Wills va bar

Question 1

anyone who died is called

Answer 1

descedent

Question 2

valid will covering all property

Answer 2

testate

Question 3

dying without a will

Answer 3

intestate

Question 4

dying with a valid will, but does not cover all property.

Answer 4

partial intestacy

(disposed of under terms of will and laws of intestacy)

Question 5

what does a decedent’s personal property entail?

Answer 5

real and personal property owned at death

Question 6

what does a decedent’s estate exclude?

Answer 6

joint tenancy w/ right of survivorship, instruments that don’t pass under a will (insurance proceeds)

non-probate transfers

Question 7

survival

Answer 7

VA says must survive by 120 hours (5 days)

Question 8

what standard to provide beneficiary survival?

Answer 8

clear and convincing evidence

Question 9

Two exceptions to the 120 hour rule

Answer 9

decedent’s will has changed this period or property would end up going to the commonwealth under escheat

Question 10

how are adopted children treated

Answer 10

VA recognizes adult adoption. adopted child ceases to be the child of biological parents UNLESS adopting parent is the spouse of a biological parent

Question 11

how are assisted conception children treated?

Answer 11

considered the child of the person who consent to be the child’s parent if:
1) in writing
2) given before conception
3) child must be born during consenting person’s lifetime or within 10 months after consenting person’s death

Question 12

children born out of wedlock

Answer 12

child born out of wedlock always the child of biological mother and biological father if parents participated in a marriage ceremony or paternity is established by clear and convincing evidence (may include DNA testing)

clear and convincing evidence allows child to inherit from dad, but not necessarily other way around

Question 13

how can a father inherit from child if clear and convincing evidence established?

Answer 13

openly treat child as child and no refusal to support the child

Question 14

how does a wedlock child try to inherit from biological parent

Answer 14

affidavit in cir. ct and ask for adjudication of parentage w/i 1 year of parent’s death

no need for 1 year filing req if:
parentage has already been established through birth parent. admission under oath or prior proceeding to determine parentage

Question 15

termination of parental rights

Answer 15

parent loses right to inherit from child; child and parent’s relatives can still receive through child

Question 16

multiple lines of inheritance

Answer 16

child can only inherit one way, but they will receive the larger inheritance (i.e. adopting as a son and nephew)

Question 17

after-born children

Answer 17

will inherit as though he had been born during lifetime

Question 18

VA slayer statute

Answer 18

if you kill (murder or voluntary manslaughter), you cannot take as a beneficiary or laws of intestacy

need conviction; excludes self defense

Question 19

disclaimer

Answer 19

refusal to accept interest in proeprty

Question 20

reasons for disclaiming

Answer 20

prop has a debt attached to it, another beneficiary needs it more

Question 21

valid disclaimer

Answer 21

1) disclaimer made before acceptance
2) in writing
3) describve the interest that is disclaimed and in fact disclaimed
4) signed and delivered to executor or adminstrator (cir. ct. if neither of these)

Question 22

family allowance

Answer 22

payments made from decedent’s personal estate to provide for spouse and minor children during administration of the estate

Question 23

family allowance cap

Answer 23

24k or 2k for 12 months (above this must be approved by court)

cant last more than 1 year

Question 24

priority of payments from estate

Answer 24

1) administration costs and expenses; 2) allowance

Question 25

exempt property

Answer 25

up to 20k in value fromhousehold furniture, cars, appliances, etc.

Question 26

exempt property- no surviving spouse but minor children

Answer 26

equal shares of 20k in prop. that would have gone to spouse comes out of the estate before beneficiaries paid (i.e. third behind allowance and administration)

Question 27

Homestead allowance

Answer 27

20k; goes to surviving spouse or minor children if it deos not exist homestead allownace instead of what the will says

Question 28

if amount under will is less than 20k, it gets bumped up with homestead allowance

Question 29

if died on or after 1/1/17

Answer 29

surviving spouse can select both elective share and homestead allowance

Question 30

how can these protections be waived?

Answer 30

marital or premarital agreement

Question 31

family residence

Answer 31

surviving spouse gets family residence and can live in ir unril ct. order or an agreement

Question 32

the elective share

Answer 32

primary mechanism to ensure no disinheritance of surviving spouse surviving spouse can choose what would receive under the will or laws of intestacy

Question 33

Old rules of elective share (before 1/1/17)

Answer 33

left children- 1/3 of augmented estate no children- 1/2 of augmented estate

Question 34

Augmented estate

Answer 34

decedent's estate plus other items including certain non-probate transfers

Question 35

LOOK AT OUTLINE FOR ELECTIVE SHARE NONSENSE-- TOO MANY MOVING PARTS FOR FLASHCARD