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127 Cards in this Set
- Front
- Back
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What is probate?
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Court proceeding in which it is judicially determined that D left a validly executed will or, if there is no valid will, that D died intestate and intestate heirs are determined
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What are other terms for a personal representative?
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Executor if will names a person to administer the estate;
Administrator if no one is named or D died intestate |
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Define testate succession
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Where property passes under a valid will
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Define intestate succession
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Where property passes outside a valid will
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Define heirs
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Persons who take under intestate succession
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Define descendants
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Persons who take from D in descending fashion
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What are persons who take under a valid will called?
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Generally, called beneficiaries. Devisees - real property
Legatees - personal property |
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SS takes the entire intestate estate in which two scenarios?
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(1) If D survived by SS and descendants, all of whom are descendants of the surviving spouse
(2) If D survived by SS and no descendants |
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What portion of the intestate estate does the SS receive if D is survived by descendants, some of whom are not descendants of the SS?
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One-third (descendants split remaining two-thirds)
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How does willful desertion/abandonment of D by the SS effect the SS's inheritance?
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SS is barred from (1) inheriting under testate succession and intestate succession, (2) serving as administrator if any heir objects, and (3) receiving through elective share, family allowance, homestead allowance, or any rights to exempt property.
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Define desertion/abandonment
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Where a spouse willfully deserts or abandons decedent spouse w/o cause, and the desertion/abandonment continues until the innocent spouse's death
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To what statutory rights is the SS entitled?
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Residence
Exempt personal property ($25,000) Family allowance ($24,000 or petition) Homestead allowance ($25,000) |
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Under what conditions does the SS have a statutory right related to the residence?
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(1) if SS claims elective share or (2) D died intestate & is survived by descendants who are not descendants of SS
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Describe the statutory right of the SS to the residence
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SS can live in family residence w/o charges for rent, taxes or insurance until SS's rights in principal residence have been determined & satisfied
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What happens if there is less than $15,000 of personal property available to satisfy the statutorily exempt amount?
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SS is entitled to cash and other assets to get to $15,000
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How is "family allowance" defined? What is its purpose?
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the amount needed for support and maintenance for one year; to provide stability while the estate is in administration
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What is the homestead allowance? When is it not available?
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In lieu of property passing to the SS by will or intestate succession; not available if SS claims elective share
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How do descendants take under intestate succession?
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At first generation w/survivor, distribution per capita in proportion to number at that generation that are surviving or have surviving descendants
Where predeceased person is survived by descendants, the descendants take per stirpes |
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What is the order of intestate succession if D has no SS or descendants?
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Parents
Descendants of parents Grandparents |
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What do half bloods inherit as compared to whole bloods?
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Half as much
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What is the effect of stranger adoption on inheritance rights?
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Once finalized, child and child's descendants have full inheritance rights from the adoptive family (and vice versa) and no inheritance from biological relatives (and vice versa)
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What is the effect of stepparent adoption on inheritance rights?
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Child retains inheritance rights from both biological parents + stepparent
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What are the inheritance rights of non-marital children?
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Full inheritance rights from mother (and vice versa); can inherit from biological father only if paternity proven
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How is paternity proven?
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(1) Father married mother before or after child's birth;
(2) Father adjudicated to be parent in filiation proceeding; or (3) Clear & convincing evidence |
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What is clear & convincing evidence for the sake of proving paternity?
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BAD CAT
Birth certificate - father gave consent to authorized person to be named father Admits paternity in court or under oath DNA tests or other medical evidence Cohabitation w/mother during 10 months before child's birth Allowed child to use surname Tax return or other gov't document |
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If non-marital child claims paternity other than by birth certificate or admission of father, what must the child do?
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File (1) an affidavit asserting paternity & (2) an action to establish paternity w/in one year of the putative father's death
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Simultaneous death: to be a survivor, one must survive by at least ______
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120 hours or 5 days (unless D provides otherwise)
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If joint tenants die w/in 120 hours of one another, what happens to the joint tenancy?
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It dissolves, and the property passes as if they were tenants in common
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What is an advancement?
