Quick Wills & Trusts Flashcards
In what order are decedent’s debts paid from after death?
Expenses and unsecured debts paid i the following order:
1) from personal property in an intestate estate
2) from personal property disposed by will
3) from RP in an intestate estate
4) from any RP disposed by will
5) from any non-probate transfers
- For #2 and #4 -
1) residuary estate
2) general bequests
3) demonstrative legacies
4) specific bequests
What are the rules to qualifying as an executor of an estate?
1) take oath that you will faithfully perform duties
2) give bond to secure performance –in an amount equal to the value of decedent’s personal estate + value of any real estate over with the executor is given power of sale
For the first 30 days after an intestate decedent’s death, who has priority for appointment as administrator of decedent’s estate?
1) spouse who is sole distributee
2) spouse who has written consent of all decedent competant children
3) any distributee who is sole heir
4) any distributee who secures written waivers from all other competant distributees
What are the “omitted spouse” rights?
someone who marries the testator after execution of a valid will and for whom there is no provision in the will, takes the INTESTATE SHARE ofa surviving spouse (1/3 if T was survived by descendants of a prior marriage, otherwise entire estate)
What are the “statutory” rights of a surviving spouse?
REFH
Residence - ONLY if S files for elective share - has right to occupy residence
Exempt Persona Property - up to 20k
Family allowance - up to 24k
Homestead Allowance - 20k
What is the surviving spouse elective share?
SS may elect to take a statutorily set fraction of an “augmented” probate estate. (if D had any surviving descendent, 1/3, if no surviving descendents, 1/2
What is the procedure for taking the elective share?
WHEN: file a notice of election within 6 mos 1) after will is admitted to probate or 2) if no will, after administrator of intestate estate is appointed
WHO: must have been legally married to the decedent at the time of death (can be disqualified if willfully abandoned w/o cause)
How is the augmented estate calculated?
FIRST: Probate Estate - after payment of debts but before taxes
SECOND: Transfers to the spouse outside of probate (tangible gifts during marriage excluded) non-probate transfers to SS at death of D (bank accounts/insurance etc)
THIRD: transfers to third parties - certain lifetime gifts that benefit anyone other than the SS (more that 10k dyring calendar year of D’s death or 5 years before (includes property gifted in JT w/survivorship rights)
What is Demonstrative Legacy?
A general bequest that specifies a source the money should come from
Who may execute a will?
1) must be at least 18
2) must have testementary capcity. “soundness of mind” at time of execution of the will.
* If T lacks TC at the time of execution of th eill, entire will is denied probate. BUrden is on proponents of will to show by POE
What is the test for Testementary Capacity?
1) understand the nature of the act he or she was doing
2) recollect the nature and value of his or her property
3) recollet the natural objects of his bounty
4) interrelate the above 3`
What are the requirements for a holographic will?
1) wholly in T’s handwriting as verified by two disinterested witnesses
2) is signed by testator
Requirements for a non-holographic will?
1) signed by testator, or a proxy signature at T’s direction and in T’s presence
2) Witnessed: T must sign the will in the presence or 2 witnesses, both present at the same tim when the T signs it or acknowledges it (no preclusion of interested witnesses and Ws don’t need to know that the document is a will
3) Subscribed/Attestation: Each ot he 2 witnesses must “subscribe the will in in the presence of the T (aka sign a statement on the will that they witnessed T’s signing
Informalities in Will execution can be forgiven when?
IF the will proponent in court establishes by CLEAR AND CONVINCING EVIDENCE that the decedent intended the document or writing to constitute the decednt’s will.
this can be done despite non-compliance with almost any of the requirements:
1) one witness (instead of 2)
2) Timing (didn’t sign at same time)
3) signed out of testators presence
4) T signed in wrong place
5) fill in the blank will
Who can bring will contests and when?
Only INTERESTED PARTIES can bring a will contest (economic interest that would be adversely affected by probate of the will)
after a will is submitted to probate cour and entered by the clerk:
Party has 6 MONTHS to appeal the clerk’s action to the circuit court
1 YEAR to file with the court a bill in equity to impeach the will
When can a separate list of personal property be effective to pass particular items to named recipients?
