Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
67 Cards in this Set
- Front
- Back
|
heir |
person who takes property by intestacy |
|
|
non-probate property |
governed by an instrument other than a will
ie: life insurance, individual retirement accounts, survivorship property, and living and revocable trusts |
|
|
In order to inherit, must survive testator by: |
120 hours |
|
|
executor |
someone named under a will to represent an estate |
|
|
administrator |
someone appointed by the court to represent an estate (intestacy) |
|
|
administrator d.b.n |
successor administrator - an administrator appointed by the court ceases to serve; thus, the court appoints an administrator d.b.n |
|
|
administrator c.t.a |
appointed by a court when a will does not designate an executor or when the or when the designated person fails to serve |
|
|
Slayer Statute |
someone who kills a person from whom they might inherit cannot profit from their wrongdoing
a conviction or preponderance of the evidence that the slayer committed murder or voluntary manslaughter is sufficient |
|
|
Disclaimer |
a refusal to accept property; treated as having predeceased decdent.
must be in writing, signed, and delivered to executor or administrator |
|
|
elective share |
right that a surviving spouse has to the property of the decedent |
|
|
family allowance |
an amount that exists to support the surviving spouse during the administration of the estate
reasonable amount not to exceed $18,000
can be by minor children if no spouse
takes priority over all other claims |
|
|
exempt property |
surviving spouse or children if no spouse can take these items without being subject to claims of general creditors (not secured creditors)
household items, cars, furnishings, etc |
|
|
homestead allowance |
the allowance is cash, $15,000, to the surviving spouse and if none, to the minor children
must relinquish rights under will or the estate in order to elect this allowance
election must occur within 1 year for homestead allowance |
|
|
augmented estate |
most significant spousal protection; primary protection that a surviving spouse has against disinheritance
if decedent left children or other descendants, spouse can claim 1/3 of estate
if no surviving children, spouse can claim 1/2
can also claim interest 6% per year on the elective share |
|
|
What makes up the augmented estate? |
the net probate estate
property the decedent has transferred to third parties
property of a surviving spouse derived from the decedent
transfers made by the spouse that were derived from the decedent |
|
|
the net probate state is reduced for: |
the family allowance and exempt property funeral expenses costs of administering the estate |
|
|
decedent's transfers of property to third parties will be pulled into the augmented estate if occurring within what and exceeding what amount? |
within year of decedent's death and five preceding calendar years; must exceed 10,000 to a single beneficiary |
|
|
When must a spouse make a claim for the election share? |
within 6 months of the admission of the will into probate or the qualification of an administrator in intestacy |
|
|
Effect of willful desertion or abandonment |
the deserting spouse will lose his claim to intestacy, elective share, exempt property, family allowance, and homestead allowance |
|
|
what are the rights of the surviving spouse under the intestacy statute? |
surviving spouse will take either 1/3 or 100% of the estate, depending on the scenario
1/3 if the decedent has children or other descendants outside of the marriage
100% otherwise |
|
|
What is the order of people who take under intestacy statute? |
Surviving spouse Descendants Parents Descendants of parents (siblings, nieces, nephews, etc.) Grandparents |
|
|
What is the parentelic system? |
determines who gets under intestacy statute - look up to closest ancestor, then down to those ancestor's descendants |
|
|
What are the two ways to determine the shares of the decedent's grandchildren? |
Give grandchildren the share that would have been inherited by their parents - if more than one child, will share equally. (standard - per stirpes)
Distribute to grandchildren only when all children are predeceased. |
|
|
Half bloods receive what share under intestacy? |
1/2 share of a full blood |
|
|
Advancement |
A substantial gift made to an heir during life by the decedent that counts toward that heir's inheritance |
|
|
Four requirements for formal wills |
in writing, signed by testator, signed or acknowledged in presence of two witnesses present at the same time, and the witnesses must sign the will in the presence of the testator |
|
|
When may a proxy sign for a testator? |
If he is directed to do so by the testator and signed in the testator's presence |
|
|
Codicil |
An amendment to a prior will; must be executed with same formality of will |
|
|
Incorporation by reference requirements |
the external document must exist at the time of will execution (unless memo for tangible personal property) the will on its face must indicate the document's existence, and the will must identify the document with sufficient specificity |
|
|
Holographic Will requirements |
will that is written wholly in the testator's writing and is signed by the testator (with the intent for it to be his signature and that the writing be legally effective as a will) |
|
|
Harmless Error Rule |
A signed writing may be admitted into probate as the testator's will, even if not properly witnessed or wholly in the testator's writing, if the proponent establishes the testamentary intent by clear and convincing evidence |
|
|
Revocable trust |
a trust for the benefit of the trust creator during his lifetime; creator retains the right to revoke the trust and specified who will receive the trust; executed according to laws of trusts |
|
|
A testator's failure to perform a contract relating to a will will result in what? |
a court imposed constructive trust |
|
|
if the surviving party cannot establish that there was a contract and enforce an agreement, she is entitled to: |
quantum meruit (the value of services rendered) |
|
|
revocation of will |
physical act (intent to invoke + cutting, tearing, burning, cancelling)
by proxy (if done at the testator's direction and in the testator's presence)
express revocation (by executing a subsequent will that states the express intent to revoke the prior will) |
|
|
If a second will is created that does not expressly revoke the prior will, what will happen? |
You should attempt to read the wills together the best you can but give priority to the later will. |
|
|
Dependent Relative Revocation |
Arises mostly when a testator has a partial physical act revoking a piece of a will but fails to create a substitute.
