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130 Cards in this Set

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  • Back
Define Probate
The court proceeding in which:

1. It is judicially determined that a decedent left a validly executed will (or that the decedent died w/o a will and her intestate heirs are determined) AND
2. A personal representative is appointed to administer the decedent’s estate.
What is the personal representative of an estate called if they are named in the will?
What is the personal representative of an estate called if they are appointed by the court?
Define Heirs
People who take by intestate succession
Define Beneficiaries
People who take under a will
IN what situatoins do the descent and distribution statutes apply to an estate?
1. Decedent left no will (or will wasn’t validly executed),
2. Will does not make a complete disposition of the estate (partial intestacy), OR
3. An heir successfully contests the will, and the will is denied probate

(Intestacy rules are also invoked in Qs involving omitted spouse or pretermitted children)
What is it called when a will does not make a complete disposition of the decedent's estate?
Partial intestacy
What is the distribution if D dies intestate and leaves a surviving spouse? WIth kids? With kids from a former marriage?
1. If D dies and leaves a surviving spouse with children, all of whom are the D’s & SS’s children, the SS takes the ENTIRE ESTATE

2. If D dies and leaves an SS, and kids who are the kids of the D from a former marriage, the SS takes 1/3, and the remainder is distributed evenly among the kids.

3. Collateral kin never inherit. If D is survived by SS and no other descedants, the SS takes the entire estate.
What are the distribution rules is a spouse has abandoned the decedent? What's the RULE?
A Spouse is DQed from inheritance and all other rights if he or she willfully deserts or abandons the decedent AND that desertion ctnes until the other spouse’s death.
What are the three key things to discuss in any question involving a decedent and a surviving spouse?
After discussing the distribution, talk about REF:

1. Residence
2. Exempt personal property up to $15K
3. Family allowance – amount needed for maintenance for one year. Can’t exceed $18K unless there’s petition for more.
When is a surviving spouse entitled to the residence of the decedent by right?
If - BUT ONLY IF - the SS claims an elective share OR if D died intestate survived by descendants by a former marriage, SS can live in the principal family residence w/o charge for rent, taxes, insurance, until spouse’s rights in the principal residence have been determined and satisfied.
When is a surviving spouse entitled to exempt personal property? How much?
Exempt personal property up to $15,000 – e.g., cars, household furniture, furnishings, appliances, personal effects.

If there isn’t $15K worth of exempt items in the estate, the spouse is entitled to cash or other assets to the extent necessary to make up the $15K.
What is a family allowance, and when is it provided? How much?
Family allowance is the amount needed for maintenance and support for one year (while the estate is in administration). Amount of the family allowance must be “reasonable”. It can’t exceed $18K unless there’s a petition for more.
What is the homestead allowance?
$15K. available if SS gets < $15K from D’s estate
How does inheritance by descendants work in Virginia? (name of distribution rule, and how it works)
Per Capita with Representation -

at the first generational level w/ living taker, give one share for each family line.
How is an estate distributed if the D dies intestate and is not survived by a spouse OR descendants?
Everything to parents or surviving parent

If not survived by parents, to descendants of parents

If not survived by parents or descendants of parents, ½ to maternal grandparents if living; otherwise to their descendants. ½ to paternal grandparents in same manner.

NO LIMIT on degree of kinship needed (no laughing heirs statute)

If no living relations, to kin of D’s last deceased spouse under above rules
Can half bloods inherit? How much?
Half-bloods inherit half as much as whole-bloods.
Do adopted children have inheritance rights? Explain.
full inheritance rights from adoptive family & vice versa

Adopted child has no inheritance rights from natural parents or their kin.

EXCEPTION: child adopted by spouse of natural parent, inheritance rights from living natural parent, adoptive parent, & family of deceased biological parent.
Can a child born out of wedlock inherit from their mother?
Yes - full inheritance rights from mom and mom’s kin (& vice versa).
Can a child born out of wedlock inherit from their father?
Can inherit from biol. father, but only if 1 of these tests is met (“MAC”):
a. Marriage of mother and father
b. Father Adjudicated as father in a filiation proceeding
c. Clear & convincing evidence that father is a “BAD CAT”

i. Birth certificate – F consent to be named father on birth cert.
ii. Admits paternity in court or under oath
iii. DNA tests/medical evidence establish he is father
iv. Cohabitation w/ mother in 10 months before child’s birth
v. Allowed child to use his surname; OR
vi. Tax return, claimed child as dependant

