Wills Flashcards
(123 cards)
1
Q
Reciprocal Wills
When can an estate plan become an irrevocable contract?
A
Even if the parties to an estate plan do not expressly make an irrevocable contract, e.g., two testator’s providing for surviving spouse then children and a lawyer, a contract may still arise “as an implication from the circumstances and relations of the parties and what they have actually provided for by the instrument.”
2
Q
Reciprocal Wills
What must the proponent of an irrevocable contract do to prove the contract?
A
- Establish by clear and convincing evidence that a contract was intended by the parties to bind them to the estate plan.
- If not explicit, use attorney testimony from the planning process and circumstantial evidence
- E.g., Reciprocal wills were contractual in nature and therefore can be specifically enforced in equity
3
Q
Provision for omitted children when child not living or adopted when will made.
A
“if a testator executes a will that makes provision for a living child of the testator, a child born or adopted after execution of a testator’s will who is neither provided for nor expressly excluded by the will is entitled to the lesser of” (1) what they would receive under the laws of intestacy, and (2) the equivalent in amount to any bequest and devise to any child named in the will, and to the largest aggregate bequest/devise if there is more than one child named.
4
Q
How does co-owned property pass when co-owners with rights of survivorship fail to survive one another?
A
The property passes in proportion to the number of co-owners. So two co-owners, half the property and that half will be an asset in each co-owner’s estate.
5
Q
Is the omitted child statute implicated when the will refers to “children” generically and not by name?
A
No, the will is interpreted at the date of the decedent’s death, so “children” will include all children alive.
6
Q
What are the requirements for a holographic will?
A
- (1) it is wholly in the testator’s handwriting; (2) it is signed by the testator, and (3) is proved by at least two disinterested witnesses familiar with her handwriting. The testator must also be 18 and have the requisite testamentary intent and capacity. The holographic will must be signed in such a manner as to make it manifest that the name is intended as a signature. Virginia law does not define what shall constitute a signature, and a first name, initials or even a mark can be sufficient, if that was an ordinary way for a testator to sign her name.
7
Q
What does it mean for a disinterested witness to prove a holographic will?
A
Just means they can say that that is the testator’s handwriting.
8
Q
How do disinterested witnesses attest to a non-holographic will?
A
A will not wholly in the testator’s handwriting is not valid unless the signature of the testator is made, or the will is acknowledged by the testator, in the presence of at least two competent witnesses who are present at the same time and who subscribe the will in the presence of the testator.
9
Q
How can a testator revoke a will?
A
- If a testator 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 or codicil, or the signature thereto, or some provision thereof, such will, codicil, or provision thereof is void and of no effect.
- Another writing that satisfies the will requirements and expressly revokes all or part of a will or codocil
- Inconsistent terms in a document that satisfies the will requirements
10
Q
How can a revoked will be revived?
A
- Once a will is revoked, the will cannot be revived unless it is re-executed with full testamentary formalities. A codicil is a later testamentary instrument that amends, alters, or modifies a previously executed will. A codicil must be executed with the same testamentary formalities as a will. The valid execution of a codicil that makes referenced to the revoked will would cause the will to be revived under the republication by codicil.
11
Q
What is a disinterested witness?
A
Someone that is not a beneficiary under the will.
12
Q
Who does the anti-lapse statute apply to?
A
- a gift could be saved under the anti-lapse statute so long as the predeceasing beneficiary was a grandparent or lineal descendant of a grandparent of the testator
13
Q
What happens when a predeceasing will beneficiary is not covered by the anti-lapse statute?
A
- The gift lapses. The non-residuary gift will pass under the residuary clause. If there is not residuary clause then the gift will pass by intestacy (modified per stirpes).
14
Q
Provision for omitted children when no child living when will made.
A
If a 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 neither provided for nor mentioned in the will is entitled to such portion of the testator’s estate as he would have been entitled to if the testator had died intestate.
15
Q
Where should a will be probated? What about for a nursing home patient?
A
Under §64.2-443, the will should be admitted to probate in the jurisdiction where the decedent had a place of residence. For a patient in a nursing home, the place of legal residence is rebuttably presumed to be the same as it was before he or she became a patient.
overcome presumption by clear and convincing evidence
16
Q
What effect does a contract have on a will that causes a breach of the contract? What if the parties are beneficiaries under the will?
