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Wills & Estates Flashcards

1
Q

When do intestate succession rules apply?

A
  1. Decedent left NO WILL,
  2. Decedent’s will is DENIED PROBATE, or
  3. Decedent left a will but the will DOES NOT MAKE A COMPLETE DISPOSITION of the estate
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2
Q

What’s the intestate share of surviving spouse when decedent NOT SURVIVED BY DESCENDENT’S?

A

Entire estate

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3
Q

What’s the intestate share of surviving spouse when SURVIVED BY DESCENDANTS AND ALL ARE DESCENDANTS OF SURVIVING SPOUSE?

A

SPOUSE INHERITS ENTIRE ESTATE.

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4
Q

What’s the intestate share of surviving spouse when DECEDENT SURVIVED BY DESCENDANTS AND AT LEAST ONE WASN’T SURVIVING SPOUSE’S DESCENDANT?

A

SS gets 1/3rd, decedent’s descendants get 2/3rd

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5
Q

Effect of Spouse’s DESERTION or ABANDONMENT

A

If desertion continues UNTIL THE DESERTED SPOUSE’S DEATH, deserting spouse is barred from all statutory rights.

Deserting spouse will NOT be APPOINTED ADMINISTRATOR if a beneficiary files an objection

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6
Q

What’s intestate share of DESCENDANTS (w/ and w/o SS)?

A

W/ SS, they take share of the estate that didn’t pass to SS (or full estate w/ no SS), and EACH TAKES PER CAPITA SHARE WITH REPRESENTATION

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7
Q

What does WITH REPRESENTATION mean (re descendants’ rights to estate)?

A

Each descendant takes per capita share at 1st generational level, and the share of EACH DECEASED PERSON AT THAT LEVEL PASSES TO HIS ISSUE BY RIGHT OF REPRESENTATION

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8
Q

What happens if no SS or descendants?

A

Estate passes to decedent’s PARENTS or SURVIVING PARENT.

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9
Q

What happens when decedent dies w/o SS or descendants but parent had WILFULLY DESERTED minor or incapacitated child?

A

If child is MINOR, and DESERTION CONTINUES UNTIL CHILD’S DEATH, parent is DQ’d from inheriting

Also, parent will not be appointed administrator of child’s estate (if beneficiary files objection)

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10
Q

What happens if decedent has no SS, descendants or parents?

A

Decedent’s brothers/sisters

Deceased siblings take by REPRESENTATION

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11
Q

Omitted Child Rule - When deceased parent executed will prior to child being born/adopted (What’s rule when there are no other children, and If there are other children)

A

No other children: child ENTITLED TO SAME SHARE THEY’D RECEIVE UNDER VA INTESTACY LAW

If there are other children: they’re entitled to the lesser of:

  1. The largest bequest made to any of the other kids, or
  2. Share under intestacy law
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12
Q

What happens if Omitted Child dies before reaching 18?

A

Property would revert to person to whom it was given by the will

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13
Q

Omitted Child Rule - When deceased parent executed will after 1 or more children born/adopted, then another child born/adopted. What is the omitted child entitled to?

A

Subsequent child entitled to SMALLER of

  1. same share as other children named in the will, or
  2. same share they’d receive according to VA intestate law
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14
Q

What happens if decedent not survived by PARENTS or DESCENDANTS OF PARENTS?

A

1/2 estate to MATERNAL GRANDPARENTS (or their descendants, who take by rep’n)

1/2 to PATERNAL GRANDPARENTS (or descendants by rep’n)

IF NO SURVIVING PATERNAL OR MATERNAL, GOES TO THE OTHER IN FULL

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15
Q

Does VA have Laughing Heir statute?

A

No (laughing heir would mean more remote relatives are cut off from inheritance)

No matter how remotely related to the intestate, person can qualify as an heir

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16
Q

What happens if married decedent not survived by any kindred (and spouse was already dead)?

A

estate passes to KINDRED OF THE DECEASED SPOUSE

Otherwise, goes to the Commonwealth

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17
Q

Inheritance Rights of ADOPTED CHILD

A

inherit from ADOPTING PARENTS as though a natural child

no inheritance rights as to natural parents (except when adopted by spouse of biological parent)

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18
Q

Inheritance Rights of Stepchildren and Foster Children

A

No inheritance rights UNLESS ADOPTED

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19
Q

Inheritance Rights of NONMARITAL CHILD

A

Has full inheritance rights from MOTHER AND MOTHER’S KIN

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20
Q

Nonmarital Child – When is natural father considered to be the parent?

