Reading...
Play button
Play button
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;
48 Cards in this Set
- Front
- Back
|
What is the intestate share of a surviving spouse?
|
If not survived by descendants or only descendants of the deceased, spouse takes the whole intestate estate portion.
If survived by decedent's other kin, not of the surviving spouse, then 1/3 of intestate estate to the surviving spouse and 2/3rds to the descendants. |
|
|
What is the effect of willful desertion until the deserted spouse's death?
|
Deserter spouse cannot inherit under testate or intestate succession, can't serve as an administrator if any heir objects, no elective share, family allowance, homestead allowance and any right to any exempt property.
|
|
|
What are other statutory rights of a surviving spouse over and above amounts passing under testate or intestate or elective share?
|
Residence: only if (i) surviving spouse claims an elective share, or (ii) decedent died intestate survived by descendants by a former marriage spouse can live in residence w/o charge for rent/taxes/insurance
Exempt Personal Property Up To $15,000: if not property can take cash Family Allowance For 1 Year of Support: not to exceed $18k unless court permits upon petition Homestead Allowance of $15k: only if spouse gets less than $15k from will or intestate, not available if spouse claims an elective share If no spouse available to children under 17 |
|
|
Inheritance by descendants is per capita with representation, what does this mean?
|
That the share not passing to a surviving spouse passes to the decedent's descendants at the first generational level take a share and the share of each deceased person at that level passes to his issue by representation
|
|
|
What is the hierarchy in VA for intestate succession?
|
1. Spouse and/or Descendants
2. Parents 3. Brothers/Sisters of Decedent 4. Maternal and/or Paternal Grandparents or their respective descendants 5. Nearest maternal and/or paternal kin 6. Heirs of pre-deceased spouses in above order 7. Escheat to the Commonwealth |
|
|
What are halfbloods and how much do they take relative to wholebloods?
|
"Horizontal relations, " collaterals (i.e. siblings who are related through only one common parent).
They inherit half as much as whole bloods |
|
|
How may a non-marital child prove paternity to gain full inheritance rights from the biological father?
|
MAC
Marriage: father married mother before or after child's birth even though marriage is void Adjudicated to be father: found to be dad in a paternity suit (filiation proceeding) Clear and Convincing Evidence: BAD CAT |
|
|
What clear and convincing evidence may be used to establish paternity of a non-marital child.
|
BAD CAT
Birth certificate Admit paternity in court or under oath DNA genetic test Cohabitation: w/ mom during 10 months before birth Allowed child to use surname Tax return: claimed child for tax credit DCAT: requires affidavit asserting paternity filed w/in 1 year after man's death |
|
|
What is the Uniform Simultaneous Death Act?
|
Must survive by 120 hours to take as heir or beneficiary else considered predeceased
|
|
|
What is the intestate doctrine of advancement?
|
If a parent provided a substantial inter-vivos gift to a child/grandchild a presumption arises that this counts towards their share.
Descendant must rebut presumption else go into Hotchpot |
|
|
What is the Hotchpot?
|
Means for accounting the effect an advancement has on descendants share of an intestate estate.
Value is at the time the gift was received; not time of donor's death. |
|
|
How is ademption by satisfaction treated in VA?
|
Lifetime gift does not extinguish a legacy, unless:
1. declared by donor in writing at time of bequest in satifsaction of bequest; OR 2. acknowledged by donee in writing at time of bequest as in satisfaction of bequest; OR 3. Will acknowledges any lifetime gifts are in satisfaction of bequests |
|
|
How may a beneficiary renounce a bequest in VA?
|
Valid Disclaimer Must:
1. Be in writing and signed (no notary) 2. Delivered to estate rep. trustee or payor 3. 9 months to escape Fed. gift tax consequences |
|
|
What is the VA slayer statute?
|
If person is convicted of murder or voluntary manslaughter of decedent
OR A person is found to be murderer by preponderance of the evidence in a civil proceeding because not available for criminal prosecution DOES NOT TAKE treated as predeceasing decedent, but heirs (kids can still take) |
|
|
What are the requirements for a witnessed will/codicil?
|
1. Testator must be 18
2. Must be signed by testator or by someone on behalf of T at his direction and in his presence 3. Presence: witnesses must be present together when T signs/acknowledges will 4. # of Witnesses: 2 or more 5. Witnesses can be interested |
|
|
What are the requirements of a holographic will/codicil?
|
1. Handwritten
2. Signed by T, indicating finality 3. Wholly in T's handwriting, as proven by 2 disinterested people 4. Must contain "death talk", indicating finality of act |
|
|
What is the burden of proof for a will in probate?
What is the Statute of Limitations for interested parties to challenge a will admitted/denied probate? |
Burden of proof of due execution is on will proponents.
6 Months: can appeal to the circuit court from an order made by a clerk or court deputy OR 1 Year: to file a bill in equity to impeach the will already filed with the court No time limit in VA on when a will must be submitted for probate |
|
|
What is a self-proved will?
|
If at the time of execution or any time thereafter:
1. T acknowledges the will 2. Witnesses acknowledge the will 3. before a notary |
|
|
What is the VA anti-lapse statute?
|
Applies to WILLS only.