Affidavit asserting paternity/action to establish paternity must be filed w/in 1 yr after man’s death for c, d, e, f above.
If a child born out of wedlock dies intestate, can the biological father inherit?
ONLY if there is:
a. marriage (or attempted marriage)
b. he was adjudicated father in a filiation proceeding, OR
c. paternity shown under one of the C&C tests ONLY if the man:
i. openly treated child as his own, AND
ii. did not refuse to support the child
What happens if there are 2 deaths in quick succession, and the second one to die was a descendant of the first to die?
120 hour rule

2nd to dies must survive D for 120 hours to be an heir and to inherit

if heir/benef. dies w/in 120 hours of D, distribute as if they predeceased D.
To what kinds of accounts/interests/instruments does the 120 hour rule apply?
life insurance

employee death benefits

P.O.D. accounts

Joint tenancies & tenancies by the entirety (right of survivorship not triggered if A and B die w/in 120 hours of each other.)
What happens if a D made a lifetime gift to an heir?
Lifetime gift to a child is presumptively an ADVANCEMENT of the child’s intestate share

It is taken into account in distribution of intestate estate.

Calculation: add up net value of estate of D + value of gifts. Divide estate among children; subtract amount of gifts to each individual child.
What happens if a T made a lifetime gift to a beneficiary of their will?
At COMMON LAW, a lifetime gift to a beneficiary named in an earlier will was presumptively in partial (or total) "satisfaction of the legacy."

a. the gift was declared so in a CONEMPORANEOUS WRITING** by the donor


b. Declared as such IN WRITING BY DONEE


c. the will provides for deduction for lifetime gifts
What is disclaimer? Is it allowed?
A beneficiary may disclaim an interest that otherwise would pass to her from the D's estate, with the result that the disclaimed interest passes as though the disclaiming party predeceased the decedent.
What are the requirements for a valid disclaimer? What are the time limits on disclaiming?
2.SIGNED and
3.DELIVERED to personal representative of the estate

There is no time limit within which one must disclaim.
What must be done if a beneficiary wants to disclaim real property?
Real property: the disclaimer instrument must be recorded in county where land is located
Can an income beneficiary of a spendthrift trust disclaim her interest?
Yes. The spendthrift restriction does NOT apply until a beneficiary accepts the benefit.

(estoppel applies once the beneficiary treats it as having been accepted (eg, takes a distribution))
Why would someone want to disclaim an interest?
1. avoid gift taxes (disclaimer must be filed w/in 9 MONTHS after D’s death for this to work)
2. avoid creditor’s claims (except federal tax liens)
What are the requirements for a valid execution of a will? (5)
i. T must be 18 years old (unless emancipated)


1. signed by testator (proxies allowed)

2. T must sign (or acknowledge an earlier signature) in presence of 2 witnesses, present at the same time

3. need 2 attesting witnesses

4. each attesting witness must sign will in T’s presence (but don't need to be in each other's presence for this part)
What are the requirements for the execution of a valid codicil?
The same as for the execution of a valid will.
Does the T have to sign at the foot of the will?
Do witnesses have to know that they are witnessing the signing of a will?
Can a T have help signing his will, and have the will still be validly executed?
can have help signing will. Still valid if it’s his volitional act.

Any mark intended as T’s mark sufficient, satisfies signature requirement
Can one person be both a beneficiary and a witness to a will execution?

VA ABOLISHED interested witness rule; can be beneficiary AND witness
Does VA recognize holographic wills?
What is a holographic will?
handwritten, signed, UNWITNESSED wills WHOLLY in T’s handwriting

(Fill in blank wills are VALID holographic wills in VA)
Does the signature on a holographic will have to be at the foot of the will?
No, but it helps.

Signature doesn’t have to be at end of will, BUT T’s name appearing at beginning or in body DOES NOT SHOW FINALITY OF INSTRUMENT

if doc. ENDS w/ “This is my last will and testament,” but signed at beginning, this is ok. (Shows finality of instrument)
Does VA recognize oral wills?
VA recognizes oral wills ONLY for persons serving in armed forces or mariners at sea, and then only for personal property.
If a will is being challenged, who has the B of P?
the will proponents.