A
It depends on the type of contract. If it is a contract to make a will, then the contract must be enforced if valid. The Wills terms will operate to the extent that they do not conflict with the terms of the contract. (this is major rule to learn).
If it is not a contract to make a will, for example a loan agreement, it does not directly affect the will. The person(s) harmed by the breach have a separate cause of action against the estate. They should name the estate and the devisee as defendants.
A contract action is an action at law, accompanied by a right to trial by jury. Assuming that the plaintiffs can prove their cause of action, since the terms of the will breach the terms of the written agreement, an issue that would need to be resolved is whether any contract claims would be offset by amounts received by the beneficiaries under the will.
17
Q
How can you tell the difference between a regular contract and a contract to make a will?
A
Contract to make a Will will indicate a present intent to contract as to the disposition of a probate asset (“X would provide at her death”). Whereas a regular contract will promise something else (“after X’s death, the land will be sold”)
one is an intent to make a Will disposition, the other is just a promise that it will happen, not necessarily by Will.
18
Q
General rule: what is the remedy for a breach of contract involving real property? So what result when there is a breach of contract to make a Will regarding real property?
A
- Specific performance
- “[E]quity can do what is equivalent to specific performance by compelling those upon whom the legal title has descended to convey or deliver the property in accordance with the terms of the agreement on the ground that it is charged with a trust in the hands of an heir, devisee, personal representative or purchaser with notice.” The holder of legal title becomes a constructive trustee for the benefit of the beneficiaries.
19
Q
If a loan agreement says property will be sold to pay off the debt, and then a will devises that property, what result?
A
It depends on whether the debt was secured by the property. If unsecured, then the debt will be paid in the order of abatement (remainder, general, specific). So assuming the assets in the estate beside the specific devise can satisfy the claims and debts, then the specific devise will be untouched. However, if there are insufficient assets then debts are paid in the following order: [i] expenses of administration, [ii] family and homestead allowances, [iii] funeral expenses, debts and taxes with priority under federal law, [iv] medical and hospital expenses, [v] debts and taxes due Virginia, [vi] debts and taxes to localities, and [vii] all other claims.
If the debt is secured: Virginia does not recognize the exoneration of liens. The property would still be subject to the lien, unless the decedent specifically provided the estate’s assets will pay off the lien instead of the secured property.
20
Q
When will contracts supersede valid wills?
A
only on terms where they conflict
21
Q
Requirements for qualifying as the executor or administrator? Non resident?
A
- 18
- Legally competent
- must swear an oath before the clerk or judge that:
a. She will faithfully perform the duties to the best of her judgment;
b. If the will is in probate, that (to the best of her knowledge), the writing is the decedent’s last true will; and
c. If the decedent died intestate, that (to the best of her knowledge), the decedent left no will.
a nonresident fiduciary must (i) appoint a Virginia resident or the Clerk of Court to receive service of process on his or her behalf, and (ii) post a surety bond, unless a resident qualifies at the same time or the clerk waives surety under the provisions of §64.2-1411
a surety bond means a third party backs up the promise
22
Q
Who can take a will to be probated?
A
Any interested person
23
Q
Although a will need not be self-proving, what is required if there is no self-proving affidavit to probate the will?
A
at least one of the two witnesses must appear before the Clerk to verify the decedent’s signature and validity of the execution of the Will
If they are unavailable to testify and can show good cause for their unavailability, the witnesses may be able to substitute a sworn deposition in place of in-court testimony
24
Q
What must the proponent of a will provide to admit the will to probate?
A
Present it to the clerk of the appropriate probate court. The proponent of the Will must also pay the appropriate fees, and if the proponent intends to qualify as personal representative of the estate, the proponent must provide a bond (with surety if a nonresident). Further, certain forms must be provided to the Clerk, namely, a Memorandum of Facts (about the decedent), a Probate Tax Return, and a List of Heirs.
25
# Who Is Entitled to Inherit through Intestacy?
Begin with the suriviving spouse who receives...
one-third or 100 percent of the decedent’s personal estate, depending on whether the intestate decedent is survived by children or any other descendants from outside the marriage.
26
# Who Is Entitled to Inherit through Intestacy?
If there is one or more surviving children or other descendants but no surviving spouse...
The surviving children or other descendants get 100% of the decedent’s personal estate
27
# Who Is Entitled to Inherit through Intestacy?
No surviving spouse and no surviving children or other descendants—look to ...
the intestate’s parents:
* Both parents are alive—the personal estate goes to the two parents;
* Only one parent is alive—the personal estate goes to that surviving parent.
