Wills & Estates

Question 1

Mutual Will Contracts

Answer 1

Two persons may enter into a binding contract not to revoke or amend their wills, but such an agreement must be explicit and will not be inferred solely from reciprocal wills. Proof of such a contract must be “clear and satisfactory.”

Question 2

Enforceability of Oral Contracts

Answer 2

A contract regarding the disposition of specific property can be enforceable if there is clear and convincing evidence of:
- Offer
- Acceptance
- Consideration
- Essential terms

Question 3

What is required when seeking to enforce an oral contract against a deceased person?

Answer 3

Corroboration - the claimant’s testimony requires corroboration from an independent source.

Question 4

Effect of a Contract on Will Changes

Answer 4

A valid contract does not prevent a testator from changing their will; instead, it provides a basis for a constructive trust claim against the estate or any recipients of the disputed property.

Question 5

Requirements for a Testamentary Instrument

Answer 5

• Capacity – The testator must have had the legal capacity to make a will.
• Testamentary Intent – The document must reference property, persons, and death, and demonstrate intent for the document itself to effect a transfer of property at death

Question 6

Extrinsic Evidence of Testamentary Intent

Answer 6

Court has been inconsistent on whether extrinsic evidence is admissible to establish testamentary intent

Question 7

Holographic Will Validity

Answer 7

A holographic will is valid in Virginia if:

• It is wholly in the testator’s handwriting.
• It is signed by the testator.
• It is proved by at least two disinterested witnesses who are familiar with the testator’s handwriting.
• The testator must be at least 18 years old and possess testamentary intent and capacity.
• The signature must be manifestly intended as the testator’s signature, and can include a first name, initials, or even a mark if that is the testator’s ordinary way of signing their name.

Question 8

Testate

Answer 8

Describes one who dies leaving a will.

Question 9

Intestate

Answer 9

Describes one who dies without a will.

Question 10

Issue

Answer 10

All of a person’s descendants of all generations (e.g., child, grandchild, great-grandchild, etc.)

Question 11

Devise

Answer 11

A testamentary disposition of real or personal property.

Question 12

Devisee

Answer 12

Any person designated in a will to receive a disposition of real or personal property.

Question 13

Heirs

Answer 13

Those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent.

Question 14

Distributee

Answer 14

Any person who has received part of the estate from the decedent’s personal representative, other than as a creditor or purchaser.

Question 15

Personal Representative

Answer 15

Any executor, administrator, successor, special administrator, or person who performs substantially the same function under the law governing their status.

Question 16

Property

Answer 16

Both real and personal property or any interest therein and anything that may be the subject of ownership.

Question 17

Escheat

Answer 17

When there are no takers of the intestate estate, the property goes to the state.

Question 18

What is the ‘Age of Majority’?

Answer 18

18.

Question 19

Holographic Will

Answer 19

A will wholly in the handwriting of the testator without attesting witnesses. Valid in Virginia.

Question 20

List the requirements for a valid holographic will.

Answer 20

• Be entirely in the handwriting of the testator
• Be signed by the testator
• Evidence testamentary intent

Question 21

How is a will construed?

Answer 21

A will is construed in light of the circumstances as they existed at the execution, but the will does not take effect until the death of the testator.

Question 22

What are the methods of revocation of a will?

Answer 22

• By the execution of a subsequent instrument
• By a physical act
• By operation of law

Question 23

‘Revocation by Execution of a Subsequent Instrument’

Answer 23

A will may be revoked in whole or in part by a subsequently executed will or codicil stating such revocation.

Question 24

‘Partial Revocation’

Answer 24

If the subsequently executed will, codicil, or other writing expressly revokes only a portion, the former will or codicil is revoked and superseded to the extent of such express revocation or inconsistency.

Question 25

What is 'Total Inconsistency' in will revocation?

Answer 25

If a subsequent will is totally inconsistent with an earlier will, the earlier will is thereby revoked.

Question 26

Explain 'Partial Inconsistency' in wills.

Answer 26

If two wills are partially inconsistent, both will be allowed to stand, and the provisions of the earlier will are given effect where not in conflict with those of the subsequent will.

Question 27

What constitutes 'Revocation by Other Writing'?

Answer 27

A writing other than a will or codicil may revoke a will if the writing declares an intent to revoke and is executed with testamentary formalities.

Question 28

What is 'Revocation by Physical Act'?

Answer 28

A will, codicil, or provision may be revoked if the testator, with intent to revoke, or someone at their direction, cuts, tears, burns, obliterates, cancels, or otherwise destroys the will.

Question 29

How can a holographic will be partially revoked?

Answer 29

A partial revocation of a holographic will may be made by crossing out or drawing lines through particular clauses.