TARSE
1) refers only to TANGIBLE PERSONAL PROPERTY
2) in existence AT OR AFTER EXECUTION OF THE WILL
3) must describe the items with REASONABLE CERTAINTY
4) must be SIGNED by the testator
5) must be EXPLICITLY REFERRED to by the will
What is the pre-decesaed beneficiary rule?
If a will leaves property to anyone who predeceased the T, the bequest “lapses” and goes to an alternate taker, if the will named one, or to the residuary estate
What are Anti-Lapse Statutes?
Unless a contrary intention appears in the will, if a beneficiary is 1) T’s grandparent or a descendent of T’s grandparent, AND 2) presdesceaed the testator, the deceased B’s desecendants who survive T tak in place of dead B by representation (In VA, applies ONLY to WILLS not to non-probate PODs)
What is the Pretermitted Child rule?
a child born or adopted after execution of the T’s will for whom the will makes no provision(unless will states otherwise):
1) T had no other living child when the will was executed, PC receives what that child would have received under Intestate succession
2) T has a living child when the will was executed and the will made a bequest to that child then in exstance , PC will receive lesser of what child would receive through intestacy or equivalent of the largest bequest to any child which a bequest had been made in the will
What is ademption by extinction?
If specifically bequested or devised property is not in the estate at T’s death, the bequest or devise fails
Except: Insurance proceeds from fire or casualty loss PAID AFTER T’s death
AND
Any condemnation award for the taking of property, PAID AFTER T’s death
What are the methods of revocation in Virginia?
1) a valide subsequent will that expressly or impliedly revokes the previous will and its codicils
2) divorce or annulment revokes by operation of law and provisions in favor of the former spouse
3) physical act of destruction
What physical acts count for revocation of a will in VA?
If T with the intent to revoke a will or codicil (or some person at his direction AND in his presence) CUTS, TEARS, BURNS, OBLITERATES, CANCELS OR DESTROYS a will codicil OR some provision thereto it becomes VOID.
Lost wills and mutilated wills in VA are presumed______
To have been revoked by the T. Can be rebutted by clear and convincing evdience
How can you revive a revoked will?
1) Re-execute the revoked will
2) Republish by seoarate codicil referring explicitly to revoked will
3) Dependant Relative Revocation: If a will was revoked by physical act based on an assumption that another will would be probated, but the other will never is probate, that the revocation of the first will is cancelled and first will is revived
If a testator devises property that is subject to a lien, the lien will be exonerated IF…
the will specifically calls for exoneration of the lien. Otherwise devisee assumes the lien.
What is neccesary to establish undue influence in creation of a will?
1) The effect of the influence was to OVERPOWER and will of the TESTATOR.
2) The existence and exertion of INFLUENCE.
3) The product of the influence was to PRODUCE A WILL that WOULD NOT HAVE BEEN MADE BUT FOR SUCH INFLUENCE.
To incorporate an extrinsic document not present at the will’s execution into the will by reference, all of the following requirements must be met:
(i) the document must have been in existence at the time the will was executed,
(ii) the will must refer to the document as being in existence, and
(iii) the will must identify and describe the document with reasonable certainty.
(if list contains ALL tangible personal property, may be edited AFTER execution of Will)
If one of the necessary attesting witnesses cannot be located, whatw may be substituted for the courtroom testimony of that witness?
A self-proving afidavit
What is the result when one of the attesting witnesses to a will is also a beneficiary?
The will and the bequest are valid, and the witness beneficiary can testify for or against the will.
If one of two joint tenants kills the other, how is title to the property held?
The killer and the victim’s estate each own one half of the property as tenants in common.
An adopted child has the same rights as a natural child for purposes of intestate succession. This means that the child may inherit from or through his adoptive parents and their kin. However, the child may not inherit from or through his natural parents, unless the child_________
the child was adopted by the spouse of a natural parent. In that case, the child may adopt from and through his natural parents and the adoptive parent.