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A lifetime gift to a descendant of significant value when viewed from the perspective of the donor's estate
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If D dies intestate, how are lifetime gifts to descendants treated?
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Must be taken into consideration (i.e., deducted from descendant's share of intestate estate) if meant to be an advancement
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How is an advancement valued?
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Value at time of gift received by descendant, not value at death of donor
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A significant gift creates a _________ of advancement & ________ is on the descendant to rebut
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presumption; burden
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What is ademption by satisfaction?
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When a T provides a bequest in a will & then makes an intervivos gift to the same person -> it is presumed that the intervivos gift was "in satisfaction" of what was to be given in the will (and hence gift should not go to person who has already received it)
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What requirements must be met to satisfy a bequest with an intervivos transfer (to adeem)?
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Gift during lifetime was:
(a) declared by donor in writing at time of bequest to be in satisfaction; or (b) acknowledged by donee in writing at time of bequest to be in satisfaction; or (c) the will acknowledges that any lifetime gifts are in satisfaction |
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What is the effect of disclaiming?
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Disclaimed interest passes as though disclaimant predeceased D
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What are the requirements for an effective disclaimer?
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(1) be in writing or other record and signed and
(2) be delivered to personal representative of estate, trustee, or payor NB: 9 months to disclaim to escape federal gift tax consequences |
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What does a slayer statute do?
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Prohibits person convicted of murder from taking economic benefit from the victim by deed, will, intestacy or non-probate transfer
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When does a slayer statute apply?
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If: (1) person convicted for murder or voluntary manslaughter of D, or
(2) person found to be murderer by preponderance of the evidence in a civil proceeding where the person is not available for prosecution |
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Under the Harmless Error rule, when will a document be an effective will?
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If proponent can establish by C&CE that D intended that the document constitute:
(1) T's will; (2) partial or complete revocation of will; (3) codicil or modification of will, or (4) partial or complete revival of previously revoked will |
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Does clear & convincing evidence excuse requirements associated w/T's signature?
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No - unless two people mistakenly sign each other's wills or person signs self-proving affidavit and not the will itself
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What is the statue of limitations for bringing a petition under the Harmless Error rule?
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1 year of D's death
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What are the requirements for a witnessed will?
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1. Age (18 years or emancipated)
2. Testamentary intent (present intention that document be will) 3. Signature (by T or someone else at T's direction & in his presence) 4. Presence 5. Witnesses (at least 2) |
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Describe the "presence" requirement for an attested will
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T must sign or acknowledge in the witnesses' joint presence
C&CE will excuse lack of presence requirement |
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Describe the requirements of witnesses for an attested will
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At least two who sign in T's presence (not required to sign in each other's presence)
C&CE will excuse if only one witness |
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What is the effect of an attestation clause?
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It raises the presumption that the will was validly executed
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What is a codicil?
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An addition to an earlier will used to compliment it (not revoke in whole)
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What formalities are required for a codicil?
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The same as for a witnessed or holographic will
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What are the requirements for a holographic will?
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1. Age
2. Testamentary Intent 3. Handwritten (2 disinterested persons must testify that it is T's handwriting) 4. Signature (if not at the end, something else must show the finality of the instrument) |
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On whom is the burden of proof in probate?
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The proponent of a will
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What is the difference between an attestation clause and a self-proved will?
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An attestation clause recites the elements of due execution.
A self-proved will has an affidavit by the witnesses reciting all the elements the witnesses would testify to in open court and is sworn before a notary public. |
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What is the effect of a self-proved will?
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The affidavit can be substituted for the witness' testimony. It serves the same function as a deposition or interrogatory, and is accepted as if it had been given ore tenus before the court
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What is the statute of limitations for interested parties to challenge a will admitted to probate?
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(1) Six months to appeal to CC from order made by clerk or court deputy or
(2) One year to file bill in equity to impeach or establish the will already filed with the court In either case, trial de novo |
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What is the time limit for offering a will for probate?
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None, but bona fide purchasers of real property are protected unless will devising property is probated w/in one year of T's death
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What are the requirements for testimony of witnesses where (1) attested will is self-proved, (2) attested will is not self-proved, and (3) holographic wills?