(to show devisavit vel non – will or no will)
is a judge usually involved in probate? explain.
Most probates are ex parte = no notice to interested parties + no judge (clerk is involved)

Some probate is inter partes = full judicial proceeding + notice to interested parties
Are self-proved wills allowed? What are they? How are they probated?
If it’s a self-proved will, no need to call attesting witnesses (= affidavit reciting facts of due execution acknowledged by T and sworn to by witnesses before notary public)
How long do potential will challengers have to challenge a will after it has been admitted to probate? Who can challenge?
Any interested party can challenge after admitted to probate
1. 6 months to appeal to CC OR
2. one year to file bill in equity to impeach or establish the will
How is a holographic will proved/probated?
Holographic will - proved by testimony of 2 disinterested persons that will is WHOLLY in T’s HANDWRITING
What is the time limit within which a will must be filed? Exceptions?

if real property involved, a BFP is protected UNLESS will is probated w/in 1 year
How many witnesseses have to testify as to valid execution of a will?
Where will a will be probated if the T dies in another state? What if the T owns real property in VA?
If T dies in another state, will probated there, but owns real property in VA:
certified copy of will and order entering it to probate must be filed in the county where the real property is located
What is the general rule for what happens if a beneficiary dies during T's lifetime?
Gift LAPSES when beneficiary predeceases T, UNLESS the Virginia anti-lapse statute applies
When does the anti-lapse statute apply?
1. the predeceasing beneficiary is a grandparent or descendent of a grandparent of the T


2. T leaves descendants who survive the T by 120 hours.
What happens to a gift if it lapses?
it falls into the residuary estate
If a gift lapses, and the residue is devised to several people, 1 or more of whom are dead & can’t take under anti-lapse statute, how is the residue distributed?
the other residuary benefs take the residuary estate, in proportion to their interests in the residue
What is the class gift rule?
if a member of the class predeceases T, class members who survive T take
When does a class close for class gift purposes? What is this rule called? Exceptions?
Rule of Inconvenience (aka Class Closing Rule):

later-born class members are excluded as of time that SOME class member is entitled to a distribution

For outright gift by will, the class closes at T’s death

EXCEPTION: gestation principle. posthumous child born w/in 10 months after parents’ death can take
Which rule wins out -- class gift rule or anti-lapse?
Anti lapse is always superior.

(ii. class gift rule gives way to anti-lapse statute when predeceasing class member is grandparent/descendant of grandparent of T, and leaves descendants who survive T.)
What happens if T gets married after executing a will, and doesn't change it before s/he dies?
OMITTED SPOUSE statute applies

OS takes INTESTATE SHARE, UNLESS it appears FROM THE WILL (no extrinsic evidence) that the omission was intentional.
What happens if T gets divorced after executing a will, and doesn't change it before s/he dies? Subrules?
Divorce or annulment REVOKES ALL GIFTS AND FIDUCIARY APPTMTS in favor of former spouse (as if former spouse predeceased T)

1. divorce rule does NOT revoke bequests to relatives of a former spouse!
2. Divorce rule DOES apply to life insurance policies & IRAs
3. DOES NOT APPLY to ERISA pension plans
4. DOES APPLY to joint/survivor bank accts- REVOKES right of survivorship
5. JT of real property: divorce SEVERS right of survivorship. TICs – ½ each.
6. Divorce rule DOES NOT APPLY if separated. Must be divorced/annulled.
What happens if T has a child after executing a will, and doesn't change it before s/he dies?

Statute applies to children born or adopted AFTER execution of will

Pretermitted child takes their intestate share, UNLESS they are aprovided for in the will
What happens if there is a pretermitted child, and also other children who were alive at the time of the execution of the will? What does the pretermitted child take?
pretermitted child takes LESSER amount of:

(1) intestate share OR
(2) the value of bequests to other children

If T had several other children, and will bequeathed different amounts to them, pretermitted child takes value of LARGEST gift.
How can a will be validly revoked?
2 possible ways:

1. subsequent testamentary instrument executed with proper formalities OR

2. physical act (cutting, tearing, obliterating, canceling, burning, other destruction)
Can there be revocation of a will by proxy? If yes, how?

Valid revocation by proxy = at T’s REQUEST + in T’s PRESENCE
What is the presumption if a will was last seen in T’s possession, but not found at death?
Presumption: T revoked by physical act.
What is the presumption if a will was last seen in T’s possession, but found mutipated after T's death?
presumption = T did the mutilating (e.g., revocation by physical act)
What is the presumption if T had no access to their will, or if will last seen in the possession of s/o adversely affected by its contents, and the will is either not found or found mutilated after T's death?
Presuption of revocation.

