Va Wills

Front 1

Intestate Succession

Back 1

No will, will denies probate or will does not make complete disposition

Front 2

Intestate Share of Surviving Spouse

Back 2

- Full amount unless at least one kid isn't hers. If so, then spouse gets 1/3, kids get other 2/3.

- Deserting Spouse - if willful and continuous up until death, gets nothing.

Front 3

Intestate Share of Heirs

Back 3

Descendants first, then parents, descendants of parents, split between maternal and paternal grand parents/kin, then collateral kin (brothers, sisters, aunts, uncles).
i.e. down, up then down, then side.

Front 4

Nonmarital child

Back 4

Full inheritance rights of mother.
Rights of father if:
Father married before/after birth or
C&C Evidence that:
1. Cohabited (live together as if married couple) with mother during entire pregnancy,
2. allowed use of surname,
3. father's name on birth certificate,
4. claimed child on tax return.
5. Determined to be the father through genetic tests
6. Paternity suit and ordered to pay child support

Front 5

Survival Rule for Heir/Beneficiary

Back 5

Must survive intestate decedent by 120 hours, otherwise predeceased. Shown by C&C evidence.

Payor (bank/insurance co) not liable if paid heir who didn't survive by 120 hours if they didn't receive written notice that heir wasn't entitled to property

Front 6

Disclaimer of Interest

Back 6

Allowed. Treated as predeceased.
Allowed to disclaim to avoid paying creditor's claims (not fraudulent), except cannot be used to avoid federal tax lien.

Front 7

Slayer Statute

Back 7

Person convicted or through Preponderance of the Evidence; Murder or Voluntary Manslaughter, forfeits all interests in victim's estate.

Front 8

Remedy if Slayer gets property

Back 8

Constructive trust may be imposed, due to willful and unlawful killing of another.

Front 9

Advancement

Back 9

A lifetime gift is presumptively an advancement to be taken into account during intestate distribution.

Front 10

Lifetime gift to Will Beneficiary

Back 10

Not treated as satisfaction of legacy unless expressly states through writing

Front 11

What Beneficiary has Before Testator's Death

Back 11

Expectancy until that time

Front 12

Attested Will Requirements

Back 12

Signed by testator, attested by 2 witnesses,
T to sign in all W's presence, and each W sign in T's presence.
- W need not sign in other W's presence.

Front 13

Signature

Back 13

May be anywhere on will.
Need only be intended as a signature

Front 14

Attorney Negligence Liabilty

Back 14

Only party who contract with attorney can sue.
Beneficiary cannot.

Front 15

Self Proving Affidavit

Back 15

Sworn statement with the will that attests that witnesses and testator properly signed the will and its validity.
- No need to have attesting witnesses in stand if the will's validity is in question

Front 16

Dispensing Power Statute

Back 16

Formalities can be ignored if by C&C Evidence, its shown that decedent intended the document to be his will.
Not a substitute for testator's signature unless:
1. Two people mistakenly sign each other's will
2. Self Proving Affidavit

Front 17

Holographic Wills

Back 17

1. Allowed, can be handwritten or type, but cannot be both!
2. No signature requirement
3. Finality by either signature or formal closing statement

Front 18

Proof of Will in Probate

Back 18

By preponderance of the evidence must show will was duly/appropriately executed.

Front 19

Proof of will in Ex Parte Probate and Appeal

Back 19

Personal Rep must give written notice of proceeding to heirs within 30 day After probate.

Appeal to Circuit Court within 6 months from probate order entry

Front 20

Proof of Holographic will in Probate

Back 20

Need two disinterested persons to attest that handwriting is wholly the testators

Front 21

Revocation of Wills

Back 21

Need: 1. "testamentary" capacity - sound mind
Revoke by:
Operation of Law, Subsequent Written Instrument or by Physical Act

Front 22

Marriage after Will

Back 22

Surviving spouse take Intestate share unless clear from the will that omission was intentional (must state that X or any other spouse is to get nothing)

Front 23

Divorce

Back 23

Read will as through the Former Spouse Predeceased Testator.
Mere separation not enough.
Applies to nonprobate transfers as well: life insurance, annuities, retirement benefits, deferred compensation, but not retirement under ERISA. (beneficiary designation is revoked)

Front 24

If Reconcile and Remarry (each other)

Back 24

All provisions in favor of the former spouse are revived

Front 25

Pretermitted Child

Back 25

Applies to all omitted children, including those alive - requires that they be at least mentioned in the will.
Applies only to afterborn or after adopted/in gestation.
1. If no other children, take intestate share (if also descendant of surviving spouse, intestate share if $0)
2. If other children, take lesser of largest bequest made to other children and intestate share
3. Lifetime gifts have no effect on share

Front 26

Revocation by Written Instrument

Back 26

Same Formalities as will. Usually "This is my last will and testament and I hereby revoke all earlier wills and codicils thereto"
- may be dispensed if intent to revoke from clear and convincing evidence.