Question 30

'Revocation by Operation of Law'

Answer 30

If a testator is divorced, all provisions in the will in favor of the divorced spouse are revoked, unless expressly stated otherwise.

Question 31

Intestacy

Answer 31

The condition of the estate of a person who dies without having in force a valid will or other binding declaration.

Question 32

What are the Virginia rules of inheritance if you die with children but no spouse?

Answer 32

Children inherit everything.

Question 33

What happens if you die with a spouse but no descendants in Virginia?

Answer 33

Spouse inherits everything.

Question 34

What is the inheritance rule if you die with a spouse and descendants, all of whom are descendants of that spouse?

Answer 34

Spouse inherits everything.

Question 35

What is the inheritance rule if you die with a spouse and descendants, at least one of whom is from someone other than that spouse?

Answer 35

Spouse inherits ⅓ of your intestate property and descendants inherit everything else (divided equally).

Question 36

If you die with parents but no spouse or descendants, who inherits everything in Virginia?

Answer 36

Parents inherit everything.

Question 37

Who inherits if you die with siblings but no spouse or parents?

Answer 37

Siblings inherit everything (or descendants).

Question 38

If none of the closest relatives exist, who inherits?

Answer 38

Then to aunts and uncles, and their descendants.

Question 39

Partial Intestacy

Answer 39

When a person has executed a valid will but does not dispose of all of the property by the will.

Question 40

What are the methods of distribution in estates?

Answer 40

* Per Capita * Per Stirpes

Question 41

Lapse

Answer 41

Occurs when a beneficiary dies before the testator with no designated alternative.

Question 42

Anti-Lapse Statute

Answer 42

Unless a contrary intention appears in the will, if a devisee or legatee is a grandparent or a descendant of a grandparent of the testator and dead at the time of execution or death, the children and descendants take in the place of the deceased.

Question 43

What happens if a devise or bequest fails and is not saved by the anti-lapse statute?

Answer 43

The property becomes part of the residue.

Question 44

Can adopted and illegitimate children take under the anti-lapse statute?

Answer 44

Yes.

Question 45

Ademption

Answer 45

When a testator makes a specific devise or bequest, and the identified property is not part of the testator’s estate at their death, the gift is 'destroyed'.

Question 46

Ademption by Extinction

Answer 46

Applies only to specific devises or bequests when the property is no longer part of the estate.

Question 47

What is the 'Stock Exception' in Ademption?

Answer 47

The beneficiary receives shares of another entity received as a result of a merger or sale of the original company.

Question 48

Augmented Estate

Answer 48

A source of property from which the surviving spouse can claim an elective share.

Question 49

What is the Augemented Estate comprised of?

Answer 49

- the value of all property, whether real or personal, movable or immovable, tangible or intangible, wherever situated, that constitutes the decedent’s net probate estate; - non-probate transfers to others; - non-probate transfers to the surviving spouse; - and the surviving spouse’s property and non-probate transfers to others.

Question 50

Elective Share

Answer 50

The right of a surviving spouse to claim a share in the spouse's augmented estate.

Question 51

What is the claim time for an elective share?

Answer 51

Within six months from the admission of the will to probate or the qualification of an administrator.

Question 52

What percentage of the augmented estate can a surviving spouse claim?

Answer 52

50% of the value of the marital property portion.

Question 53

What occurs if a spouse willfully deserts the other?

Answer 53

The party who deserted is barred from all interest in the estate of the other.

Question 54

Omitted Child Statute

Answer 54

Entitles a child born or adopted after the execution of a will to a portion of the estate unless specifically excluded.

Question 55

Uniform Simultaneous Death Act

Answer 55

How to distribute estates when multiple people die at the same time or within 120 hours. To take from the estate, the individual must survive the decedent for over 120 hours.

Question 56

What happens if the owner of property and the beneficiary die simultaneously?

Answer 56

The property is disposed of as if the owner had survived.

Question 57

Transfer on Death Deed (TODD)

Answer 57

Allows a real property owner to designate a beneficiary to receive title upon the owner's death without probate.

Question 58

What happens to a TODD if the transferor gets divorced?

Answer 58

The divorce revokes any transfer to a former spouse unless the TODD provides otherwise.

Question 59

Revival of Revoked Wills (VA Code § 64.2-411)

Answer 59

A revoked will cannot be revived unless it is re-executed with full testamentary formalities or a valid codicil is executed. If a codicil references a revoked will, it will republish the will and revive it.

Question 60

Codicil

Answer 60

A codicil is a testamentary document that amends, alters, or modifies a previously executed will and must be executed with the same formalities as a will.

Question 61

Venue for Probate

Answer 61

A decedent’s estate is probated where they resided before entering a nursing home (Va. Code § 64.2-443).