Evidence admissible to rebut presumpt. of revocation - need Clear and Convincing evidence T did NOT intend to revoke.
Can a revoked will be revived?

To revive, must be resigned & witnessed, OR have republication by codicil
What happens to a former will if a new will is executed?
Rule: former will revoked when 2nd will (w/ revocation clause) is executed.
What can be done if a revocation was premised upon, conditioned upon, or dependent upon, a mistake of law or fact as to the validity of another disposition?
Can apply the Doctrine of Dependent Relative Revocation.
How does the doctrine of dependent relative revocation work? When is it applied.
It permits a revocation to be disregarded when that revocation was premised upon, conditioned upon, or dependent upon, a mistake of law or fact as to the validity of ANOTHER disposition.

Effect: disregard the act of revocation and probate that will. Only used if it will effectuate the T's intent.

DRR not applied unless resulting disposition comes closer to what T tried to do than intestate distribution. (i.e., DRR NOT used if defeats T’s intent)
How can a destroyed will be probated (eg, if DRR is applied)?
Destroyed will can be probated if meets 3 part PROOF OF LOST WILLS test:

1. Due execution must be proved
2. Cause of will’s non-production must be proved
3. Contents of the will must proved by clear and convincing evidence (Xerox)
What happens if there are 2 validly executed wills, and the latter doesn’t mention revocation of former?
Read the documents TOGETHER to extent possible. (E.g., read second as a codicil)

if 2nd is wholly inconsistent w/ 1st, there is REVOCATION BY IMPLICATION.
Are partial revocations by act permitted?
What happens if words are added to a will after its execution?
Words added to a will later are disregarded as unattested words.

BUT, CAN have a valid holographic codicil. (What’s added needs to be complete thought in handwriting – otherwise not complete codicil.)
Can interlineations and cross outs be made in a will? When?
Interlineations/cross-outs CAN be validly made in writing before will is signed

If entire will holographic, and cross-outs/interlineations are made (after signing), the changes are valid if evidentiary test met: 2 people testify it’s wholly in T’s hand
What is a specific bequest
Specific bequest: “I devise blackacre to my son John.”
What happens if, after all claims are paid, there remain inadequate assets to satisfy all gifts made in a will?
ABATEMENT is used.

Abatement Rule: absent contrary provision -

debts, claims, etc. are first paid out of personal property in the following order:
1. intestate property, if there is a partial intestacy
2. residuary assets
3. general and demonstrative legacies
4. specific bequests
5. If still debts/claims after this, real property abates in same order.
What is a general legacy
General legacy: “I bequeath $10K to my nephew Ned.”
What is a demonstrative legacy
Demonstrative legacy: general amount from a specific source.
How are estate taxes appoirtioned among beneficiaries?
Estate taxes equitably apportioned among estate beneficiaries, each reduced pro-rata.

EXCEPTION: gifts that qualify for marital or charitable deduction not subject to apportionment (b/c these gifts do not generate tax).
What happens if a specific gift of property is not owned by T at death?
The original beneficiary of gift takes nothing

In VA, doctrine of equitable conversion has been rejected for property conveyed over time by K. Beneficiary takes T’s remaining interest in property – the note and security interest (vendor’s lien)
What happens if a demonstrative legacy is not owned by T at death?
RULE: Ademption applies ONLY to SPECIFIC gifts

If demonstrative gift is no longer in estate at death, beneficiary still gets $ amount bequeathed. Other assets sold to satisfy amount, if needed.
What happens if T bequests stock to a beneficiary, and before their death, there is a stock split? A reorganzation? A merger or takeover?
beneficiary takes any ADDITIONAL securities of the SAME ENTITY that are the result of:

a. action initiated by entity (eg, stock split, stock dividend, reorg), other than securities acquired by the exercise of a stock option


b. securities of another entity resulting from a takeover or merger.
What happens if a specific gift bequeathed in a will is encumbered (eg, with a mortgage/lien)?

Liens on specifically devised property are EXONERATED from the residuary estate.

benef. can demand note be paid off to exonerate lien; takes land free & clear of mortgage
can an extrinsic document, not present when a will was signed (and thus not part of the duly executed will) be included as part of the will? How?

