Va Wills

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VA Wills

pretermitted heir statute

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The pretermitted heir statute provides that if the T had no children at the time the Will was executed, the pretermitted child (if not otherwise provided for or mentioned in the will) takes the lesser amount of either: (i) the gift made to a named child in the will or (ii) an intestate share.

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VA Wills

Virginia Anti-Lapse statute

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Operates to save a lapsed gift if the predeceasing beneficiary was a grandparent or lineal descendant of a grandparent of the T and left descendants who survived the T.

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VA Wills

Assets Used to satisfy pretermitted child's share

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The intestate share of a pretermitted child is first taken from any portion of the estate not disposed of by will.

The amount necessary to satisfy the pretermitted child's share is next taken proportionately from all beneficiairies under the will.

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VA WILLS

Statutory rights of surviving spouse (REFH)

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Applies to BOTH testate and intestate
These amounts are over and above the amounts passing to surviving spouse:
1. Residence
2. Exempt personal property up to $15k
3. Family allowance = maintenance and support for up to one year (<$18k)
Homestead allowance of $15k.

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VA WILLS


Escheat

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if the Decedent left no living relations, the estate passes to the kin of decedent’s last deceased spouse under the above rules, or if none, then the property will escheat to the Commonwealth.

*VA law prefers that someone take the estate other than the Commonwealth.

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VA WILLS

Non-marital children have full inheritance rights from the biological mother.
Can inherit from the biological father but only if paternity is proven. How is it proven?

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MAC
1. Marriage
2. Adjudicated to be the father in filiation proceeding
Clear and convincing evidence

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VA WILLS

Clear and Convincing Evidence of paternity for intestate succession (BAD CAT)

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1. Birth certificate
2. Admits paternity in court or under oath
3. DNA genetic tests, other medical evidence
4. Cohabitation (with mother 10 months before childs birth)
5. Allowed child to use his surname
Tax return or other gov document

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VA WILLS

Uniform Simultaneous Death Act

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VA has adopted

The beneficiary must survive by at least 120 hours or five days.

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VA WILLS


Advancement

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Lifetime gifts to children from parents of significant value when viewed from the perspective of the parent’s estate
Creates a presumption of advancement
Only applies to intestate succession
No writing required
*use the date-of-gift value

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VA WILLS

Ademption by Satisfaction

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Only applies to testate
Whenever T provides a bequest in a Will and then makes an intervivos gift to the same person getting the property under the Will

Presumption is that the intervivos gift was in satisfaction of what is given in the Will; BUT ONLY IF:
i. Declared by the donor in WRITING
Acknowledged by the donee i in writing

Must be in writing in VA

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VA WILLS


Priority for appointment as administrator

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Descending priority:

Spouse who is sole distribute
Spouse who has written consent of all decedent’s competent children
Any distribute who is the sole heir
Any distribute who secures written waivers

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VA WILLS



Confidential relationship (undue influence)

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Trust
Priest-penitent
Doctor-patient
Guardian-ward
Attorney-client
*Presumption of undue influence

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VA WILLS

Test for Capacity

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Understand the nature of the act?
Know the extent of his wealth?
Know the natural objects of his bounty? (family members)
Able to interrelate the above three?

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VA WILLS

Surviving spouse must file notice of election w/in…

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6 MONTHS after will admitted to probate or administrator appointed.

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VA WILLS

Augmented estate does not include JOG

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JOINDER
OLD TRANSFERS (BEFORE JAN. 1, 1991)
GIFTS TO DECEASED SPOUSE

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VA WILLS


Computing the augmented estate

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Probate Estate,
Transfers to the spouse
Exception is for tangible personal property (ex: jewelry)
Transfers to 3rd parties – should be included
Strings-attached lifetime transfers (Recocable trusts should be included)
1. Life insurance
2. Employee death benefit
3. Gifts in excess of $10k (for 5 preceding years)
4. Survivorship estates

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VA WILLS


Incoporation by Reference

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Writing must be in existence when will executed;
Will must show an intent to incorporate the writing; AND
Must have sufficient description of the other writing.

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VA WILLS

Revocation of Wills

(Three circumstances)

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Physical act of destruction;
A valid subsequent Will that expressly or impliedly revokes the previous Will and its codicils; and
Divorce or annulment revokes by operation of law any provision favoring former spouse.

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VA WILLS



Rule of Administrative Convenience

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Class is closed when some class member is entitled to a distribution

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VA WILLS

Self-Proved Will

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T acknowledges the Will;
Witnesses acknowledge the Will;
Before an officer authorized to administer oaths (notary)
*Effect is to allow for the probate of the Will as properly executed.

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VA WILLS

Requirements for a Holographic Will

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i. Handwritten
ii. Signed by the T
iii. Wholly in T’s handwriting (two disinterested witnesses must testify)
iv. Must contain “death talk” that the instrument is intended to be a Will

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VA WILLS

Requirements for a witnessed will

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Must be 18 years old unless emancipated in a judicial proceeding
Signed by the testator or proxy signature
Presence requirement
1. T must sign the will
2. In the presence of both witnesses
3. Present at the same time as the T signs or acknowledges his signature.

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VA WILLS

For a DISCLAIMER to be valid…

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Must be in writing and signed
Must be delivered to personal representative
NINE MONTHS to escape federal gift tax consequences

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Ademption by Extinction

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When specifically bequeathed property is not in the testator's estate at death, the bequest is adeemed; it fails.
Applies to: specific devises and bequests.

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Statutory exceptions to Ademption Doctrine

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Sale by guardian or conservator - specific beneficiary entitled to a general legacy = to the net sale price or insurance proceeds (if destroyed)

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Surviving Spouse's Elective Share

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1/3 of the augmented estate if the decedent was survived by descendants
1/2 of the augmented estate if the decedent was not survived by descendants
*must file "notice of election" w/in 6 months of admission to probate

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Probate Jurisdiction and Venue

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CC have jurisdiction over all probate matters.

Venue lies in the city/county where the decedent resided OR where decedent owned real property

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Abatement

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the source of payments of claims is as follows: (i) personal property passing by intestacy; (ii) personal property in the residuary; (iii) general legacies, which abate pro rata; (iv) specific and demonstrative bequests of personal property; and (v) if the personal property is exhausted, the real property abates in the same order.

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Exoneration of Liens

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Unless directed in the will, liens on specifically bequeatherd property are not paid off by the estate.
If the lien was placed on the property after the T was incapacitated, the beneficiary is entitled to exoneration