Wills and Trusts Flashcards
(23 cards)
What does each owner hold in a joint tenancy with right of survivorship?
Each oner holds an equal undivided interest in the property with a right of survivorship . When one joint tenant dies, the property is feed from their interest; the survivor retains and undivided right in the property. which is no longer subject to the interest of the deceased co-tenant.
What is the 120-Hour Rule?
In the Commonwealth, a person must survive a decedent by 120 hours in order to take as an heir.
What is Per Stirpes Distribution? (However VA uses per capita with representation method)
One share of the estate passes to each child of the decedent. If the child is deceased that childs share passes to their descendants by representation. Under the class per stirpes distribution, the division is always made at the child level regardless of whether there are any living takers at that level.
What is the Per Capita with representation method (which is used in VA)?
Equal shares of the estate passes to each child of the decedent at the first generation level with living takers.
What is a gift?
A gift is a voluntary transfer of property by one to another without any consideration or compensation. There must be donative intent, delivery of the subject matter of the gift, and acceptance of the gift by the donee. Must establish donative intent and delivery of the subject of the gift by clear and convincing evidence. Delivery may be actual constructive or symbolic.
5 Elements of a Inter Vivos Trust
A trust is an arrangement in which a trustee holds legal title to trust assets for the benefit of the beneficiaries who hold equitable title. (1) settle with capacity to convey title to the trustee (2) an intention to create a trust (3) one or more definite beneficiaries (4) a trustee with active duties to perform (5) the same person is not the sole trustee and sole beneficiary
Trust Termination
A trust will terminate automatically at the expiration of the trust term specified in the instrument or when all of the purposes of the trust have been accomplished.
Non Probate Assets
A will cannot make a gift of non probate assets
Elements of a valid will
- testamentary capacity (a. at least 18 years of age; b. sound mind)
- testamentary intent (if they intend that the particular instrument operate as their will)
Attested Will Requirements
(1) Signed by the testator (2) in the joint presecene of at least two attesting witnesses (3) who sign the will in the testators present (although not necessarily in each others presence)
Virginia Clear and Convincing Evidence of Intent
Even if not executed in full compliance with the will execution statute, the instrument can be treated as having been validly executed if the proponent of the instrument establish by clean and convincing evidence that the decedent intended the document to constitute as their will.
Holographic Will Requirements
1) must be in testators writing (2) signature (no requirement for date)
How can a revocation be effective?
A will can be revoked in whole or in part by cutting, burning, tearing, canceling, obliterating, or destroying the will with the intent, and for the purpose of revocation.
Republication by Codicil
A testator may restore the testamentary effectiveness of a revoked will by re executing the will in compliance with the statutory formalities. Alternatively the valid execution of a codicil that makes express reference to the revoked will causes the will to be revived under the doctrine of republication by codicil
Anti Lapse Statute
Virginias anti lapse statute saves the gift if the predeceasing beneficiary was a grandparents or a lineal descendant of a grandparent of the testator who also left descendant who survived the testator
What is revocation by implication?
When a secondary instrument that does not contain any express language of revocation of an earlier will, the two instruments are read together. The second instrument is treated as a codicil to the will, and the second instrument revokes the first to the extent of any inconsistent provisions.
Revocation by Divorce
If a person has made a testamentary disposition in favor of a spouse, and the couple have divorces, the disposition in favor of the spouse is revoked by operation of law. The former spouse will be treated as predeceasing the testator.
Cy Pres Doctrine
If through the passage of time or changed circumstances the named beneficiary of a charitable trust goes out of existence, under the doctrine of cy press, the court may redirect the trust to a purpose as near as possible to the charitable endeavor initially contemplated by the settlor.
Where should estates be administrated?
Circuit courts have jurisdiction over all probate matters. Venue lies in the county or city in which the decedent resided, or (if none) the county or city in which the decedent owned real property or (if none) the county or city in which the decedent owned personal property. If the decedent became a patient in a nursing home or similar institution, the place of legal residence is presumptively the same as it was before moving into the home.
Can a non-resident qualify as an executrix of an estate?
A nonresident individual may serve as personal representative of a decedent’s estate but must appoint a resident agent for service of process or agree to allow the clerk of the court to be served on their behalf. A non resident personal representative must post bond with surety unless they are serving with a resident personal representative, or the requirement is waived by the court.
Attested will requirements:
1) will must be signed by testator (2) testator must sign will in witnesses joint presence (3) the will must be witnessed by at least two attesting witnesses (4) each of the attesting witnesses must sign in the testators presence but not necessarily in each others presence
Does Virginia allow self proving affidavit for wills?
Yes. If the will is self proved, the will is probated on the strength of the affidavit and there is no need to call the attesting witnesses.
What happens if there is no self proving affidavit in the will?
One witness needs to testify.