28
# Who Is Entitled to Inherit through Intestacy?
No surviving spouse, no surviving children or other descendants, and no surviving parent...
the intestate’s personal estate goes to the intestate’s siblings; if a sibling has predeceased the intestate, the child or other descendant of that sibling takes a share along with the surviving siblings
29
# Who Is Entitled to Inherit through Intestacy?
No surviving spouse, no surviving children or other descendants, no surviving parent, no surviving sibling, and no surviving descendant of a sibling...
the laws of intestacy divide the intestate’s personal estate into two equal portions and assign one-half to the paternal side and one-half to the maternal side:
* The half for the paternal side is given to paternal relatives, following a specified order, and the half for the maternal side is given to material relatives, again following a specified order.
* If there are no paternal relatives, the paternal share goes to the maternal side; if there are no maternal relatives, the maternal share goes to the paternal side.
30
# Who Is Entitled to Inherit through Intestacy?
No surviving spouse, no surviving children or other descendants, no surviving parent, no surviving sibling, and no surviving descendant of a sibling... the specified order:
* Grandfather and grandmother - or the survivorof the two, if one has already died;
* If there is no grandfather or grandmother, to uncles and aunts (and their descendants, the intestate’s cousins, if any uncle or aunt has died);
* If there are no grandparents, no uncles or aunts, and no descendants of uncles and aunts, to great-grandparents;
* If there are no grandparents, no uncles or aunts, no descendants of uncles and aunts, and no great-grandparents, to the brothers and sisters of the grandparents (and their descendants, if any of them has died)
The search keeps on going up the ancestral chain until a lineal ancestor is found who survives the intestate or who left a descendant who survives the intestate.
31
# Special Rules about Children and Other Descendants
What are the first steps in determining whether a child born out of wedlock inherits from the biological parents?
First, apply the rules for adoption and assisted conception.
32
# Special Rules about Children and Other Descendants
Who do adopted children inherit from? What if they were adopted as an adult?
1. They inherit from the adopting parent(s). Cease to be child of biological parents unless adopting parent is spouse of biological
2. Virginia law recognizes adult adoption for inheritance purposes
33
# Special Rules about Children and Other Descendants
How does a child conceived through assisted conception become the child of the parent for inheritance purposes?
The parent must give consent (1) in writing, (2) before conception, and (3) the child must be born during the consenting person's lifetime (or within 10 months after the consenting person's death).
34
# Special Rules about Children and Other Descendants
What are the special rules for children born out of wedlock if the other rules do not apply for the purposes of inheritance?
1. the child is always the child of her biological mother
2. the child is the child of the biological father if (1) the biological parents participated in a marriage ceremony before or after the birth, or (2) paternity is established by clear and convincing evidence.
35
# Special Rules about Children and Other Descendants
How does a biological father inherit from a child born out of wedlock?
the father must openly treat the child as his child and must not refuse to support the child.
36
# Special Rules about Children and Other Descendants
What are the filing requirements for a child born out of wedlock?
they must file an affidavit in the circuit court and ask for adjudication of parentage witin one year of the parent's death.
37
# Special Rules about Children and Other Descendants
When does the 1 year filing requirement for children born out of wedlock not apply? (3)
* Parentage has already been established through birth records made out by the deceased parent;
* Admission of parentage under oath; or
* a prior proceeding to determine parentage
38
# Jurisdiction and Venue
Who hears probate and intestacy matters?
Unlike most states, no probate courts. CIrcuit courts hear these matters. Many counties and cities delegate authority over uncontested probate matters to deputy clerks. Contested matters must go before a CC judge
39
# Jurisdiction and Venue
Venue is determined in the following order of priority:
1. The circuit court for the city or county where the decedent had a known place of residence
2. The circuit court for the city or country where there is real property owned or devised by the decedent
3. The circuit court for the city or county where the decedent dies or has an estate
40
# Probating a Will
Methods proponent can use to prove the validity of the will?
* Show that the will has a self proving affidavit (no need for witness);
* The proponent may present testimony from the witnesses to the will about:
* the authenticity of their signatures
* The other requirements for execution were met;
* The testator’s mental capacity and testamentary intent
41
How does proponent prove the validity of a holographic will?
Must produce 2 disinterested witnesses who testify that the will is completely in the handwriting of the testator.
