Wills

Front 1

Intestacy Succession
-When is it appropriate?

Back 1

(1) When decedent left no will
(2) The decedent’s will is denied probate
(3) The decedent left a will but does not make a complete disposition of the estate. (partial intestacy)

Front 2

Intestate Share of Surviving Spouse
-If not survived by descendents

Back 2

Entire Estate

Front 3

Intestate Share of Surviving Spouse
-Survived by descendents

Back 3

If the D was survived by descendents who were also those of the surviving spouse, Spouse gets entire estate.
If the D has at least one descendant who was not that of the surviving spouse, Descendants get 2/3 and SS gets 1/3

Front 4

Intestate Share of Surviving Spouse
-When is spouse disqualified from inheritance

Back 4

If spouse willfully deserts or abandons the other spouse and the desertion continues until the deserted spouses death.

Front 5

Intestate Shares of Other Heirs
-Descendants

Back 5

They take a per capita share with representation
-The share of the estate that does not pass to the SS passes to the descendents. Each living person at first generational level takes a per capita share. The share of each deceased person passes to his issue

Front 6

Intestate Shares of Other Heirs
-Not survived by spouse or descendants

Back 6

The estate passes to the decedent’s parents or surviving parent (unless desertion)

Front 7

Intestate Shares of Other Heirs
-Not survived by spouse, descendants, parents.

Back 7

The estate passes to the descendant’s parent’s descendants. (Brothers or sisters)

Front 8

Intestate Shares of Other Heirs
-Not survived by spouse, descendants, parents, or descendants of parents.

Back 8

½ to maternal grandparents (or descendants), ½ to paternal grandparents (or descendants). If there are none on one side, it goes to the other side.

Front 9

Intestate Shares of Other Heirs
-“Laughing heir” issue

Back 9

VA has no laughing heir statute. No one is barred from inheriting because of being remotely related to decedent

Front 10

Intestate Shares of Other Heirs
-What if no surviving relatives?

Back 10

Then the estate passes to the kindred of the decedent’s deceased spouse. Only passes to the commonwealth if there are no heirs of the decedent or his spouse.

Front 11

Intestate Shares of Other Heirs
-Will provisions attempting to disinherit.

Back 11

Not effective. In order to disinherit, a testator must completely dispose of their assets by will.

Front 12

Intestate Shares of Other Heirs
-Adopted children

Back 12

Adopted children inherit through their adopted parents.
No right of inheritance through their biological parents, EXCEPT when a child is adopted by a spouse of biological parent.

Front 13

Intestate Shares of Other Heirs
-Stepchildren and foster children

Back 13

Stepchildren and foster children who are not adopted have no right of inheritance.

Front 14

Intestate Shares of Other Heirs
-Nonmarital child (bastards)

Back 14

Bastards have full inheritance rights from her mother and mother’s kin.
Natural father is considered to be the parent of a nonmarital child only if
(1) Father married mother before or after the child’s birth OR
(2) It is established by clear and convincing evidence that
-The man openly cohabitated with the mother during her entire pregnancy
-The man consented to be named the father on the child’s birth certificate
-The man allowed the child to use his surname
-The man claimed the child as his on a tax return
-The man was adjudged the father in a paternity suit and ordered to pay child support
-The man admitted paternity in court or writing under oath
-Genetic tests establish paternity

Front 15

Intestate Shares of Other Heirs
-Assisted conception

Back 15

A child conceived in this way (in vitro, artificial insemination) is the child of a person who consented to being a parent in writing before conception (if born within that person’s lifetime, or within 10 months of their death)

Front 16

Intestate Shares of Other Heirs
-Posthumous child (decedent dies while child is in gestation)

Back 16

Takes as if he’d been born in the parent’s lifetime.

Front 17

Intestate Shares of Other Heirs
-Two lines of relationship

Back 17

A person with two lines of relationship takes only the large of the two shares.

Front 18

Common Succession Problems
-Surviving the decedent who dies intestate

Back 18

A person must survive the intestate decedent by 5 days in order to take as an heir.

Front 19

Slayer Statute
-What is it?

Back 19

A person convicted of (or shown by preponderance of the evidence) murder or voluntary manslaughter forfeits all interest in the decedent’s estate. Slayer is treated as if he predeceased the decedent.

Front 20

Slayer Statute
-Right of survivorship

Back 20

If one joint owner of a joint tenancy kills another, the killer loses the benefits of the right of survivorship and it’s converted into a tenancy in common, and the murdered person’s interest passes his will or intestacy.

Front 21

Slayer Statute
-Can anyone claim through the Slayer?

Back 21

Transferees, assignees, etc. may not. However, the decedent’s heirs may inherit because the anti-lapse statute applies.

Front 22

Slayer Statute
-Bona fide purchaser

Back 22

A bona fide purchaser is protected if he buys before the interests of the slayer have been adjudicated.

Front 23

Slayer Statute
-Constructive trust

Back 23

A constructive trust may be imposed on property received by a beneficiary or heir who participates in the killing of another (e.g., is an accessory after the fact).

Front 24

Advancement of Intestate share
-What is the presumption?

Back 24

In VA, a lifetime gift is presumptively an advancement to be taken into account in making an intestate distribution.

Front 25

Advancement of Intestate Share
-Evidence needed to overcome presumption

Back 25

The presumption of advancement may be rebutted by to affirmative proof that gift was not intended to be an advancement. (e.g. grantor’s statements)

Front 26

Advancement of Intestate Share
-Procedure if an advancement is found

Back 26

Any amount advanced is added to the net value of the estate, then the estate is distributed as it otherwise would be. The grantee has his share reduced by that amount. If the grantee has his entire share eaten up by the gift, he need not return the excess.