A
  1. Father married mother before or after birth (even if marriage is void or voidable)
  2. It’s established by CLEAR AND CONVINCING E that (one of the following):
    a. Man OPENLY COHABITATED w/ mother during the pregnancy
    b. consented to be named on the child’s BIRTH CERTIFICATE
    c. allowed the child to use his SURNAME
    d. man claimed child on any DOCUMENT FILED WITH GOV’T (e.g. TAX RETURN)
    e. adjudged the father in PATERNITY SUIT and ordered to pay CHILD SUPPORT
    f. ADMITTED paternity in court or in writing under oath; or
    g. GENETIC TESTS or other medical/anthropological E establish man is child’s father
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21
Q

How can child BORN OUT OF WEDLOCK establish paternity?

A

Bring claim in court WITHIN 1 YEAR OF DAD’S DEATH w/

  1. AFFIDAVIT alleging such parenthood has been filed in clerk’s office of circuit ct w/ jurisdiction where in property affected by claim is located, and
  2. ACTION SEEKING ADJUDICATION of parenthood is filed in circuit court.
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22
Q

What’s the Simultaneous Death rule?

A

Person must survive intestate decedent by 120 HOURS to take as an heir

Otherwise, treated as having PREDECEASED decedent

Survival requires C&C E

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23
Q

Effect of disclaiming an interest

A

Beneficiary or heir that disclaims interest that would otherwise pass to him from the estate –> results in disclaimed interest PASSING AS THOUGH DISCLAIMING PARTY DIED IMMEDIATELY BEFORE decedent

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24
Q

Elements of VALID DISCLAIMER

A

Must (1) be IN WRITING or other record;

  1. DECLARE THE DISCLAIMER
  2. DESCRIBE THE INTEREST being disclaimed
  3. be SIGNED
  4. be DELIVERED
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25
Q

What can/cannot disclaimer be used for?

A

CAN be used to defeat CREDITOR’S CLAIMS and can’t be considered FRAUDULENT TRANSFER

CANNOT DEFEAT FED’L TAX LIEN

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26
Q

SLAYER Statute

A

Person CONVICTED of (or determined by PREPONDERANCE OF E to have committed) MURDER or VOLUNTARY MANSLAUGHTER forfeits all interest in victim’s estate

Slayer treated as though they predeceased victim

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27
Q

Req’t of VALID WILL

A
  1. Must be 18 and SOUND MIND
  2. VALID EXECUTION
  3. Testamentary INTENT - must PRESENTLY intend that instrument will operate as will. Intent must be ascertained from face of will.
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28
Q

EXECUTION OF WILL (Gen’l)

A

Must be SIGNED BY TESTATOR (or by a person in their presence and by their direction) and ATTESTED BY 2 W’s

Testator must sign in the presence of TWO COMPETENT W’s who are PRESENT AT THE SAME TIME.

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29
Q

Execution of Will (Signature of W’s)

A

W’s must sign IN TESTATOR’S PRESENCE (but not necessarily each other’s)

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30
Q

What counts as valid testator signature?

A

Any mark testator makes WITH INTENT THAT IT OPERATE AS HER MARK/SIGNATURE

Testator may be assisted in signing

Proxy signature is OKAY

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31
Q

Execution of Will: Does it matter who signs in what order?

A

No, as long as signings occurred as part of SINGLE, CONTINUOUS TRANSX

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32
Q

What is TESTAMENTARY INTENT?

A

Requires that will show testator PRESENTLY INTENDS FOR THE DOCUMENT TO BE HER LAST WILL AND TESTAMENT on its face.

Entails reference to property, persons and death and a desire that the document itself effect the transfer of property to persons at death

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33
Q

Execution of Will: Must Testator sign in presence of both W’s?

A

Yes, must be in JOINT PRESENCE of Ws

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34
Q

Execution of Will: Must W’s sign at the end of a will?

A

No

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35
Q

Execution of Will: Must W’s sign in testator’s presence?

A

Yes

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36
Q

Execution of Will: Must W’s sign in each other’s presence?

A

No

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37
Q

Execution of Will: What is Conscious Presence Test?

A

For purposes of W’ing, it’s enough that W’s are IN TESTATOR’S PRESENCE and SHE IS AWARE OF WHERE THEY ARE AND WHAT THEY’RE DOING, and she COULD SEE THEM BY SLIGHT PHYSICAL EXERTION

Means it’s not necessary for testator to see the W’s when they sign the will.

