Wills & Trusts

Question 1

A transfer on death deed allows a real property owner to…

Answer 1

designate a beneficiary to recieve title to certain residential real property on the owner’s death without a probate proceeding or trust administration.

Question 2

A TODD will/will not supersede the provision of a will related to the specific real property.

Answer 2

Will

Question 3

If, after making a TODD, the tansferor is divorced…

Answer 3

the divorce revokes any transfer to a former spouse as designated beneficiary unless the transfer on death deed expressly provides otherwise.

Question 4

A prior will can be revoked in a number of ways, including the execution of…

Answer 4

a new will or writing in the manner in which a will is required to be executed, whether or not that document expressly revoked the prior will.

Question 5

A valid holographic will must be:

Answer 5

(1) entiely in the handwriting of the testator,
(2) signed by the testator,
(3) where two disinterested witnesses can attest to the handwriting, and
(3) evidence testamentary intent.

Question 6

Testamentary intent must be found…

Answer 6

on the face of the will, not from extrinsic evidence.

Quesenberry v. Funk, 203 Va. 619 (1962).

Question 7

A surviving spouse may claim an elective share regardless of whether:

Answer 7

(i) any provision for the surviving spouse is made in the decedent’s will or, (ii) the decedent dies intestate.

Question 8

An elective share is only available for a…

Answer 8

legal spouse of the testator.

Question 9

A common law marraige is one by…

Answer 9

ageement of two people who consider themselves married without any formal ceremony or license and who hold themselves out to the public as married.

Question 10

A claim for common law spouse is not available in Virginia, regardless of whether a couple is:

Answer 10

engaged, have lived together for a long time, or based on being formally married previously.

Question 11

Although the language of a will is construed in light of the circumstances as they existed at execution, the will is considered to take effect…

Answer 11

upon the death of the testator.

Question 12

If a will beneficiary dies before the testator,

Answer 12

the gift lapses.

Question 13

In the Commonwealth, a gift could be saved under the anti-lapse statute,

Answer 13

so long as the predeceasing beneficiary was a grandparent or lineal descendant of a grandparent of the testator.

Question 14

When a testator makes a specific devise, and the identified property is not a party of the testator’s estate at his death,

Answer 14

the gift is adeemed and the devisee receives nothing.

Question 15

An ademption exception exists for stocks where…

Answer 15

the beneficiary would receive any shares of another entity received as a result of a merger or sale of the original company.

Question 16

When an ademption exception exists, the doctrine of ademption is said to

Answer 16

not apply.

Question 17

When a person has executed a valid will, but does not dispose of all of the property by the will, then that person dies

Answer 17

partially intestate.

Question 18

If, after making a will, a testator is divorced, all provosions in the will in favor of the testator’s divorced spouse are…

Answer 18

revoked by operation of law.

Question 19

Property devised to an ex-spouse passess as if,

Answer 19

the divorced spouse predeceased the testator, unless a contrary intention is apparent from the will.

Question 20

If property devised to an ex-spouse is a specific bequest, then the bequest

Answer 20

falls to the residuary taker.

Question 21

If there is no residuary taker, then

Answer 21

the gift passes under intestacy.

Question 22

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

Answer 22

such portion of the testator’s estate as he would have been entitled to if the testator had died intestate.

Question 23

The age of majority of Virginia is 18. Distributions from an estate…

Answer 23

cannot be made directly to a minor.

Question 24

The Virginia Simultaneous Death Act establishes that if…

Answer 24

two people die within 120 hours of another, each person is considered to have predeceased the other.

Question 25

If it is not established by clear and convincing evidence that one of two co-owners with a right of survivorship survived the other co-owner by 120-hours, the property passes by....

Answer 25

1/2 to each co-owner, as if the other had survived.

Question 26

If a decedent passes with two living childen, one deceased child, and the two children of that deceased child, who takes?

Answer 26

1/3 to each living child, and 1/6 to each grandchild who take by issue.

Question 27

If one provides for their children generically in their will (not by name), what is the effect of a later born child?

Answer 27

None -- they take by virtue of being one of the "children." | No need to apply omitted child statute here.

Question 28

Virginia law does not define what shall constitute a signature, any mark can be sufficient if....

Answer 28

that was an ordinary way for the testator to sign her name.

Question 29

Writing "last will and testament" on a document creates a presumption that...

Answer 29

the testator had the requisite testamentary intent.

