Wills va bar Flashcards
anyone who died is called
descedent
valid will covering all property
testate
dying without a will
intestate
dying with a valid will, but does not cover all property.
partial intestacy
(disposed of under terms of will and laws of intestacy)
what does a decedent’s personal property entail?
real and personal property owned at death
what does a decedent’s estate exclude?
joint tenancy w/ right of survivorship, instruments that don’t pass under a will (insurance proceeds)
non-probate transfers
survival
VA says must survive by 120 hours (5 days)
what standard to provide beneficiary survival?
clear and convincing evidence
Two exceptions to the 120 hour rule
decedent’s will has changed this period or property would end up going to the commonwealth under escheat
how are adopted children treated
VA recognizes adult adoption. adopted child ceases to be the child of biological parents UNLESS adopting parent is the spouse of a biological parent
how are assisted conception children treated?
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
children born out of wedlock
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
how can a father inherit from child if clear and convincing evidence established?
openly treat child as child and no refusal to support the child
how does a wedlock child try to inherit from biological parent
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
termination of parental rights
parent loses right to inherit from child; child and parent’s relatives can still receive through child
multiple lines of inheritance
child can only inherit one way, but they will receive the larger inheritance (i.e. adopting as a son and nephew)
after-born children
will inherit as though he had been born during lifetime
VA slayer statute
if you kill (murder or voluntary manslaughter), you cannot take as a beneficiary or laws of intestacy
need conviction; excludes self defense
disclaimer
refusal to accept interest in proeprty
reasons for disclaiming
prop has a debt attached to it, another beneficiary needs it more
valid disclaimer
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)
family allowance
payments made from decedent’s personal estate to provide for spouse and minor children during administration of the estate
family allowance cap
24k or 2k for 12 months (above this must be approved by court)
cant last more than 1 year
priority of payments from estate
1) administration costs and expenses; 2) allowance
exempt property
up to 20k in value fromhousehold furniture, cars, appliances, etc.
exempt property- no surviving spouse but minor children
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)
Homestead allowance
20k; goes to surviving spouse or minor children if it deos not exist
homestead allownace instead of what the will says
if amount under will is less than 20k, it gets bumped up with homestead allowance
if died on or after 1/1/17
surviving spouse can select both elective share and homestead allowance
how can these protections be waived?
marital or premarital agreement
family residence
surviving spouse gets family residence and can live in ir unril ct. order or an agreement
the elective share
primary mechanism to ensure no disinheritance of surviving spouse
surviving spouse can choose what would receive under the will or laws of intestacy
Old rules of elective share (before 1/1/17)
left children- 1/3 of augmented estate
no children- 1/2 of augmented estate
Augmented estate
decedent’s estate plus other items including certain non-probate transfers
LOOK AT OUTLINE FOR ELECTIVE SHARE NONSENSE– TOO MANY MOVING PARTS FOR FLASHCARD
