Wills & Trusts MEE Rule Statements

Question 1

Revocation of a will by a subsequent instrument

Answer 1

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.

Question 2

Effect of a beneficiary dying during a testator’s lifetime

Answer 2

The gift lapses / fails and becomes part of the residual estate.

Question 3

Virginia Anti-Lapse Statute

Answer 3

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.

Question 4

Effect when a testator’s will does not make a complete disposition of the estate

Answer 4

Assets not disposed of pass by the rules of intestate succession

Question 5

Effect of divorce on bequests made in a will

Answer 5

All gifts made to the former spouse are revoked and treated as though the ex-spouse predeceased the testator.

Question 6

Requirements: Contract to make a will

Answer 6

1) clear and definite
2) based on valuable consideration
3) proof must be clear and convincing
4) a writing signed by the decedent

Question 7

Where is a will / estate probated?

Answer 7

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

Question 8

Non-resident of the commonwealth as a probate trustee

Answer 8

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

Question 9

Jurisdiction of probate of wills

Answer 9

Circuit court will have jurisdiction over the probate of wills

Question 10

Minimum requirements for a validly executed non-holographic will

Answer 10

1) signed / acknowledged by the testator
2) two witnesses are present and sign when signed / acknowledged

Question 11

What are the responsibilities of a life tenant?

Answer 11

A life tenant is responsible for the ordinary expenses and taxes relating to the property during their lifetime and may not commit waste.

Question 12

What are the rights of a life tenant?

Answer 12

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.

Question 13

Valid bequest through an unattested document

Answer 13

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

Question 14

Surviving spouse elective share

Answer 14

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.

Question 15

How a surviving spouse claims an elective share

Answer 15

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

Question 16

Effect when a surviving spouse deserts prior to spouse’s death

Answer 16

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.

Question 17

Common law marriage in Virginia

Answer 17

Virginia does not authorize common law marriage

Question 18

Creation of a pour over trust

Answer 18

The addition of property must be made in writing, identified under the will, and executed before or concurrently with the will

Question 19

Requirements to establish a valid trust

Answer 19

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

Question 20

Effect of reconciliation on a previously abandoning spouse prior to testator’s death

Answer 20

If the surviving spouse and the testator reconcile, the surviving spouse is not barred from making the elective share

Question 21

Rules for a signed statement to dispose of personal property

Answer 21

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

Question 22

Effect of a decree of absolute divorce on a transfer on death deed

Answer 22

A transfer on death deed is revoked upon a decree of absolute divorce unless the transfer on death deed provides otherwise

Question 23

Requirements for a holographic will

Answer 23

1) testamentary capacity (18 years old; of sound mind)
2) wholly in the testator’s handwriting
3) signed by the testator

Question 24

Judicial Dispensing Power: No Writing

Answer 24

The court’s disposing power cannot be applied to cure the failure of a will to be in writing

Question 25

Judicial Dispensing Power: No Signature by Testator

Answer 25

The dispensing power cannot be applied to excuse testator’s signature unless:
1) two people have mistakenly signed eachother’s wills (typically a married couple)
2) testator signs the self-proving affidavit but not the will itself

Question 26

Judicial Dispensing Power: Defective Witnessing

Answer 26

A court may dispense with the requirement that there be two witnesses if there is clear and convincing evidence that the decedent intended the document to be a will

Question 27

When specific property devised is not part of the testator’s estate at death - Exception for Stocks

Answer 27

The beneficiary would receive any shares of another entity received as a result of a merger or sale of the original company

Question 28

What is ademption of a bequest?

Answer 28

The destruction or extinction of a testamentary gift because the bequeathed assets no longer belong to the testator at time of death

Question 29

Pretermitted heir right of inheritance

Answer 29

If the 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 not provided for or mentioned in the will, is entitled to such portion of the estate that he would have been entitled to if the testator had died intestate