Question 30

If a testator with the intent to revoke a will cuts, tears, burns, obliterates, cancels, or destroys their will, such will is....

Answer 30

void and of no effect.

Question 31

Once a will is revoked, it cannot be revived unless it is....

Answer 31

re-executed with full testamentary formalities.

Question 32

A codicil is a later testamentary intsrument that...

Answer 32

amends, alters, or modifies a previously executed will.

Question 33

A codicil must be executed with...

Answer 33

the same testamentary formalities as a will.

Question 34

The valid execution of a codicil that makes reference to revive a revoked will causes....

Answer 34

the will to be revived by republication of codicil.

Question 35

A disinterested witness is someone that...

Answer 35

is not a beneficiary under the will.

Question 36

In a holographic will situation, the testator's handwriting must be proven by....

Answer 36

two *disinterested* witnesses.

Question 37

If a beneficiary is not protected under the anti-lapse statute, a non-residuary bequest made to that beneficiary will pass under....

Answer 37

the residuary clause.

Question 38

If there is no residuary clause, and a gift has lapsed for which the anti-lapse statute cannot save, the gift will pass....

Answer 38

under intestacy.

Question 39

If a decedent dies partially intestate and without a surviving spouse, the estate passes to....

Answer 39

descendants, who take per capita with representation.

Question 40

Property passing per capita with representation will be divided....

Answer 40

into equal shares at the first generational level at which there are living takers.

Question 41

Two persons can enter into a binding contract not to revoke or amend their wills, but the agreement must be...

Answer 41

explicit. ## Footnote It will not be inferred simply from execution of reciprocal wills.

Question 42

Proof of a contract between testators must be....

Answer 42

clear and convincing.

Question 43

A beneficiary of a will contract may have standing to enforce it as...

Answer 43

a third-party beneficiary to that contract.

Question 44

If one intends to enforce an oral contract against a deceased, their testimony requires....

Answer 44

corroboration from a source other than the contract beneficiary, and not one within their control.

Question 45

If a contract to a will is breached, the remedy lies in

Answer 45

contract.

Question 46

A will contract beneficiary may request that a court impose....

Answer 46

a constructive trust against the estate, putting them under a duty to transfer the property. ## Footnote or if distribution has already occurred, against whoever is in possession of the estate property

Question 47

A valid will should be probated....

Answer 47

as written.

Question 48

The two requirements for finding that a document is a testamentary instrument are...

Answer 48

(1) Capacity; (2) Testamentary intent.

Question 49

Testamentary intent entails reference to...

Answer 49

property, persons, and death and desire that the document itself effect the transfer of property to persons at death.

Question 50

If a valid inter vivos gift was given to a donee who is different than who the transferee would have been under the will, the gift....

Answer 50

will stand -- so long as it was given with present donative intent, delivered to the donee, and accepted.

Question 51

Handing over a key to a safe deposit box could consititute....

Answer 51

constructive delivery of the contents inside.

Question 52

A trust need not be evidenced by a trust instrument, but the creation of an oral trust and its terms must be established by...

Answer 52

clear and convincing evidence.

Question 53

If one transfers assets to a trustee, in that capacity, the trustee is...

Answer 53

obligated to hold the assets for the benefit of the beneficiary.

Question 54

If the terms of a trust state that property shall be held by the trustee until a child reaches the age of 18, then, upon that birthday, the trust will....

Answer 54

terminates in favor of the beneficiary and the assets should be distributed outright.

Question 55

A will should be admitted to probate in the jurisdiction where...

Answer 55

the decedent had a place of residence.

Question 56

If a decedent was a patient in a nursing home prior to death, the place of legal residence is rebuttably presumed to be...

Answer 56

the same as it was before her or she became a patient.

Question 57

If there is an unsecured debt of an estate at one's death, the debt is to be paid first....

Answer 57

out of the remainder of the estate, to the extent that there are sufficient assets.

Question 58

The executor of an estate must be...

Answer 58

over 18 and legally competent.

Question 59

To serve as an executor, a non-resident must...

Answer 59

(1) appoint a Virginia resident or the Clerk to receive service of process on her behalf; and (2) post a surety bond.

Question 60

To admit a will to probate, the personal representative should...

Answer 60

bring the original copy of the will and a certified death certificate to the Clerk of the Circuit Court.

Question 61

At the clerk of court, the will proponent must...