If devisee or legatee under class gift is: 1. a relative of testator AND 2. devisee/legatee is dead at time of execution of will OR is dead at time of testator's death Descendants of the deceased devisee/legatee take in place of the deceased devisee/legatee Saves property from common law lapse. |
|
|
What is the rule of administrative convenience as it pertains to class gifts?
|
A class closes when some class member is entitled to a distribution.
Means after-born class members will miss out |
|
|
What happens when the following occur after execution of a will: Marriage (Omitted Spouse), Divorce, Birth/Adoption?
|
Marriage: new spouse takes spouse's intestate portion at time of testator's death. Unless: T stipulates otherwise, there is another will, or dies before 5 days
Divorce: final decree of divorce/annulment after will execution treats former spouse as predeceasing T (revived if remarry) Birth: kids born/adopted after will execution (i) if no other kids at will execution, kid takes intestate portion; (ii) if living kid at execution, new kid takes the LESSER of either what new kid would have got from intestate OR equivalent of the largest bequest to any kid in the will |
|
|
Under what 3 circumstances does VA allow revocation of a will?
|
1. Physical act of destruction (can be via proxy: done at T's request & in T's presence); must touch writing
2. Valid subsequent will that expressly or impliedly revokes previous will and codicils 3. Divorce or annulment revokes by operation of law any provisions in favor of former spouse |
|
|
What is presumed about a lost or mutilated will after T's death?
|
They are presumed to have been revoked by physical act.
|
|
|
How may a will be revoked in VA?
|
1. Write a new will/codicil revoking an older will.
2. Revoke a subsequent will that revoked a previous one by subsequent instrument; MUST RE-EXECUTE the OLD WILL 3. Dependent Relative Revocation: disregard revocation when based upon a mistake of law/fact as to the validity of another disposition |
|
|
How may a lost will be proven?
|
1. Due execution must be proved as in any other case
2. Cause of will's nonproduction must be proved (must overcome presumption of revocation) 3. Contents of will must be proved by clear and convincing evidence |
|
|
What if there are two valid wills?
|
Read them together to the extent possible, but if second will is wholly inconsistent with the first, the first will is revoked by implied revocation.
|
|
|
Are partial revocations by physical act valid in VA?
|
Yes
|
|
|
In what order is an estate used to pay estate taxes?
|
First use personal property:
(i) intestate property, if partial intestacy (ii) residuary assets (iii) general/demonstrative legacies (iv) from specific bequests Second use real property (i) in the same order as above Estate taxes are paid by all estate beneficiaries pro rata ('communist") |
|
|
What is ademption by extinction? And what things are excluded from being adeemed by extinction in VA?
|
Property left by specific bequest/devise will is no longer in existence at time of probate.
Exceptions: 1. Condemnation awards or fire/casualty insurance proceeds paid/owed after T's death (not if fully paid prior to T's death) 2. If property is sold by guardian/conservator of T; right to general legacy in the amount of the net sale price |
|
|
Can a devisee demand payment of existing liens on inherited property from the T's residuary estate?
|
NO.
Unless contrary result is stated in will, specific devise of real/personal property passes subject to any mortgage, pledge, security interest, or other lien existing at the date of T's death; without exoneration. Exceptions: 1. if the lien was created by an agent acting under a valid durable power of attorney 2. If the lien was created by a conservator, guardian or committee of the testator |
|
|
What is incorporation by reference and how is it made valid?
|
Extrinsic documents may be incorporated into a will.
In order to do so: 1. Must be in existence when will executed; AND 2. Will must show an intent to incorporate the writing; AND 3. Must describe the writing with reasonable certainty so no mistake; AND 4. Will must be valid |
|
|
What is a legal list and how is it made valid?
What is an item of "independent significance"? |
List of personal property kept by a testator that may come into existence before or after execution of the will.
Requirements: 1. Refers only to tangible personal property (NOT $) 2. In existence at time of execution or after execution of the will 3. Describe items with reasonable certainty 4. List must be signed by the testator 5. Will must refer to the list and the will must be valid Item of Independent Significance is a valid gift of "my automobile" it can change, so devisee would get whatever car at time of death |
|
|
What is a patent ambiguity, a latent ambiguity, and what evidence is allowed to resolve them?
|
Patent ambiguity is an ambiguity that is clearly seen ("I give $25 (twenty five thousand dollars) to Ted."
Latent ambiguity is a word capable of more than one meaning ("I give $25 to my favorite nephew") For both you may introduce extrinsic evidence, "facts and circumstances" evidence and testator's declaration of intent. |
|
|
Is an attorney liable to third parties for negligence in drafting a will?
|
No, since there is no privity between the attorney and the beneficiaries. However, the attorney may be pursued with the state bar disciplinary code.
|
|
|
What is the doctrine of ejusdem generis?
|
"all my personal property" means all intangible property (i.e. stocks/bank accounts/bonds) and tangible property (i.e. a watch, car etc.).