42
# Executors and Administrators
VA rules for qualifying Executors and Administrators?
1. Must be at least 18 years old, legally competent, and must swear an oath before the clerk or judge that:
- She will faithfully perform the duties to the best of her judgment;
- If the will is in probate, that (to the best of her knowledge), the writingis the decedent’s
last true will; and
- If the decedent died intestate, that (to the best of her knowledge), the decedent left no will.
2. Must post a fiduciary bond equal in value to the decedent’s personal property and to any real property that the will authorizes for sale
3. May have to post security (or surety) on the bond (MUST if non-resident)
4. A non-resident individual who is appointed to serve as either executor or administrator must consent to service of process in Virginia and must post surity bond — even if security is waived by the will — unless there is a Virginia resident serving as co-executor or coadministrator
## Footnote
bond used to make parties whole if the executor/administrator fails to properly administer the estate.
43
what must an administrator or executor do when a minor child is a beneficiary of a will?
Petition to have a guardian appointed to manage the property passing to the child while they are still in infancy.
The guardian of the estate must post bond, unless will waives doing so [§ 64.2-504, -505]; provide a list of heirs at the time of qualification [§ 64.2-509]; file an inventory within four months of appointment [§ 64.2-1300]; and file an accounting within 16 months of qualification and annually thereafter [§ 64.2-1304].
44
Requirements for a contract to make a will?
same to make a regular contract:
1. Certain and definite terms
2. Consideration
3. proof thereof must be clear and convincing
45
where a contract deals with the transfer of real property, is must satisfy...
the statute of frauds
K must be in writing and signed by the person charged (unless two of three: payment, possession or improvements)
46
What is a transfer on death deed and what are its statutory requirements?
A deed that transfers property to a designated beneficiary upon the death of the transferor.
The statutory requirements:
1. The deed states that the property will transfer to a designated beneficiary upon death;
2. The deed must be recorded before the transferor's death in the circuit court where the property is located;
3. The deed is never revoked
47
When will a statement incorporated by reference be valid?
“If a will refers to a written statement or list to dispose
of items of tangible personal property not otherwise specifically bequeathed, the statement or list shall be given effect to the extent that it describes items of tangible personal property and their intended recipients with reasonable certainty and is signed by the testator although it does not satisfy the requirements for a will.”
If it deals with tangible personality, it need not be executed after the execution of the will.
48
Who do adopted children inherit from? What if they were adopted as an adult?
1. They inherit from the adopting parent(s). Cease to be child of biological parents unless adopting parent is spouse of biological
2. Virginia law recognizes adult adoption for inheritance purposes
49
What do you have if you are the only surviving heir and the decedent is dead?
a vested remainder
50
Does VA recognize equitable adoptions?
No, and thus under intestacy a child will not be able to take from a person with whom they shared a familial-like relationship unless the child was legally adopted by that person.
51
What does absolute divorce do to a tenancy by the entirety with the right of survivorship?
Revokes the death benefit and transforms the tenancy into tenancy in common, whereby the parties each have an undivided half-interest in the property.
52
Will a second Will revoke a prior will by virtue of its existance?
Only where the two Wills are inconsistent.
53
What is a car?
Tangible personal property
54
Timing of Will interpretation?
a will is construed to speak “as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will”
55
What effect does divorce have on the disposition of property in a Will?
If, after making a will, the testator is divorced from the bond of matrimony or his marriage is annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse.
The property will pass as if the spoouse pre-deceased the decedant, unless the Will provides otherwise. Anti-lapse applies if you marry your grandparent or lineal descendant lol
56
What is ademption by extinction?
When a testator makes a specific devise and that property no longer exists at execution, the gift is adeemed and the devisee receives nothing
57
Stock exception to ademption by extinction?
With respect to stocks, the beneficiary would receive any shares of another entity received as a result of a merger or sale of the original company
58
What must an executor/administrator do if a devise is to a minor?
Petition the court to appoint a guardian to manage the property passing to the minor. There is no presumption that the child’s parent or legal guardian would be the guardian for purposes of distributions from the estate.
59
What are the elements of an inter vivos gift?
1. Donative Capacity (mental capacity)
2. Present donative intent (conditional or unconditional)
2. Acceptance by the donee (presumed; express denial will overcome presumption)
3. Delivery (transfer of possession)
a. Actual (physical) or constructive (handing over control)
60
If an intestate decedent dies with no spouse or descendants, but a grandfather, a niece, and 2 aunts, who does his property go to?
the niece
61
Does a testator have the right to disinherit whomever they like? Exception?