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(1) Not required (except on motion of interested party in inter partes probate)
(2) Only one, if the other is accounted for (3) Two who testify that will is in T's handwriting |
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What should be done if will is probated in another state and D owned personal property in VA?
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File authenticated copy of the will & certificate of probate -> assumed that will is validly executed w/r/t personal property
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What should be done if will is probated in another state and D owned real property in VA?
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File authenticated copy of the will & certificate of probate -> w/r/t real property, must be shown that will was validly executed under VA law, unless self-proved under laws of other state
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Personal property passes according to the law of the _____ state; real property passes according to the law of the _____
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Domiciliary; situs (where it is located)
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What are the requirements for a self-proved will?
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Testator acknowledges the will and witnesses acknowledge the will before an officer authorized to administer oaths
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What is VA antilapse statute?
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Unless a contrary intention appears in the will, if devisee/legatee is (1) relative of T and (2) predeceased T, descendants of d/l who survive T take in place of d/l
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To what types of transfers at death does the antilapse statute apply?
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Wills only - not intestate succession or non-probate POD benefits
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What happens if a bequest or device lapses and the antilapse statute does not apply?
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The lapsed gift falls into the residuary estate
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What happens if there is lapse in a residuary gift?
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The other residuary benefits take the residuary estate, in proportion to their interests in the residue
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When does a class gift exist?
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When T intends to make a gift to a group of persons (class capable of increasing/decreasing on its own)
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What happens when a member of a class predeceases T?
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Surviving members take
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Are class gift subject to the antilapse statute?
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Yes; the class gift rules give way to antilapse when predeceasing class member is a relative & leaves descendants who survive T
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When is class closed?
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When some class member is entitled to a distribution (remember womb rule)
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What is an omitted spouse?
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Where T marries after executing a will and spouse survives T
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What does an omitted spouse receive? Exceptions?
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What would be the SS's intestate share, unless:
T provides otherwise for SS in will A will executed after marriage is operative SS disclaimed interest through valid prenup SS does not survive T by 120 hours |
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What is the effect of T's divorce after will is executed?
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Partial revocation (of provisions in favor of former spouse), unless will left everything to the spouse, in which case full revocation. Revocation ONLY effected upon final decree of divorce
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Which types of transfers at death does divorce effect revocation of?
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All death benefits (life insurance, retirement accounts, joint accounts and joint tenancies), but not ERISA
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What is a pretermitted child?
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A child born/adopted after parent, T, has executed a will, where there is no provision made for such child
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What does a pretermitted child receive?
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If T had no other child living at time of execution, PC receives intestate share.
If T had a child living at time of execution & will made bequest to that child, PC receives lesser of intestate share or equivalent of largest bequest |
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How can a will be revoked?
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(1) by physical act of destruction (touching the writing);
(2) by valid subsequent will/codicl/writing executed w/will formalities that expressly or impliedly revokes previous will; or (3) by divorce or annulment, as to provisions in favor of former spouse |
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Does the harmless error rule apply to revocation of wills?
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Yes: "The change in VA law allowing for C&CE evidence could be used here to effect a revocation if it can be shown by C&CE that T intended to revoke his will through the act performed."
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Can a will be revoked by proxy?
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Yes, if done at T's request and in T's presence
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What is the presumption regarding lost wills? Is it rebuttable?
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If the will may be traced to T's possession or control and cannot be found after T's death, presumed revoked by physical act; rebuttable by C&CE)
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What is the presumption regarding mutilated wills? Is it rebuttable?
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If will may be traced to T's possession or control and is found mutilated after T's death, presumed that T performed the mutilation, hence revoked; rebuttable by C&CE
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How may a will be revived after revocation?
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(i) reexecuting the will;
(ii) republication by codicil (executing codicil that refers to revoked will); or (iii) dependent relative revocation |
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Can a lost or destroyed will be probated?
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Yes, but only if proponent proves by C&CE that (i) will was properly executed; (ii) will was lost or destroyed; and (iii) will's contents
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Are additions or alterations to the will after the will has been executed effective?
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No, but the harmless error rule will apply to give will effect when there is C&CE that testator intended to modify the will
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What is dependent relative revocation?
