Definitions; special rules for children; slayer statue; disclaimers

Question 1

Anyone who has died is called a…

Answer 1

decedent

Question 2

When a person dies with with a valid will covering all of their property they die in …..

Answer 2

testate

Question 3

When a person dies without a valid will they die …..

Answer 3

intestate

Question 4

when a person dies with a valid will that covers some but not all of their property they die in

Answer 4

partial intestacy

Question 5

What happens in partial intestacy

Answer 5

The property is disposed of both under the terms of the will and under the laws of intestacy. The will applies to whatever property is covered by the will, and the laws of intestacy apply to everything else

Question 6

I die with a valid will that leaves my house, car and bank accounts to my kids, but i don’t say anything about my rare book collection…..

Answer 6

I die in partial intestacy, my kids get the house, car, and bank accounts under the terms of the will and my rare book collection passes under the laws of intestacy

Question 7

The decedent’s property that is distributed under the will or under the laws of intestacy is….

Answer 7

All real and personal property owned by the decedent at death.

Question 8

What property will not be distributed under the terms of a will or the laws of intestacy ?

Answer 8

1. property that passes to someone else by operation of law (joint tenancy with a right of survivorship)
2. Any property that passes by a written instrument other than a will (life insurance)

Question 9

Items that do not pass under the the terms of a will or the laws of intestacy are called ….

Answer 9

non-probate transfers

Question 10

Decedent and his wife owned a house as joint tenants with a right of survivorship…..

Answer 10

The house is not apart of the decedent’s personal estate. It does to the decedent’s surviving spouse automatically, under the rules for joint tenancy

Question 11

A beneficiary can take property under a will or the laws of intestacy only if ….

Answer 11

the beneficiary survives the decedent

Question 12

In virginia, how long does the beneficiary have to survive the decedent

Answer 12

120 hours (Va follows the 120 hour rule) (aka 5 days)

Question 13

If there is doubt about whether the beneficiary survives the decedent, the standard of proof is ….

Answer 13

clear and convincing evidence

Question 14

In va a husband and wife are both killed when a tree falls on their house. The wife dies immediately and the husband dies 24 hours later. They each had a will and left their personal estates to each other

Answer 14

The husband will be treated as not surviving the wife, so he gets nothing under the will. Both personal estates will be treated under the laws of intestacy

Question 15

2 exceptions to the 120 hour rule

Answer 15

1. A decedent can modify the application of the 120 rule by lengthening or shortening the 120 period.
2. The 120 hour does not apply if it would result in the property going to the commonwealth under escheat

Question 16

An adopted child is treated as….

Answer 16

the biological child of the adopting parent.

Question 17

An adopted child ceases to be the child of his biological parents unless……

Answer 17

The adopting parent is the spouse of a biological parent

Question 18

Husband marries wife, who has 3 children, and adopts wife’s 3 kids…..

Answer 18

The children become the husband’s children and they remain the wife’s children

Question 19

Does va law recognize adult adoption ?

Answer 19

Yes, for the purposes of inheritance

Question 20

Is a child conceived through assisted conception considered the child of the person who consents to be the child’s parent ?

Answer 20

Yes if:
1. The consent is in writing
2. The writing is given before conception
3. and the child is born during the consenting person’s lifetime (or within 10 months after the consenting person’s death)

Question 21

First step when you see a child born out of wedlock

Answer 21

Apply the rules about adoption and assisted conception

Question 22

What to do when neither the rules about adoption or assisted conception apply to a child born out of wedlock ?

Answer 22

Apply the following rules
1. A child born out of wedlock is always the child of her biological mother
2. A child born out of wedlock is the child of her biological father IF:
(a) the biological parents participated in a marriage ceremony either before or after the child’s birth; or
(b) paternity is established by clear and convincing evidence

Question 23

In order for the father to inherit from the child born out of wedlock and he was never married to the mother the father must…

Answer 23

openly treat the child as his child and must not refuse to support the child

Question 24

Generally, a child born out of wedlock who is trying to inherit from a biological parent must….

Answer 24

file an affidavit in the circuit court and ask for adjudication of parentage within one year of the parent’s death

Question 25

However, the one year filing requirement for out of wedlock kids does not apply if

Answer 25

1. the percentage has been established through birth records made out by a deceased parent
2. Admission of parentage under oath
3. A prior proceeding to determine parentage

Question 26

Effect on the termination of parental rights

Answer 26

1. the parent loses the right to inherit from the child, unless the order says otherwise
2. However, the child can still inherit from the parent
3. However, the parents relatives can still inherit from the child

Question 27

Multiple lines of inheritance

Answer 27

A child or other person who is related to the decedent through two different relationships takes a single share, using whatever relationship results in the larger share

Question 28

Aunt adopts her nephew as her son. At the aunts death the son is entitled to 100k as her nephew and 500k as her son….

Answer 28

The nephew/son only gets the 500k share as her son

Question 29

After born children

Answer 29

Any relative of a decedent who was conceived before the decedent’s death but born after the decedent’s death will inherit as through he had been born during the decedent’s lifetime

Question 30

The Virginia slayer statue

Answer 30

Generally, A person who kills the decedent is not allowed to take as a beneficiary under the decedent will or laws of intestacy

Question 31

When does the Virginia slayer statue apply ?

Answer 31

1. Applies if the killer has been convicted of murder or voluntary manslaughter in a criminal proceeding; or
2. Applies if the killer has been shown to have commited murder of voluntary manslaughter in a civil proceeding by the preponderance of the evidence ( person not the killer will have the burden)

Question 32

When doesn’t the Virginia slayer statue apply ?

Answer 32

1. acquittal by insanity (could still be convicted in civil case)
2. In a case of self defense

Question 33

Effect of the virginia slayer statue

Answer 33

The killer is treated as having predeceased the decedent

Question 34

What is a disclaimer ?

Answer 34

A refusal to accept an interest in property

Question 35

What is the effect of a disclaimer ?

Answer 35

Treated as predeceased the decedent

Question 36

What does a disclaimer need to be valid ?

Answer 36

1. Made before the disclaimant accepts or attempts to transfer the property
2. Must be in writing
3. . must describe the interest and declare it to be disclaimed
4. Disclaimant must sign and deliver it to the executor or administrator of the state (if no executor or admin file with circuit court)