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38
Q

Does VA have INTERESTED WITNESS RULE?

A

No, person is NOT INCOMPETENT to testify solely b/c of an interest in the will or estate.

Executor can also be attesting W.

39
Q

What is a CODICIL?

A

a SUPPLEMENT to a will that ALTERS, AMENDS, OR MODIFIES A WILL

40
Q

Who can sue attorney for negligence related to a will?

A

Only the client who contracted for attorney’s services.

Means beneficiaries of a negligently prepared will have no cause of action.

41
Q

What effect does Virginia’s dispensing power statute have?

A

Means court may dispense with formal requirements in certain cases.

42
Q

What does VA’s dispensing power statute do?

A

Even though an instrument wasn’t executed in full compliance w/ will execution statute, it can nonetheless be treated as being validly executed if the proponent of the instrument establishes by CLEAR AND CONVINCING EVIDENCE that the decedent INTENDED THE DOCUMENT TO CONSTITUTE HIS WILL.

43
Q

Procedural requirement of VA dispensing statute - Who must be made parties to an action seeking to invoke the statute?

A

All interested persons must be made parties to a proceeding seeking to invoke the statute

44
Q

VA Dispensing Statute: Can it be used to excuse any req’t for the testator’s signature?

A

NO, except:

  1. When 2 people MISTAKENLY SIGNED EACH OTHER’S WILLS, or
  2. Testator signs the SELF-PROVING AFFIDAVIT, but NOT THE WILL ITSELF.
45
Q

When must a claim under VA dispensing statute be brought?

A

Within 1 year after testator’s death

46
Q

HOLOGRAPHIC WILLS - Gen’l Req’ts

A
  1. Must be ENTIRELY IN TESTATOR’S HANDWRITING,

2. SIGNED BY TESTATOR

47
Q

HOLOGRAPHIC WILL: Must entire will be in handwriting?

A

No, presence of typewritten text doesn’t affect validity of holographic will IF TYPEWRITTEN PORTION CAN BE DISREGARDED W/O VIOLATING TESTATOR’S INTENT.

BUT, if handwritten portions are interwoven w/ or may only be understood by reference to the typewritten material, will is INVALID.

48
Q

HOLOGRAPHIC WILL: Who can make one?

A

Testator must be

  1. 18, and
  2. have requisite TESTAMENTARY INTENT AND CAPACITY
49
Q

What is the effect of a testator destroying a will?

A

Makes will VOID AND OF NO EFFECT

50
Q

Requirements for physical revocation of a will or codicil

A
  1. Must be DESTROYED (ripped, torn, burned, etc.)

2. With PRESENT INTENT to revoke

51
Q

Can a valid holographic codicil revive a destroyed will?

A

Yes

52
Q

If a testator destroyed a prior validly executed holographic will and then tries to revive it with a holographic codicil that’s not witnessed by 2 disinterested parties, can it be valid?

A

Yes, b/c the two witnesses to the original holographic will could prove the original will is in testator’s handwriting.

53
Q

What happens to named beneficiary’s interest if they die before testator (is NOT a GRANDPARENT OR DESCENDANT OF GRANDPARENT)?

A

The gift lapses. That person’s share will then be distributed through intestacy laws.

Unless a contrary intention appears in the will or trust instrument

54
Q

What happens to named beneficiary’s interest if they die before testator (and IS a GRANDPARENT OR DESCENDANT OF GRANDPARENT)?

A

Unless a contrary intention appears in the will or trust,

portion of the estate that deceased beneficiary was to take shall be divided into as many equal shares as there are

  1. SURVIVING DESCENDANTS in the CLOSEST DEGREE OF KINSHIP to the deceased beneficiary, and
  2. deceased descendants, if any, in the same degree of kinship to the deceased beneficiary who left descendants surviving at the time of the testator’s death.

1 share goes to EACH SURVIVING DESCENDANT and 1 share PER STIRPES to DESCENDANTS OF DECEASED DESCENDANTS

55
Q

What are the requirements for parties to contract for a will?

A

Must be CLEAR AND SATISFACTORY PROOF of a K (in the language of the will, from extrinsic E, or by clear implication from surrounding circumstances).

56
Q

For K not to revoke or amend wills, what must be shown?