Front 27

Revocation by Implication

Back 27

Second will fails to mention first. Will revoke the first to the extent of any inconsistencies, but otherwise may be read together

Front 28

Revocation by Physical Act and person doing act

Back 28

Cutting, burning, tearing, "obliterating," destroying with Intent to revoke during act.
May be done by another (proxy)

Front 29

Partial Revocation

Back 29

Valid. Can cross out a particular devise, cannot amend (unless dispensing power of formalities, C&C evidence)

Front 30

Revocation Presumption

Back 30

- Cannot be found, its Presumably Revoked

Front 31

Alterations

Back 31

Valid through "dispensing with formalities act" if shown intent by clear and convincing evidence.

Front 32

Republication by Codicil

Back 32

Valid execution of codicil making express reference to revoked Will has the effect of reviving the will.

Front 33

Dependent Relative Revocation

Back 33

Equity-type doctrine that allows a court to disregard a revocation if it was based on a mistake of law or fact (but for test) on another disposition.
Such as revoking will #1 due to making will #2, not realized #2 is invalid.

Front 34

Incorporation by Reference Requirements

Back 34

i. Doc must be in existence
ii. will must refer to the document as being in existence +
iii. Will must properly identify and describe the document with "reasonable certainty"

Front 35

Incorporation by Reference Exception to Personal Property

Back 35

VA allows will to refer to a written statement or list that disposes items of tangible personal property not specifically bequeathed by will.
- Writing must be signed by testator and describe property with "reasonable certainty" but no need for witnesses
- May be prepared before or after the will's execution and may be altered by testator at any time.

Front 36

Incorporation by Reference Exception to Fiduciary

Back 36

Letter to fiduciary as to how discretionary power should be interpreted.
- Must be (1) Signed and (2) Notarized
- May be done Before or After execution of the will, trust or power of attorney

Front 37

Acts of Independent Significance Doctrine

Back 37

Will may dispose of property by reference to an independent event, that has "lifetime significance"
- Does not include title documents (unless evidence by writing)
- Example: Will provides "legacy of $55 to all my employees at time of my death." 1 employee leaves. Still valid

Front 38

Power of Appointment Types

Back 38

General - exercisable in favor any anyone donee chooses (the appointee)
Special - limited by donor and not including the donee, her estate or creditors

Front 39

Power of Appointment (POA)

Back 39

Will needs to make specific reference to create a POA. A residuary clause is not sufficient to create one.

Front 40

Ejusdem Generis Doctrine

Back 40

In construing a will with a list of items + general words, general words will equal the type of goods from the list of item.
e.g. "Residence + furniture + all personal property therein" - only refers to tangible property because of the use of "furniture"

Front 41

Joint Wills

Back 41

Must be revoked by both parties, i.e. becomes irrevocable by survivor after death of a party to the contract.

Front 42

Joint Will Remedy for Improper Revocation

Back 42

If revoke in breach of contract (after death of one party), beneficiaries may enforce K in equity:
Specific Performance
Constructive Trust - trust impose by court to to benefit a wronged party

Front 43

Contractual Will Proof + Procedure

Back 43

Proof: "Clear and Satisfactory" from language of the will, extrinsic evidence and the like
Procedure: If contractual, second will is probated

Front 44

Term for Beneficiary recovering for services rendered

Back 44

Quantum Meruit - recovers reasonable value for services rendered.

Front 45

Anti-Lapse

Back 45

Gifts become lapsed if beneficiary dies during testator's lifetime.
Anti-lapse saves the testamentary gift and B's descendants are "substituted takers'.
B must be a grandparent or lineal descendant of testator's grandparents.

Front 46

Anti-Lapse Class GIfts + Adopted

Back 46

Applies if B is grandparent or lineal descendant of testator's grandparents.

Gift to someone's "children," etc. presumptively includes adopted children

Front 47

Specifically Bequeathed Property Not in Testator's Estate

Back 47

Ademption by Extinction (i.e., it fails)
Only applies to specific devises and bequests, not to "interest" in property.
- Does not apply to Legacies (e.g. sale of property due to loss or by conservator, etc.)

Front 48

Legacy Types

Back 48

General - bequest of $ amount from general assets of estate.
Demonstrative - bequest of $ amount from specific assets.

Front 49

Ademption of Securities

Back 49

"my 200 shares" - adeemed if already sold.
"200 shares" - not adeemed.

Front 50

Surviving Spouse Elective Share

Back 50

1/3 (if survived by lineal descendents) or 1/2 (if no d's) of Augmented estate. Purpose is to protect disinheritance.
Must file notice of election within 6 months after (i) admission of will into probate or (ii) appointment of administrator

Front 51

Augmented Estate Valuation

Back 51

At time of death.

Front 52

Family Allowance + Homestead + Exempt Personal Property

Back 52

Family - $18,000 w/o court approval
Exempt - household furniture, funishings, etc. cars, appliances, etc. not to exceed $15,000.
Homestead - $15,000. In lieu of property passing to spouse by will, intestacy or elective share!!

Front 53

Right of Quarantine

Back 53

Spouses right to live in property up until rights in property are determined.

Front 54

Will Contests Types

Back 54

1. Lack of Testamentary Capacity
2. Undue Influence
3. Fraud
4. Mistake

Front 55

Missing Person - Presumed Dead

Back 55

Gone at least 7 years or less than if exposed to "specific peril of death" or
disappears at sea - presumed dead after 6 months

Front 56

Self Authenticating

Back 56

Deed must be at least 30 years old + found were likely to be kept in a condition free from suspicion.