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Where T revokes will on mistake of law/fact as to the validity of another disposition and but for the mistake, T would not have revoked the will. The disposition that results from disregarding the revocation must come closer to effectuating T's (failed) intent than disregarding the revocation would.
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How should documents be read when there are two documents purporting to be wills and the second does not revoke the first?
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Treat second as codicil to first - revokes only to the extent of inconsistent provisions, BUT if second wholly inconsistent w/first, first revoked by implication
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What is the effect at common law of a change of the amount of a bequest after execution of an attested will?
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Ineffective w/o formalities, but beneficiary will likely receive old amount under DRR
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What is the effect at common law of a change to beneficiary after execution of an attested will?
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Effective to disinherit first person, but new person does not receive because of lack of formalities
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In what order are expenses paid from the estate of D?
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Persons taking from intestate succession
Residuary gift General legacy Demonstrative legacy Specific bequests Non-probate transfers |
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What is a demonstrative legacy?
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A legacy paid from a specific source
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Which legacy is abated first to pay debts and expenses, real or personal property?
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Personal property first (go through entire order of abatement), then real
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How are estate taxes apportioned?
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Equitably among all beneficiaries, reducing everyone's interest pro rata, except gifts that do not generate tax (marital and charitable)
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What happens when specifically devised/bequeathed property is not in the estate at T's death?
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Ademption by extinction
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When does ademption by extinction occur?
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When specifically devised/bequeathed property is not in the estate at T's death
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When a vendor enters into a specifically enforceable real estate K, what are the vendor and purchasers interest? (real or personal)
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Vendor's interest is personal property (right to K payment) & purchaser's interest is converted into real property (right to specific performance)
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In cases where one is devised real property that is later subjected to a specifically enforceable K, what does the devisee get?
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Whatever is due on the K (doctrine of equitable conversion abolished)
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Does ademption apply to specific gifts?
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Yes
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Does ademption apply to demonstrative (or general) legacies?
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No
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When specific gifts are condemned or destroyed, what does the beneficiary receive?
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Remaining property + condemnation award or insurance proceeds paid after T's death
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When specific gifts are sold by a guardian/conservator after T adjudicated incompetent or under a disability, what does the beneficiary receive?
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General legacy equal to sale price
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When does a beneficiary take securities different than those specified? Why?
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(1) add'l securities of same entity due to action of the entity (but not exercise of stock option)
(2) securities of different entity resulting from takeover or merger Form has changed, but substance is the same |
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What is the common law rule on exoneration of liens? The VA statutory rule?
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Common law: real property devised in a will - exonerated
VA: unless contrary result, any specific devise of real or personal property generally passes subject to lien or mortgage |
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When does a specific devise of real or personal property not pass subject to lien or mortgage?
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When lien/mortgage created by agent under power of attorney or guardian, conservator, or committee of T
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When is a document not present in the will itself when the will was signed incorporated by reference?
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(1) extrinsic writing in existence when will executed;
(2) will shows an intent to incorporate; and (3) will describes writing w/reasonable certainty |
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What is a legal list?
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A separate list of personal property to pass items to named recipients
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What are the reqts for a legal list?
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(1) List refers only to tangible personal property (not money or the like, including stock);
(2) list describes items w/reasonable certainty; (3) list signed by T (4) will refers to the list and will is valid |
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What is the doctrine of acts of independent significance?
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Some items of class or property change in and of themselves. Law allows for them to change between time of execution and T's death. Whatever meets the description at T's death is what passes to beneficiary.
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C&CE of an an agreement or K must be found where?
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(i) in the will;
(ii) through extrinsic evidence; or (iii) by clear implication from the surrounding circumstances |
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What is the elective share of a SS
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If D survived by descendants (whether or not those of SS) - SS gets 1/3 augmented estate
If not so survived, SS gets 1/2 |
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How long does a SS have to file notice of election?
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6 months after will admitted to probate or if no will, administrator of intestate estate appointed
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How is the augmented estate computed?