Ejusdem generis says that a list of specific items followed by words of general import, the general words are construed to include only items of the same import as the items listed. Thus, "all my furniture and personal property located therein" includes only similar tangible personal property |
|
|
What is a testamentary power of appointment? Must it be referenced in order to execute it?
|
For a person given a life estate by will, that person has the power of appointment if given the option, by the will, to select where the property goes at the termination of the life estate.
Yes, must be explicitly referenced in order to execute the power in VA. Unless you give the specific property by name away, then it will be implied, unless bequest specifically said you have to specifically refer to power of appointment. Special power of appointment means you can't appoint to anyone, but only special classes allowed for by the will. |
|
|
If both wills law and contract law are implicated, how is it dealt with?
|
Unless there is clear and convincing evidence of a contract or agreement: (i) in the will, (ii) from extrinsic evidence, or (iii) by clear implication from surrounding circumstances, no contract exists between parties.
If a will is held to be contractual: 1. Apply wills law, then 2. Apply contract law |
|
|
What are non-probate assets and give 4 examples.
|
They are will substitutes not subject to disposition by will or intestacy.
1. Survivorship accounts; e.g. joint bank account, tenancy by the entirety, joint tenancy 2. Payable on Death; e.g. life insurance policy, employee retirement benefits, IRA 3. Inter Vivos Trusts: property held in trust where trust terms govern 4. Powers of Appointment: property over which decedent held a power of appointment |
|
|
What is the elective share statute?
|
Allows for surviving spouse to reach non-probate assets and some absolute gifts given by decedent spouse, given w/o receiving full and fair compensation and w/o surviving spouse's permission.
|
|
|
Describe the procedure for a spouse to take an elective share.
|
Spouse must file notice of election w/in 6 months: (i) after will is admitted for probate, or (ii) if no will, after administrator of intestate estate is appointed.
If spouse is incapacitated court may make election on her behalf, but any right of election dies w/ spouse. All beneficiaries contribute ratably (different from distribution of estate expenses) Spouse gets 1/3 of augmented estate if kids of decedent of any marriage exist; else spouse gets 1/2 of augmented estate |
|
|
How is an augmented estate calculated?
|
First: Probate Estate, after payment of debts/expenses
Second: Transfers to the Spouse - property owned by surviving spouse at time of death given by decedent spouse Third: Transfers to Third Parties - STRINGY LEGS: STRINGY: Strings Attached Lifetime gifts (e.g. revocable trust) L: Life Insurance E: Employee Death Benefits G: Gifts in excess of $10k S: Survivorship estates (e.g. joint bank account) Augmented Estate does not include JOG J: Joinder, transfers w/ spouse's consent O: Old Transfers, irrevocable transfers to third parties prior to 1/1/91 G: Gifts to deceased spouse, from someone other than surviving spouse |
|
|
Who may bring a will contest, and how may they attack the will?
|
Any person with economic interest that would be adversely affected by the will's probate (i.e. interested person).
Challenge by lack of testamentary capacity (invalidates will) or undue influence (merely strike portions made from undue influence). |
|
|
What is the test for testamentary capacity, and by what burden of proof is it judged?
What is the critical time for a T to have capacity? |
Did testator have sufficient capacity to:
1. Understand the nature of the act he or she was doing? 2. Know the extent of his wealth? 3. Know the natural objects of his bounty? 4. Able to interrelate the above three? Proponent of the will must show by preponderance of the evidence T possessed testamentary capacity. Shortly before or after, or at the time of execution. |
|
|
What is Undue Influence and what is the burden of proof?
|
Mere opportunity, susceptibility or unnatural disposition of disbursement is not evidence of undue influence.
Burden is on the party trying to show undue influence. Burden will shift if P can show a confidential relationship. Confidential relationship + suspicious circumstances = presumption of undue influence. To rebut the presumption need a preponderance of the evidence showing T's mind was able to resist undue influence. |
|
|
What are no contest clauses (in terrorem clause), and are they valid in VA?
|
Such clauses prevent person's with standing from challenging a will; the result of challenging a will with an in terrorem clause results in the challenger forfeiting their benefits under the will.
Law is unsettled, some states say no forfeit if you had proable cause to bring challenge, but still lost. Strict enforcement more likely in VA. Note: election, omitted spouse and omitted child challenges are exempt from a no-contest clause |
|
|
What is the jurisdiction for probate of a will?
|
County where the decedent was domiciled at the date of death. Exception for nursing homes, if decedent died in nursing home, probate venue is where they resided previous to entry into the home.
|
|
|
Who may be appointed to administer an estate?
|
to qualify as an executor of an estate one must (i) take oath to faithfully perform duties and (ii) give bond to secure performance (surety required on bond unless the requirement of security is waived in will)
Non-VA person can serve as executor or trustee of a testamentary trust if appoints resident agent for service of process. Non-resident bank cannot serve as executor or testamentary trustee. |
|
|
What is the priority of appointment in the 30 days after an intestate decedent's death?
|
1. Spouse who is sole distributee
2. Spouse who has written consent of all decedent's competent children 3. Any distributee who is sole heir 4. Any distributee who secures written waivers from all other competent distributees. After 30 days ANY distributee may be appointed as court sees fit |