Yes except the surviving spouse
62
May a will be revoked by another person other than the testator?
Yes, at the testator's direction and in their presence
63
Even if a document, or a writing added to a document, was not executed in compliance with the statutory will requirements, what can the proponent do (curative statute)?
Estabish by clear and convincing evidence that the document or writing was intended to be:
1. the decedent's Will
2. a partial or complete revocation of the Will
3. An addition to or alteration of the Will
4. A partial or complete revival of his formerly revoked will or of a formely revoked portion of the will
64
What can the curative statute not be used for? When is it available
1. it cannot be used to excuse the compliance with the signature requirement except where two persons accidentally sign the others will or signs the self-proving affidavit instead of the will
2. Only in circuit court filed within one year of the decedent’s death and in which all interested persons are made parties.
65
An attested will can have - but does not need to have — a self-proving affidavit (3 things and 1 impact):
1. an affidavit signed by testator and witnesses saying that the formal requirements for executing the Will were met;
2. Signed at the same time as the will and attached thereto;
3. notarized which removes the need for any witnesses in most cases
Creates a presumption that the will is valid and should be probated.
66
What must be established to prove testamentary capacity? Who has the burden to prove it?
If proponent proves that the will was validly executed, there is a presumption that the testator had testamentary capacity. The burden of production shifts to the challenger to overcome the presumption, but the burden of persuasion remains with the proponent.
67
Will the appointment of a guardian overcome the presumption of capacity?
No, the appointment is not prima facie evidence of a lack of capacity and it will overcome the presumption on its own
68
If the burden of proof to establish a lack of testamentary capacity, what then?
The burden of production shift back to the proponent who would then need to establish the elements of testamentary capacity.
69
What are the elements of testamentary capacity?
1. the testator understood the nature and extent of his property
2. the testator understood the natural objects of his bounty
3. the testator was capable of making an orderly plan of disposition
4. the testator understood the disposition made by the will
70
# Protections against disinheritance
Do these protections depend on whether the decedent died testate or not?
No
71
What is the "family allowance?"
it is a payment or set of payments made from the decedent's personal estate to provide for the maitenance of the surviving spouse and minor children during the administration of the estate.
72
What amount is the "family allowance?"
A reasonable allowance, paid in cash. There is a cap: no more than a lump sum of $24k or $2,000 a month. Any amount above that must be approved by the court
73
What priority is the "family allowance?"
second, behind administrative costs and expenses
74
Rules for insolvent estates regarding the family allowance?
Reasonable payments may not last longer than a year.
75
Does the allowance take away from inheritance?
No, it is in addition to
76
What is exempt property?
another protection that grants the surviving spouse $20K in net value from the following types of property of the estate:
* household furniture
* automobiles
* furnishings
* appliances
* personal effects
net value=the value minus the oustanding debt on the property. Comes out of the state before the beneficiaries are paid out under the will.
77
What does the exempt property protection do for surviving minor children when there is no surviving spouse?
the minor children are entitled to equal shares of the $20,000 in property that would have gone to the surviving spouse.
78
Order of priority for exempt property?
Third
79
What is the amount of the homestead allowance, who does it go to, and what is its priority?
20K, it goes to the surviving spouse unless there isn't one, then the minor children. Fourth in line
80
How does the homestead allowance work?
1. Any amount payed under the allowance are in lieu of the distributions payable under the will or intestacy
2. If the amount payable to the surviving spouse or the minor children under the will or the laws of intestacy is less than $20,000, the surviving spouse or the minor children get a homestead allowance that brings the total amount up to $20,000
the taker of the home allowance can either boost the family allowance + exempt property + inheritance to 20k if below OR choose between the homstead allowance and what they recieve under will or intestacy if what they receive is more than 20K (higher priority for the allowance than creditor claims)
81
Assuming no joint tenancy, surviving spouse has right to continue living in principal residence until:
1. there is a final order
2. the parties reach an agreement
82
What are the two major differences between the old rules and the new rules for elective share?
1. the old rules defined the augmented estate by looking solely at the decedent's property and the new rules look both at the property of the decedent and that of the surviving spouse
2. The new rules define the elective share as one half of the marital protperty portion of the augmented estate, instead of just a simple fraction.