Answer 61

pay the appropriate fees for probate.

Question 62

As to debts, personal representatives of an estate must...

Answer 62

verify debts, marshall the assets of the estate, and pay the debts of the estate.

Question 63

To establish that a decedent was the father of a child whom he had no knowledge of, to benefit from his estate, parentage must be proved by....

Answer 63

clear and convincing evidence.

Question 64

Life insurance proceeds are a non-probate asset and thus pass to...

Answer 64

the contractual beneficiary.

Question 65

A gaurdian appointed to manage property passing to an underage beneficiary must...

Answer 65

1. post bond, 2. provide a list of heirs at the time of qualification, 3. file an inventory within 4 months of appointment, and 4. file an accounting within 16 months of qualification thereafter.

Question 66

Constructive trusts arise....

Answer 66

independently of the intention of the parties, by contruction of law, in order to prevent what would otherwise be a fraud.

Question 67

The defendant for a suit for recovery of life insurance proceeds should be....

Answer 67

the holder of the proceeds, if the insurance company has done nothing wrong.

Question 68

(TRUE/FALSE): Creation of a constructive trust is itself a cause of action.

Answer 68

TRUE.

Question 69

The burden of proof required to impose a constructive trust is...

Answer 69

clear and convincing evidence.

Question 70

If a donor has present donative intent, the donor may reserve....

Answer 70

the right of possession of a gift, with a postponed right of enjoyment to the donee.

Question 70

The essence of delivery is the....

Answer 70

surrender of dominion and control of the gift by the donor.

Question 71

For a child born out of wedlock to claim a right in their deceased father's estate, they must, procedurally,....

Answer 71

within one year of his death, file an affidavit alleging parenthood and an action seeking adjudication of parenthood.

Question 72

Paternity must be established by...

Answer 72

clear and convincing evidence.

Question 73

In an action establishing parentage, a support agreement can be argued as....

Answer 73

an implict agreement.

Question 74

If a will refers to a written statement or list disposing of items of tangible personal property not otherwise specifically bequeathed, the list is given effect if it....

Answer 74

describes the items and recipients with reasonable certainty and is signed by the testator.

Question 75

In determining where a will should be probated, look to where (in order):

Answer 75

1. The decedent has a place of residence; 2. The decedent owns real property; or 3. The decedent died.

Question 76

Wills must be probated in which court?

Answer 76

The Circuit Court

Question 77

If decedents execute reciprocal or mirror image wills, this fact alone is not sufficient for a finding that they created...

Answer 77

an irrevocable contract.

Question 78

A will contract may arise in an implication from...

Answer 78

the circumstances and relations of the party and what they provided for in their instruments.

Question 79

Since reciprocal wills are contractual in nature, they can be...

Answer 79

specifically enforced in equity.

Question 80

A child will not be considered pretermitted or omitted if they were....

Answer 80

born prior to the will execution.

Question 81

After a divorce, a tenancy by the entirety will become a...

Answer 81

tenancy in common, with each taking an undivided half-interest.

Question 82

If a handwritten, signed note is executed by a testator, following a fully executed will, if it does not meet the holographic will formalities it will be considered....

Answer 82

a holographic codicil, modifying the earlier will but not extinguishing it.

Question 83

An inconsistent bequeath in a later testamentary document will....

Answer 83

revoke and supersede the earlier bequest.

Question 84

A will is construed to speak as if it has been executed...

Answer 84

immediately before the death of the testator, unless a contrary intention appears.

Question 85

(TRUE/FALSE): The anti-lapse statute will not save a gift bequeathed to one's sibling if they have later died and leave only a widow.

Answer 85

TRUE.

Question 86

Lapsed bequests fall into...

Answer 86

the residuary of an estate.

Question 87

In a suit by or against a decedent's estate, an adverse/interested party cannot secure a judgment if their testimony is... | Dead Man's Statute

Answer 87

uncorroborated.

Question 88

In a suit against a decedent's estate by an adverse/interested party, the decedent's hearsay statements are admissible if....

Answer 88

relevant.

Question 89

Revocation of a will by proxy must be done...

Answer 89

at the testator's direction and in the testator's presence.

Question 90

The proponent of a will is permitted, by a curative statute, to establish by....

Answer 90

clear and convincing evidence that a decedent intended a document or writing to constutute a decedent's will or a complete revival of his formerly revoked will.