A

EXPLICIT AGREEMENT

Will NOT be inferred simply from execution of reciprocal wills

57
Q

What methods can testator use to revoke a will?

A
  1. By physical act (destruction + intent to revoke)
  2. Expressly revoke through new will
  3. Make a new will that contradicts old one
58
Q

Which level of courts has jurisdiction over probate of wills?

A

Circuit Courts

59
Q

In what jurisdiction should a will be probated?

A

In the circuit court in the county/city where decedent has KNOWN PLACE OF RESIDENCE.

If no residence, then place where ANY REAL ESTATE lies that’s devised or owned.

If no real estate, then place where he DIES or has ESTATE (personal property)

60
Q

For jurisdiction purposes, which jurisdiction should handle probate of will when decedent was in nursing home?

A

Rebuttably presumed to be legal residence prior to going to nursing home

61
Q

Which has priority between a prior written agreement concerning property that’s later left to someone else in a subsequent will?

A

The will, but there then could be K action against estate.

62
Q

Meaning of PROBATE?

A

Proceeding in which an instrument is judicially established as the duly executed last will of the decedent, or, if no will, proceeding in which decedent’s heirs are judicially determined.

63
Q

If assets owned at death aren’t sufficient to pay all of a testator’s debts & satisfy all gifts made in the will, what’s the order of source of payments?

A
  1. Personal property passing by INTESTACY
  2. Personal property in RESIDUARY ESTATE
  3. GENERAL LEGACIES
  4. SPECIFIC and DEMONSTRATIVE BEQUESTS of personal property
  5. If personal property is exhausted, REAL PROPERTY ABATES IN SAME ORDER

(IRL, BITCH)

64
Q

If assets in the estate aren’t sufficient to pay all debts/claims against the estate, what order are creditors’ claims paid?

A
  1. EXPENSES of administration
  2. FAMILY AND HOMESTEAD ALLOWANCES
  3. FUNERAL EXPENSES
  4. debts and taxes W/ PREFERENCE UNDER FEDERAL LAW
  5. MEDICAL EXPENSES
  6. debts and taxes TO VIRGINIA
  7. debts incurred in FIDUCIARY CAPACITY
  8. CHILD SUPPORT
  9. debts and taxes TO LOCALITIES
  10. All OTHER claims
65
Q

Difference between executor and administrator

A

Executor: NAMED IN A WILL

Administrator: APPOINTED BY COURT

66
Q

Requirements to serve as executor

A
  1. Over 18
  2. Legally COMPETENT

The court or clerk of the court must find their SUITABLE

67
Q

What are the requirements for a nonresident to serve as a personal rep of decedent’s estate?

A
  1. appoint a VA RESIDENT or Clerk of the Court to be resident AGENT FOR SERVICE OF PROCESS
  2. Pay BOND
68
Q

What is a GIFT IN PRAESENTI W/ A POSTPONED RIGHT OF ENJOYMENT?

A

Donor has PRESENT DONATIVE INTENT, but may RESERVE THE RIGHT OF POSSESSION.

Can be valid gift.

69
Q

Does inter vivos gift trump will?

A

Yes

70
Q

What is a Transfer on Death Deed?

A

a NON-PROBATE ASSET that TRANSFERS TITLE IMMEDIATELY UPON GRANTOR’S DEATH

71
Q

Can a person incorporate by reference a list that details how they want to devise their personal property? If so, what are the requirements?

A

Yes

List must be SPECIFICALLY DESCRIBED IN THE WILL

LIST MUST BE SIGNED

72
Q

What are the requirements of a transfer on death deed?

A
  1. Deed states that transfer is to occur at transferor’s death,
  2. deed was RECORDED before transferor’s death in circuit court where property located
  3. Deed was NEVER REVOKED
73
Q

What is appropriate legal action for a party that may be exposed to multiple liability through existence of claims to the same property or fund held by him?

A

INTERPLEADER

74
Q

What may the court do when someone files for INTERPLEADER?

A

Enter order restraining all claimants from instituting any proceeding affecting the property

75
Q

What are requirements of a GIFT CAUSA MORTIS?

A

Gift made in CONTEMPLATION OF IMMINENT DEATH.

(1) DONATIVE INTENT
(2) of PERSONAL PROPERTY
(3) made while donor under APPREHENSION OF IMMINENT DEATH, and
(4) DELIVERY and ACCEPTANCE

76
Q

Can someone have 2 valid wills at same time?

