect of divorce on bequests made in a will
All gifts made to the former spouse are revoked and treated as though the ex-spouse predeceased the testator.
Requirements: Contract to make a will
1) clear and definite
2) based on valuable consideration
3) proof must be clear and convincing
4) a writing signed by the decedent
Where is a will / estate probated?
In Virginia, the ranked preference for location of probate is:
1) known place of decedent’s residence
2) where any real estate that is owned / devised by the decedent
3) where the decedent died
Non-resident of the commonwealth as a probate trustee
It is permissible for an out of state resident to be the trustee or personal representative, but they most post bond and consent to service in Virginia
Jurisdiction of probate of wills
Circuit court will have jurisdiction over the probate of wills
Minimum requirements for a validly executed non-holographic will
1) signed / acknowledged by the testator
2) two witnesses are present and sign when signed / acknowledged
What are the responsibilities of a life tenant?
A life tenant is responsible for the ordinary expenses and taxes relating to the property during their lifetime and may not commit waste.
What are the rights of a life tenant?
A life tenant has the right of possession and to the full enjoyment and use of the land and all the profits arising during his life estate therein. This includes entitlement to the entire income generated by the property.
Valid bequest through an unattested document
If a will refers to a written statement or list to dispose of items of tangible property not otherwise bequeathed, the statement shall be given the effect to the extent that it describes the items of tangible personal property and their intended recipients with:
1) reasonable certainty
2) document is signed by the testator though it does not satisfy the requirements for a will
Surviving spouse elective share
When a testator domiciled in Virginia dies, the testator’s surviving spouse is entitled to claim an elective share in the spouse’s augmented estate in the amount equal to 50% of the value of the marital property portion of the augmented estate. 33% if the testator left behind children that are not the children of the surviving spouse.
How a surviving spouse claims an elective share
The surviving spouse must bring a claim with 6 months of the date the will is admitted to probate. They must make the claim in writing and have it admitted into the record before the court that has jurisdiction over the estate
Effect when a surviving spouse deserts prior to spouse’s death
If a surviving spouse deserts the spouse prior to the spouse’s death, the surviving spouse is barred from any and all interest in the estate of the deceased spouse.
Common law marriage in Virginia
Virginia does not authorize common law marriage
Creation of a pour over trust
The addition of property must be made in writing, identified under the will, and executed before or concurrently with the will
Requirements to establish a valid trust
1) Settlor has capacity to make a trust
2) Settlor has intent to create a trust
3) Trust must have a definite beneficiary
4) Trustee must have duties to perform
5) Same person may NOT be the sole trustee and the sole beneficiary
Effect of reconciliation on a previously abandoning spouse prior to testator’s death
If the surviving spouse and the testator reconcile, the surviving spouse is not barred from making the elective share
Rules for a signed statement to dispose of personal property
A written statement or list may be:
1) referred to as one that is in existence at the time of the testator’s death
2) prepared before or after the execution of the will
3) altered by the testator at any time
4) a writing that has no significance apart from its effect on the dispositions made by the will
Effect of a decree of absolute divorce on a transfer on death deed
A transfer on death deed is revoked upon a decree of absolute divorce unless the transfer on death deed provides otherwise
Requirements for a holographic will
1) testamentary capacity (18 years old; of sound mind)
2) wholly in the testator’s handwriting
3) signed by the testator
Judicial Dispensing Power: No Writing
The court’s disposing power cannot be applied to cure the failure of a will to be in writing