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Probate estate + transfers to SS + certain lifetime gifts and non-probate transfers to third-parties (STRINGY LEGS)
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STRINGY LEGS
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Strings-attached lifetime transfers (where D retained right to income, revoke, consume, invade or dispose of property)
Life insurance on D payable to TPB Employee death benefits Gifts in excess of $10k for last 5 years Survivorship estates |
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Who may bring a will contest?
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Interested party (person w/economic interest that would be adversely affected by will's probate)
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Burden of proof w/r/t testamentary capacity?
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On proponent, unless witnessed will executed in compliance w/statutory formalities
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Test for capacity: did D
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(1) understand the nature of his act
(2) know the extent of his wealth (3) know the natural objects of his bounty (4) able to interrelate the above |
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Burden of proof w/r/t undue influence
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On contestant
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To show undue influence:
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1. suspicious circumstances
2. conduct on part of will beneficiary that demonstrates desire to overcome the mind & will of T and 3. that provisions in will are result of B's conduct |
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Presumption of undue influence where:
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Contestant shows
1. T & B were in a confidential relationship (trust, priest, doctor, guardian, attorney) 2. benefit to B 3. suspicious circumstances |
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Latent Ambiguity and Evidence allowed for clarification |
Latent Ambiguity= the plain meaning of the ambiguity can apply to multiple subjects ("my favorite nephew"...which one?) Extrinsic evidence is admissible to cure the ambiguity, including facts and circumstances about the T, family, claimants, etc. If the latent ambiguity cannot be cured, it fails for uncertainty |
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Patent Ambiguity and Evidence allowed for clarification |
Patent Ambiguity= where the language in the will is capable of more than one interpretation (I give twenty-five dollars to Jon ($25000)). Extrinsic evidence, including facts and circumstances of the T and family, declarations of intent to 3rd parties, etc. are admissible. |
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Powers of Appointment |
Testator gives someone the power to "pick someone" to receive under the will, so as to make decisions as to which person best deserves or needs the gift/remainder. Testator=donor of the power to appnt Donee= receiver of the power |
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General Power of Appointment |
The donee of the power may appoint herself, her estate, or her creditors, in addition to whomever else she may desire. Donee's children take in default of appointment under intestacy Note: If the donor's will states that the donee must specifically reference the donor's instrument, the power of appointment is not exercised under a residuary clause. |
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Special Power of Appointment |
The donee may not appoint to himself, his creditors, or estate, but is limited to either a defined class (X's descendant) or everyone but the donee/his estate/creditors. |
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General Reference of a Power to Appointment that Requires Specific Reference |
A general reference to a power ("all my property, including any property over which I may have a power of appointment") is not sufficient for a power of appointment that requires a specific reference (all my property, including the property over which I have the power of appointment in X's will, paragraph 123). |
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Contracts Relating to Wills |
Although Wills and Ks are completely separate, each following its own substantive law, if a will does not comply with provisions of a valid K, there may be a valid action under breach of K. Damages or a constructive trust may be imposed if a breach of K exists. |
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The Elective Share and Beneficiaries' Contribution |
If an elective share is made, all beneficiaries contribute ratably. |
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Exceptions to the Augmented Estate Calculation JOG |
Joinder: transfer with the spouse's joined (written consent) Old Transfer: Irrevocable transfer to 3rd parties before 01.01.91.... Gifts to Deceased Spouse from someone other than surviving spouse (it is considered separate property) |
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No Contest Causes |
If a person challenges the will and fails, they are treated as predeceasing the testator and take nothing. Virginia Rule: IT IS UNSETTLED. Majority Rule: No contest clauses are fully enforceable BUT if a contestant has PROBABLE CAUSE to contest, the clause will be held inapplicable |
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Jurisdiction for Probate |
Venue for probate of the decedent's estate is the county where the decedent was domiciled at the date of death. |
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Appoint of Executors |
To qualify as the executor, the Executor must 1) Take an Oath 2) Faithfully Perform 3) Post Bond |
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Priority of Appointment of Administrators |
1. Spouse who is the sole distributee 2. Spouse who has the written consent of all of decedent's competent children 3. Any distributee who is the sole heir 4. Any distributee who secures written waivers from all other competent distributees. After 30 days, any distributee may be appointed as the clerk of the court sees fit. |