The extrinsic document can be incorporated by reference into the will IF: (“IDE”)

1. the writing was in existence when the will was executed (signed/witnessed),

2. the will shows intent to incorporate the writing on its terms, AND

3. the will describes the writing with reasonable certainty
Can extrinsic documents made after a will's excution EVER be made part of the will?
YES - there are 2 recent statutory exceptions to incorporation by reference:

1. A will/trust may refer to written statement/list that disposes of TANGIBLE PERSONAL property not specifically disposed of by the will. The list must be SIGNED by T + DESCRIBE the property w/ reasonable certainty. It can be written before OR after the will and can be altered at any time!

2. If will, trust, power of attorney gives a fiduciary/ agent power to make discretionary distributions or power to make health care decisions, a letter or memo re: how power should be interpreted can be incorp. by reference. Such a letter or memo MUST BE:
a. Signed and notarized
b. can be prepared before OR after will, trust, power of attorney executed.
What is the doctrine of acts of independent significance?
Will may dispose of something by reference to acts/events that have significance apart from their effect on the dispositions made by the will. The act must have lifetime significance/motive other than providing the gift.
Can a will bequest "the contents of my hope chest"? If so, under what doctrine?
“the contents of my hope chest” – same result as acts of independent significance, EXCEPT title documents. Deeds, stock certificates, bank passbooks, etc.

Tangible property and cash ONLY can pass under gift of CONTENTS!
Is extrinsic evidence admissible to overturn the facial meaning of a will?

PLAIN MEANING RULE = Absent ambiguity, extrinsic evidence NOT ADMISSIBLE to overturn plain meaning of a will.

Absent suspicious circumstances, it is conclusively presumed that T read the will and intended its contents.
What is a latent ambiguity in a will?
A misdescription
What is a patent ambiguity in a will?
A mistake that appears on the face of the will
What happens if there is a latent ambiguity in a will?
Extrinsic evidence IS ADMISSIBLE to cure latent ambiguities ("admit it all")

Facts and circumstances evidence allowed

Evid. of T’s declarations of intent to 3rd parties allowed

If extrinsic evidence does not cure ambiguity, the gift FAILS b/c there's no ascertainable beneficiary.
What happens if there is a patent ambiguity in a will?
Extrinsic evidence IS admissible to cure ambiguity (“admit some of it”)

Facts and Circumstances evidence IS allowed

Evid. of T’s declarations of intent to 3rd parties is NOT ALLOWED.

BUT evid. of things said to T’s attorney IS ADMISSIBLE!
Can an attorney be held liable for malpractice for negligence in drafting a will?


duty ONLY to client who CONTRACTED for lawyer’s services

only the client can sue the attny for negligence, and the client is dead
What is included in a besquest of "all my property?"
Includes intangible property like stocks & bonds, bank accounts, etc., as well as tangible personal property.
What is a power of appointment?
= authority created in a person (DONEE) enabling her to designate, w/in limits prescribed by creator of the power (DONOR), the persons who take property and manner in which they take it.
Who takes if the donee of a power of appointment fails to exercise the power?
Takers in default of appointment
What are the 2 kinds of powers of appointment? Describe each.
(“to anyone, including herself, or her estate, or her creditors")

SPECIAL TESTAMENTARY POWER: limitation on who donee can appoint to. Can appoint to anyone, but NOT to the donee, her estate, or her creditors.
How does a power of appointment have to be exercised in order to be valid? Exceptions?
Power of appointment must be EXPRESSLY EXERCISED (in donee’s will)

EXCEPTION: if donee attempts to dispose of property as though it were her own, power of appointment is EXERCISED BY IMPLICATION

EXCEPTION: “blanket exercise of the power” is ok (Eg, “all my property, including any property over which I may have power of appointmt, to X”)
What is a joint will? Are they permissible?
A will of two or more people executed on the same piece of paper. Yes, permissibe.
how are joint wills admitted to probate?
Admissible to probate on death of each of Ts as if there were separate wills
Are joint wills considered contractual?
Joint will not a contractual will, UNLESS clear & satisfactory proof of K
a. in the will OR
b. from extrinsic evidence OR
c. by clear implication from surrounding circumstances
What are reciprical wills? Are they contractual?
Reciprocal wills containing mirror provisions have been held contractual based on attorney’s unrebutted testimony that this was what spouses intended
What is the process for analyzing a problem if it involves a contractual will?
If a will is held by a court to be contractual:

FIRST, apply wills law (admit 2nd will to probate)