83
Same as old rules: add the net probate estate with certain non-probate transfers/spouse property and you get the augmented estate. How is the net probate estate defined?
Net probate estate = the decedent's personal estate, minus the family allowance, exempt property, the homestead allowance, funeral expenses, administrative expenses, and enforceable claims.
Not reduced by estate taxes
84
What gets added to the net probate estate to make the augmented estate?
1. any non-probate transfers from the decedent to the surviving spouse
2. Surviving spouses property owned at decedent's death
3. certain transfers to third parties
85
Added to net probate: what do the transfers to third parties include?
1. Any non-probate transfers to third-parties upon death;
2. Any propoperty transferred by the decedent in which he retained a power over the property for his benefit (e.g., possession, enjoyment, income)
3. any property transferred during the marriage and within 2 years of the decedent's death
However, any property that the decedent transferred to third parties and received full consideration for or if the surviving spouse consented to, is not included in the augmented estate.
86
Added to net probate: what does the surviving spouses property include?
1. their own property
2. property they hold as joint tenant with a right of survivorship
3. property that would be added to the surviving spouse's own augmented estate as a non-probate transfer if the surviving spouse died instead; and
4. any property that passed to the surviving spouse by reason of the decedent's death, other than the family allowance, exempt property, and the homestead allowance.
87
What is the surviving spouses elective share?
One half of the marital portion of the augmented estate.
## Footnote
marital portion is a portion of the augmented estate. You get half of that portion.
88
Order of satisfaction for the elective share?
1. Out of the marital-property portion of the surviving spouse’s property;
2. Out of the full value of whatever property passes from the decedent to the surviving spouse through probate or non-probate transfers;
3. On a pro-rata basis, out of the probate and non-probate transfers to third parties
88
How is the marital portion calculated?
* Starts at 3% and gradually increases to 100% as the length of the marriage increases
* The percentage is determined as follows:
1. <1Y = 3%
2. > 1Y but <2Y = 6%
3. increase by 6% until 10Y but less than 11Y (60%)
4. Then increase by 8% until 15Y (100%)
89
When must the surviving spouse elect to exercise their right?
Within 6 months from the time of the admission of the Will to probate.
90
Procedure for claiming the elective share?
Within 6 months of the Will being admitted to probate, the surviving spouse must either make the claim in person before the court having jurisdiction over the estate, or in writing admitted to the record.
Within six months after that, the surviving spouse must file a complaint to determine the elective share.
The surviving spouse can withdraw the election at any time before the court enters a final determination of the elective-share amount.
91
What is in addition to the elective share?
the homestead allowance, the family allowance, and the exempt property
92
When must the claims to the homestead allowance, exempt property, and the family allowance be asserted?
Within 1 year of the death of the testator
93
Effect of surviving spouse willfully deserting or abandoning?
If the surviving spouse willfully abandons or deserts the decedent and reamins that way until the decedent's death, they forfeit any right to the family allowance, the homestead allowance, the exempt property and any intestate share (even if they remain married).
The abandoned spouse does not lose these rights
94
What is common law marriage?
A prolonged cohabitation with the intent to be a married couple and holding yourselves out as a married couple.
95
Does VA recognize common-law marriage?
Not within the state
96
Is a marriage entered into prior to the dissolution of a previous marriage void or voidable?
Void
97
What happens with a joint account with right of survivorship if a will tries to devise the account to someone other than the joint owner?
Nothing. the account policy controls
98
What do you call a will that adds property to an existing trust?
Pour-over trust
99
How do you create a pour-over trust?
Not the same requirements as a trust, but the Will must identify the trust, and the trust must be in writing. The trust must be created at the same time or before the execution of the Will.
100
How is a trust created?
1. the settlor has the capacity to make a trust
2. the settlor intends to create a trust
3. the trust has a definite beneficiary (unless a charitable or honorary)
4. The trustee has duties
5. the trustee and beneficiary are not the same person
101
Can a pour over trust be revocable and unfunded at the time of creation?
Yes
102
May a creditor reach a trust beneficiaries interest?
Yes, unless there is a spendthrift provision, but not the corpus of the trust if it is discretionary
103
Will a co-trustee be liable for a co-trustee’s breach of trust?
Only if they fail to prevent a significant breach or compel the breacher redress the breach. Otherwise, so long as they do not join in the breach, they will not be liable.