A

Yes. A later will only revoke the parts of an earlier will that it expressly revokes or contradicts.

77
Q

What is a TRANSFER ON DEATH deed?

A

Deed transferring property upon O’s death.

Deed must:

  1. STATE that transfer to designated beneficiary was to occur AT TRANSFEROR’S DEATH.
  2. be RECORDED before transferor’s death in the CIRCUIT COURT where property’s located
  3. NOT BE REVOKED.
78
Q

When does the anti-lapse statute apply (i.e., when does someone named in a will, but predeceases the testator, take property (by their descendants))?

A

When named person LEAVES A DESCENDANT.

79
Q

What’s the effect of a divorce on a testator’s will when they left property to their spouse (and then later got divorced)?

A

The bequest is REVOKED and ex-spouse treated as though they PREDECEASED testator. Means gift lapses.

80
Q

What elements are required for a K TO MAKE A WILL (i.e., a mother promises her son she’ll leave him the house)?

A

Governed by same principles as K. Thus,

  1. CERTAIN and DEFINITE as to its terms.
  2. valuable CDN
  3. SIGNED by property O
  4. in WRITING
  5. proven by CLEAR AND CONVINCING EVIDENCE
81
Q

Can a non-resident qualify and act as a trustee under a will in probate proceedings?

A

Yes, if they post a bond and consent to service of process in VA.

82
Q

What does the law prefer re accounts of joint ownership?

A

Ownership IN COMMON rather than W/ RIGHT OF SURVIVORSHIP

83
Q

How can parties create a RIGHT OF SURVIVORSHIP w/ a joint account?

A

ALL ACCOUNT OWNERS create the account AT THE SAME TIME and in the SAME INSTRUMENT.

84
Q

What constitutes ACCEPTANCE of an I/V gift?

A

Acceptance can include SILENCE. Short of an express rejection, almost ANY ACTION constitutes valid acceptance.

85
Q

How does VA’s DEAD MAN’S STATUTE work?

A

Allows interested witness to offer testimony as to statements made by decedent if there’s CORROBORATING EVIDENCE.

86
Q

Can a copy of a will be admitted for probate if the original can’t be found?

A

Yes, if there is SUFFICIENT EVIDENCE to establish that the copy represents testator’s last will and testament.

87
Q

What inference is raised if will can’t be found?

A

That testator revoked will. BUT, can be rebutted w/ C&C E.

88
Q

What does VA’s ANTI-LAPSE STATUTE provide?

A

If a will beneficiary dies before the testator, the gift lapses unless he’s a GRANDPARENT OR LINEAL DESCENDANT OF A GRANDPARENT.

89
Q

What are the requirements of a K to make a will (i.e., mom agrees w/ her son that she’ll devise her house to him in her will)?

A

Must be:

  1. IN WRITING
  2. CERTAIN and DEFINITE TERMS
  3. based on valuable CONSIDERATION
  4. proven by CLEAR & CONVINCING EVIDENCE

If for REAL ESTATE, must be SIGNED BY DECEDENT

90
Q

What happens if executor named in will refuses to accept, fails to give bond, dies, or is removed from office?

A

Court or clerk may name EXECUTOR WITH WILL ANNEXED

91
Q

What must be included in the inventory of personal assets?

A
  1. All PERSONAL ESTATE under fiduciary’s supervision,
  2. DECEDENT’S interest in any MULTIPLE PARTY BANK ACCOUNTS
  3. all REAL ESTATE over which fiduciary has power of sale
  4. any other REAL ESTATE
92
Q

What are the elements of Testamentary Capacity?

A

AT TIME OF EXECUTION, T’or was capable of:

  1. RECOLLECTING HIS PROPERTY
  2. KNEW THE BUSINESS ABOUT WHICH HE WAS ENGAGED and HOW WE WISHED TO DISPOSE OF HIS PROPERTY
93
Q

What is UNDUE INFLUENCE?

A

Measures taken w/ respect to the T’or that, under surrounding circumstances, testator COULD NOT RESIST, that CONTROLLED HIS VOLITION, and that INDUCED TT’OR to do what he otherwise would not have.

94
Q

What must be included in a decedent’s PERSONAL ESTATE?

A
  1. Decedent’s interest in ANY MULTIPLE PARTY ACCOUNTS IN ANY FIN’L INSTITUTION.
  2. ALL REAL ESTATE over which he had the POWER OF SALE
  3. all PERSONAL ESTATE

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