SECOND, apply K law (impose constructive trust in favor of the beneficiary of K will)
Why does it mater if a will is contractual or not?
A contract to MAKE a will is irrevocable by the survivor after the death of one of the parties to the K. revocation is a breach of K, and beneficiaries can enforce the K in equity.
What are non-probate assets? (basic definition)
= Interests in property that are NOT SUBJECT TO DISPOSITION BY WILL OR INHERITANCE, and that DO NOT pass through a person’s probate estate for purposes of administration.
List some common non-probate assets
1. property passing by right of survivorship (joint bank accounts, tenancy by the entirety, TOD and POD transfers)

2. property passing by contract (joint bank accts, life insurance, employee benefits, etc)

3. property held in trust where terms of trust set out beneficiaries - includes revocable trusts

4. property over which the decedent had a power of apptmt

If non-probate asset governed by K (eg, life ins), K governs change of beneficiary.
What is the elective share? (basic definition)
If the D was domiciled in VA at the time of death, the SS has the right to claim a statutory share of the D's estate.
What is the amount of the elective share?
1. If D is survived by descendants, SS gets 1/3 of the augmented estate

2. If D is NOT survived by descendants (no kids), SS gets ½ of the augmented estate.

(Also entitled to interest at 6%, from the date of death until ES is satisfied)
Summarize the key rights of a surviving spouse:
1. Omitted spouse – spouse marries T after execution of T’s will; takes intestate share of D’s estate
(= 1/3 if T was survived by descendants
= 100% if T was not survived by descendants)

2. Statutory Rights – “REF”

3. Elective Share Statute – If D domiciled in VA at time of death, SS has right to claim statutory share of the D’s estate. Available for both testate & intestate estates. protects spouse against disinheritance; SS takes at least min. amt. of estate
Which is usually larger: a SS's intestate share, or a SS's elective share?
Elective share ALWAYS bigger than intestate share UNLESS augmented estate includes large non-probate transfers
What is the procedure for claiming the elective share?
Spouse must appear in person or file notice of election w/in 6 months after the will is admitted to probate

if no will, then w/in 6 months of the apptmt of an administrator

HOWEVER if suit is brought to construe will/determine value, court can on motion extend time (not to exceed 90 days after settled)

If spouse is incapacitated: COURT can make an election for the spouse

SS is DQed from ES if willfully deserted or abandoned D
How is the ES satisfied (asset/$-wise)?
All beneficiaries of estate contribute pro rata to satisfy elective share.
What happens if the SS dies before they elect their ES?
The right to elect is personal to the surviving spouse; if spouse dies before this happened, the right of election dies with him
Which is usually larger: a SS's intestate share, or a SS's elective share?
Elective share ALWAYS bigger than intestate share UNLESS augmented estate includes large non-probate transfers
What is the procedure for claiming the elective share?
Spouse must appear in person or file notice of election w/in 6 months after the will is admitted to probate

if no will, then w/in 6 months of the apptmt of an administrator

HOWEVER if suit is brought to construe will/determine value, court can on motion extend time (not to exceed 90 days after settled)

If spouse is incapacitated: COURT can make an election for the spouse

SS is DQed from ES if willfully deserted or abandoned D
How is the ES satisfied (asset/$-wise)?
All beneficiaries of estate contribute pro rata to satisfy elective share.
What happens if the SS dies before they elect their ES?
The right to elect is personal to the surviving spouse; if spouse dies before this happened, the right of election dies with him
What is included in the augmented estate? (generically)
Augmented estate includes net probate estate PLUS certain transfers that benefit third persons, PLUS all donative transfers for the benefit of the spouse
What does the augmented estate include (specificallY)
Elective share applies to property owned & passing at death by will/intestacy, and:

1.TRANSFERS TO THE SPOUSE - any lifetime transfer to SS, including pre-marital gifts; non-probate transfers in favor of spouse (joint & survivor bank accts, joint tenancies, life insurance, employee death benefits, etc)
exception: tangible personal property: eg, bday presents

rule for survivorship accounts: rebuttable presumption = each spouse furnished ½ of consideration for property’s acquisition; ½ of value included in augmented estate)