How are the intestate shares of descendants distributed in Virginia?
Per Capita by representation
In a case involving a will with ambiguous language, for a latent ambiguity, evidence regarding facts and circumstances_______
is admissible
A personal representative’s duty to the estate includes es, filing ___________ with the court within_______of appointment
an inventory of the estate, within 4 months
Are intervivos trusts revocable
18 Yes. All inter vivos trusts are presumed revocable if:
Created on or after July 1, 2006
Not expressly made irrevocable by settlor
This is a reversal of the common law rule, and a result of Virginia’s adoption of the UTC
Who can revoke a trust
Settlor
Conservator, guardian, or agent only if either:
Expressly authorized by trust
Authorized by court for good cause
Does a trustee have to post bond?
Not unless the court finds it is necessary to protect the interests of beneficiaries
What is a Pour Over arrangement?
Either:
Pour over will
Non-probate vehicle pours over assets into a will
Pour over trust
Will pours over assets in an intervivos trust
What is a self-declaration of trust?
Settlor makes himself both the trustee and beneficiary
But adds a remainder beneficiary
And a successor trustee, who takes over in the event of settlor’s incapacity or death
What are the requirements for trust property?
Property must be certain and ascertainable
Legal title must be fully conveyed to trustee
What is the statue of limitations for contesting a revocable trust?
The earlier of:
Two years after settlor’s death
Six months after trustee sent person commencing action:
Copy of trust instrument
Trustee’s name and address
Notice of time allowed for contesting trust
When a trust is contested, can the trustee be subject to liability for distributing assets in according with the trust?
Only if trustee distributes assets while either:
Trustee knows of a pending judicial proceeding contesting the trust
Trustee has received notice of a possible judicial proceeding that actually commences within 60 days after the notice was sent
What happens if a beneficiary of a trust is determined to have been invalid after receiving assets?
Person must return any distribution already received, but has no further liability
What is a power of attorney?
What makes one durable?
What is a springing power of attorney?
When does a power of attorney terminate?
Definition: Authorizes another person (i.e., agent) to act on behalf of the principal
Durable: States that the power of attorney is not affected by the principal’s incapacity or disability
Springing: States that the power of attorney becomes effective upon the principal’s incapacity or disability
Termination: Upon principal’s death
Who enforces the terms of a charitable trust?
Settlor, if alive, otherwise attorney general of the state
What is the distinguishing characteristic of an intervivos trust?
It is created during the lifetime of the settlor
This is what makes it an effective non-probate transfer vehicle
What is required for a trust to have a valid purpose?
Trust cannot:
Further commission of a crime
Call for destruction of property
Impose unreasonable conditions
What happens when the stated charitable purpose of a charitable trust can no longer be accomplished?
May be reformed under Cy Pres
What are the restrictions on honorary trusts for pets?
Only animals alive during the settlor’s life can be beneficiaries (i.e., trust terminates on death of animal)
What is a constructive trust, when is one created?
Equitable device to remedy a bad act. Where a codicil would other wise be valid, revoke if:
Wrongful conduct +
Unjust enrichment
What is a resulting Trust?
Similar to a constructive trust in that it does not require the formalities of a normal trust
When the purpose of a trust cannot be achieved, the money “results back” to the settlor
Purchase money resulting trust (PMRT)
- If A purchases land and title is put in B’s name (not a relative) for no reason, there is a presumption that B holds the property in a resulting trust for A
- Presumption must be rebutted by clear and convincing evidence that the purchase was a gift for B
What is a Spendshift Trust?
Are they enforceable?
Trust that restricts the ability of creditors to reach the trust assets
Enforceable unless violates public policy:
- Child support obligations
- Fees to lawyer who protected beneficiary’s interest
- Claims by government
- Mandatory distributions not made by trustee
What is it called when a settlor places his assets in a spendthrift trust but retains the right to receive future payments at the trustee’s discretion?
Qualified self-settled spendthrift trust, or asset protection trust