104
Is a trustee personally liable on a contract properly entered into in the trustee’s fiduciary capacity?
no, if done in the course of administering the trust and they disclosed in the contract their fiduciary capacity. BUT, they would then bind the trust and the other party can recover from the trust assets.
105
Does a trust amendment to a pour-over trust make after the execution of the will invalidate the trust?
No
106
What supersedes what as it relates to the real property, a transfer on death deed or a will?
The transfer on death deed
107
What if a transfer on death deed is to a wife and Will to children, and the wife and decedent divorce before decedent’s death, and the deed says nothing of divorce?
The divorce revokes the transfer.
108
What is the dead man’s statute? In other words, what are to two key things about it:
1. In an action by or against a party that cannot testify (or by or against that person's committee, personal respresentative, heir, trustee, or other representative) no judgment or decree shall be issued in favor of the adverse party upon their uncorroborated testimony.
2. It gets rid of the hearsay rule for the party that cannot testify. they can introduce all entries, memoranda, and declarations by that party made (1) while capable of testifying, and (2) relevant to the matter in issue.
109
What is the presumption regarding a will that was in the possession of the decedent and which cannot be located at his death? How is it overcome? Does this permit a photocopy to be established as a will?
1. presumed that he destoyed it with the intent of revoking it
2. clear and convcing evidence of general statements that the decedent made about his testamentary intent, if those statements confirm the dispositive scheme in the decedent's purported will (dead man's statute)
3. yes
110
Difference between personal representative and executor?
Its the same thing. The executor is someone named in the will to be the personal representative. the personal representative is just someone that administers the Will.
administrator is person appointed in intestate proceedings or testate where no executor is named.
111
Who will serve as an administrator? different based on testate or intestate. Also what is the technical title for testate administrator?
Decedent died testate, but the will does not name an executor or the named executor is unable or unwilling to serve, the court appoints an administrator:
* Known as the administrator c.t.a. — which means “cum testamento annexo,” or “with will attached;
* Usually the administrator c.t.a. will be a residual beneficiary or a substantial beneficiary.
Decedent died intestate, the court appoints an administrator from among the decedent’s heirs
112
Once appointed, how can an administrator or executor leave the position?
they can voluntary leave or be involuntarily removed
113
When may a court remove an executor/administrator?
Whenever it appears proper to the court. Abuse of discretion standard. Friction between beneficiaries is insufficient. Removal or disqualification must benefit the estate. Examples of sufficient grounds for removal are fraud, gross negligence, or some other breach of duty.
114
Once removed or having left, the court must appoint a replacement. What are the replacements called in intestate v. testate proceedings?
If the prior person was an administrator managing an intestate estate, the new administrator is known as the administrator d.b.n. (for administrator “de bonis non” —of the goods or property not administered).
If the prior person was an executor or an administrator c.t.a., the new person is known as the administrator c.t.a. d.b.n.
115
When must a personal representative file an inventory?
within 4 months of being appointed
116
What must the inventory include?
All of the personal estate under his control and supervision, the decedent's interests in any multi-party account in any financial institution, all real estate over which he has the power of sale, and any other real estate that is an asset of the decedent's estate where or not it is situated in VA.
117
Does an income beneficiary of a trust forfeit their right to income accrued and undistributed at the time of their death?
No, but they no longer have an interest in the corpus, assuming someone else has a vested remainder.
118
Definition of undue influence and standard for proving?
The person seeking to challenge the will must prove by clear and convincing evidence that measure were taken with respect to the testator, undeer the surrounding circumstances, the testator could not resist, that controlled the testator's volition, and that induced the testator to do what he otherwise would not have done.
119
How do you create a presumption of undue influence that shift the burden of product to the proponent? Show:
1. the testator was in a state of enfeebled mind (e.g., due to age or injury) when the will was executed;
2. the influencer was in a position of confidence or dependence; and
3. the the testator previously expressed an intention to make a contrary disposition of his property.
120
A court can invalidate a will or a codocil procured through fraud. Requirements?
1. the wrongdoer misrepresented a mmaterial fact to the testator; and
2. the wrongdoer intended to decieve the testator in order to influence the testator to make a disposition of her property that she otherwise would not have made
121
When is there a presumption of fraud? Shift of burden?
When the drafter is a major beneficiary under the will (or the spouse of one). Presumption shift the burden for producing contrary evidence, but not the burden of persuasion, to the proponent of ht ewill.
122
Federal estate tax?
Applies at 13.6 million in 2024