2. TRANSFERS TO 3RD PARTIES -certain lifetime gifts and non-probate transfers that benefit third parties: “STRINGY LEGS”
i. Strings-attached lifetime transfers - Transfers where D retained right to income, power to revoke, or to consume, invade, dispose of property.
ii. assets in revocable trusts
iii. Totten trust bank account
iv. Life Insurance paid to a 3rd party by reason of D’s death
v. Employee death benefits (other than Social Security) under a retirement plan
** = BUT NOT Virginia Retirement System OR Group Term Life Ins.
vi. Gifts in excess of $10K made w/in the last 5 years
vii. Survivorship estates (joint/survivor bank accts, JT, etc)

a. “JOG” (“stringy legs don’t jog”)
i. Joinder (transfers with spouse’s joinder or written consent)
ii. Old Transfers (irrevocable transfers to third parties (other than transfers to the surviving spouse) before Jan 1, 1991
iii. Gifts to deceased spouse from s/o other than SS
How is the elective share CALCULATED?
1. Add up total augmented estate using “stringy legs don’t jog”

2. 1/3 of that # = elective share.

3. Elective share - anything that passed into SS’s outright ownership = net elective share

4. amount subject to contribution = total augmented estate - anything that passed into SS’s outright ownership

5. net elective share/amount subject to contribution = % that all beneficiaries must contribute ratably (everyone’s gifts reduced by that %)

6. For extra points, mention REF – SS ALSO entitled to these rights
WHO can contest a will?
ONLY interested parties can challenge a will = persons with an economic interest that would be adversely affected by the will’s probate
i. Heirs (they want an intestate share)
ii. Legatees in an earlier will
What is the test for testamentary capacity, and when is the test applied?
4 point test for capacity – Did T have sufficient capacity to: (“NOVU”)

1. understand nature of the act? (eg, was writing a will instead of riding a bike)
2. Know nature, character, and approximate value of her property?
3. Know natural objects of her bounty?
4. Understand the disposition she was making?

Evidence of T’s capacity or lack must relate to circumstances at time will was executed, or shortly before/thereafter.

iv. Mere old age, physical frailty, sickness, failing memory, of vacillating judgment are NOT inconsistent with testamentary capacity!
Who has the burden of proving testamentary capacity?
B of P on will proponents to show by prep of evid that T had capacity

a will executed in compliance w/ statutory formalities raises a presumption of capacity!
What is the test for undue influence?
B of P on the contestants
to prove the 3 part test to show undue influence:

1. existence and exertion of influence
2. effect is to overpower the mind and will of the T
3. product is a will that would not have been executed BUT FOR that influence
Are any of the following by themselves adequate to show undue infliuence?

1. mere opportunity to exert influence
2. Mere susceptibility to influence due to illness, age, etc.
3. Mere fact of unnatural disposition
What is the special rule that leads to a presumption of UNDUE INFLUENCE? When is the test for this applied?
SPECIAL RULE (apply after 3 part undue influenjce test) -If can prove by C&C evidence that:
1. T was enfeebled in mind and body AND
2. the will was procured by one in a confidential/ fiduciary rapport AND
3. T had previously expressed contrary intent in disposing of property

then there is a PRESUMPTION of undue influence. (rebuttable)
What are no contest clauses, and are they valid in VA?
No contest clauses = provides any person who contests will forfeits interest under will.

Majority Rule: fully enforceable UNLESS contest was made in good faith w/ PC

Minority rule: fully enforceable even w/o PC.

VA RULE: argue BOTH WAYS b/c we DON’T KNOW YET! VA probably does not recognize the PC exception. Old opinion suggests strong preference for minority view

action seeking interpretation of a will’s terms is NOT a “contest” that triggers a no-contest clause!
Where does venue lie for probate/will challenges?
VENUE lies in city/county where, at death, D had mansionhouse or known place of residence.

If person becomes patient a nursing home/similar institution, place of legal residence is presumptively same as it was BEFORE moving into the nursing home
What are the qualifications for an executor?
oath to faithfully perform duties + bond to secure performance
What are the rules for non-residents individuals and banks re: acting as personal reps?
i. nonresident of VA CAN serve as a personal rep; must appoint resident agent
ii. nonresident bank CANNOT serve as executor or testamentary trustee
iii. nonresident bank CAN serve as trustee of IV trust; can be recipient of a pourover gift from settlor’s will.
Who has priority for appointment as personal representative?
First 30 days after D’s intestate death, these people have priority for apptmt, in this order:

i. Spouse who is sole distributee (eg, b/c D wasn’t survived by descendants);

ii. Spouse who has written consent of ALL the decedent’s competent children;

iii. Any distributee who is a sole heir;

iv. Any distributee who has a written waiver from all other competent distributes.

After 30 days, any distributee may be appointed “as clerk of court sees fit”.