Where the testator attempts to replace a bequest with an amount that is substantially less, DRR will not apply. |
|
|
Revocation will be automatic in what DR matters? |
divorce or annullment
will not result in revocation if it is a legal separation or willful abandonment |
|
|
Two ways in which a later will can revoke a prior will? |
expressly (if expressly, will not be revived upon revocation of second will)
by inconsistency (will be revived upon revocation of second will) |
|
|
revival by publication |
a codicil to a will re-executes the will |
|
|
anti-lapse statute |
a statutory system that creates a substitute gift in favor of th elapse beneficiary's descendants if the beneficiary was closely related to the testator |
|
|
When a gift of the residuary estate lapses, who does it pass to? |
those taking under the intestacy statute |
|
|
doctrine of cy pres |
when a gift is to a charity that no longer exists or for a charitable prupose that cannot be obtained, courts will invoke the doctrine of cy pres and modify the gift in order to carry out the testator's testamentary intent |
|
|
If a spouse is omitted in a premarital will, the spouse will receive: |
the spouse will receive an intestate sharae under the will unless it says that the omission was intentional or there was republication by post-marriage codicil |
|
|
IF a child is born after the execution of a testator's will, the child will take: |
the lesser of the amount the child would have taken under the intestacy statute or the largest amount received by any other child under the will |
|
|
What is ademption by extinction? |
property that is no longer in a testator's estate - will be said to "adeem" (fail) |
|
|
ademption by satisfaction |
when a gift is satisfied because the testator transferred it to the intended recipient during her lifetime |
|
|
Does an estate have an obligation to pay off a mortgage on mortgaged property? |
At common law, yes.
In VA, no, unless specified otherwise in the will |
|
|
What is abatement? |
it dictates the order in which property is subject to the claims of creditors
personal property first (in VA and at CL) |
|
|
Order of abatement of personal property |
property passing by intestacy property passing under the residuary of a will general bequests demonstrative bequests specific bequests
real property abates only when all personal property is insufficient |
|
|
Extrinsic evidence is permitted to alter language in the will only when: |
the language is ambiguous |
|
|
standard for mental capacity |
testator was capable of recollecting his property, the natural objects of his bounty and their claims against him, and he knew the business about which he was engaged and how he wished to dispose of his property |
|
|
In capacity issues, who has the burden? |
The proponent (person wishing to have a will admitted to probate) has burden of persuasion. May shift the burden going forward by with evidence proving compliance with statutory requirements. |
|
|
Insane Delusion |
a testator has the abovementioned mental capacity but also has an irrational persistent belief in an imaginary state of facts
will matter only if it impacts the will |
|
|
undue influence |
contestant has burden of proving undue influence by clear and convincing evidence; must show measures that the testator could not resist, that control the testator's volition, and that induced the testator to do that which he would not otherwise do |
|
|
fraud |
the wrongdoer misrepresented a material fact to the testator, the wrongdoer intended to deceive in order to influence the testator to make a disposition that she would not otherwise of made. |
|
|
No Contest Clause |
a will provision that removes any bequest for a person who contests the will; these are enforced under VA law |
|
|
Jurisdiction over probate is in what court? |
Circuit Court |
|
|
Venue for probate is determined in what order? |
1.) where decedent had her primary residence
2.) the place where the decedent owned real property
3.) the place where the decedent died or had personal property |
|
|
self-proving affidavit |
allows the will to be offered for probate without additional witness testimony; it is often a separate sheet signed by a notary |
|
|
ex parte probate |
a list of heirs must be filed with the probate (CC clerk in va) before the appointment of an administrator or executor
after the admission of a will into probate, notice must be sent to all interested parties within 30 days |
|
|
attestation clause |
a provision at the end of the will signed by the witnesses stating that the will was duly executed and that the testator had capacity
prima facie evidence of due execution but does not excuse witness testimony |
|
|
in order to serve as an executor or administrator cta, person must: |
be at least 18 provide an oath of office provide an oath that the document offered for probate is the testator's last will must post bond
(same under intestacy except that they give oath that there is no will) |
|
|
Who has priority for being named administrator, c.t.a or under intestacy? |
Administrator CTA first goes to the residuary or substantial beneficiary under the will
Administrator under intestacy goes to the heirs |
|
|
Duties of an administrator or executor |
loyalty and prudence |
|
|
Small estates of what amount may be administered without formal probate? |
50,000 or less |
|
|
What are the steps for administration of an estate? |
inventory of all estate assets is filed with the commissioner of accounts; due within 4 months of qualification
then, an accounting that shows receipts and vouchers of the first year of the estate msut be submitted within 16 months of qualification |