Front 27

Ademption by Satisfaction

Back 27

In VA, a lifetime gift to a will beneficiary is not treated as being in partial or total satisfaction of a legacy unless
(1) The testator declares in a contemporaneous writing that the gift was intended to satisfy a legacy
(2) the beneficiary acknowledges in writing that the gift is in satisfaction
(3) the will expressly states that legacies are to be reduced by such lifetime gifts

Front 28

General Requirements
-Age

Back 28

A testator must be 18 years old

Front 29

General Requirements
-Testamentary Instrument

Back 29

A will is testamentary instrument that been executed with certain formalities. Not operative until death of the testator.

Front 30

General Requirements
-Testamentary Intent

Back 30

For a will to be valid, the testator must presently intend that the particular instrument serve as his will.

Front 31

General Requirements
-Conditional wills

Back 31

Language that reads like a condition may be interpreted by the court a merely expressing the motive or inducement for making the will.
Factors cited by the courts holding that a will is unconditional include (1) execution of the will as an indication that decedent did not intend to die intestate and (2) the decedent’s preservation of the will

Front 32

Execution of Attested Wills
-General requirements

Back 32

(1) Signed by the testator
(2) Attested by two witnesses
(3) Testator signature must be in the presence of the two witnesses
(4) Witnesses must sign in the testator's (but not necessarily each other's) presence

Front 33

Execution of Attested Wills
-Testator's signature

Back 33

-Any mark will do as long as testator intends it to be his signature.
-Proxy signature is acceptable if done in his presence and at his direction

Front 34

Privity Rule

Back 34

In VA, only the client who contracted for an attorney’s services can sue for negligence. Beneficiaries can not sue.

Front 35

Attestation Clause

Back 35

Recites the elements of due execution
Raises a presumption that the will was validly executed and is prima facie evidence of the facts recited therein

Front 36

Self-Proved Will

Back 36

Instead of having witnesses testify, you can include an affidavit by the witnesses reciting all of the elements that the witnesses would testify to in open court and sworn before a notary public.

Front 37

Dispensing Power Statute
-When can formal requirements be dispensed with?

Back 37

Even if not executed in compliance with the formalities required, document will be an effective will if the PROPONENT can establish by CLEAR & CONVINCING evidence that the decedent intended that the document constitute
(1) The testator’s will
(2) A partial/complete revocation
(3) A codicil or modification of a will
(4) A partial or complete revival of a decedent’s formerly revoked will
DOES NOT EXCUSE COMPLIANCE WITH THE TESTATOR’S SIGNATURE REQUIREMENTS
Must bring petition within one year of decedent’s death with all interested parties made a a party

Front 38

Codicils

Back 38

Additions to an earlier will and are used to COMPLIMENT them, not revoke them in any way
-Must be executed with the same formalities as a witnessed will or a holographic will.
-New dispensing statute applies to validate codicils when the formalities are lacking (but again, signature requirement can’t be proven with c/c evidence)

Front 39

Holographic

Back 39

Must be:
(1) Entirely in the handwriting of the testator
-Can disregard typewritten text, but if will can’t be understood without it, the will is invalid.
(2) Must evidence testamentary intent by a writer who has a testamentary capacity.
-Signature must show finality of instrument (if not signed at end, must be some kind of closing statement) (Dispensing power can’t save this)

Front 40

Nuncupative Will

Back 40

VA recognizes oral wills for soldiers in actual military service and mariners and sailors at sea.
-Wills are valid for personal property

Front 41

Proof of wills in probate

Back 41

Burden of proof is on a WILL PROPONENT to show by a PREPONDERANCE OF THE EVIDENCE that the will was duly executed.

Front 42

Ex Parte Probate

No notice to interested parties

Back 42

If will is self-proved, no need to call attesting witness. If not, only one witness need testify if other is accounted for.
Within 30 days after Ex Parte probate, personal rep must give written notice of the proceeding to the decedent’s heirs and other interested parties
May be appealed to circuit within 6 months from the time the probate court order in entered

Front 43

Inter Partes Probate

Back 43

Full judicial proceeding with notice to interested parties and a right to jury trial
Court may require the testimony of the attesting witnesses even if the will self-proved

Front 44

Holographic Wills

Back 44

Two disinterested persons must testify that the will is wholly in the testator’s handwriting

Front 45

Will Probated in another state

Back 45

If a will is admitted to probate in another state and the decedent owned real and personal property located in VA, the will can be admitted to probate in VA by filing an authenticated copy of the will to probate.

Front 46

Revocation of Wills
-In general

Back 46

A person who has testamentary capacity may revoke his will at any time prior to his death
Even if a party validly contracts not to revoke a will, party can still revoke (though may be liable for breach of contract against his estate which would result in a constructive trust upon the beneficiaries)

Front 47

Revocation by operation of law
-Marriage following execution of will

Back 47

If a person marries after executing a will and the spouse survives the testator
Spouse takes an intestate share of the testator’s estate unless it appears from the will (or prenup) that the omission was intentional
Lifetime gifts and nonprobate transfers that benefit the spouse have no effect on the omitted spouse’s right to an intestate share.

Front 48

Revocation by operation of law:
-Divorce or annulment

Back 48

If testator divorced/annulled, all gifts and appointments (as executor, guardian, or trustee) in favor of the former spouse are revoked
If parties remarry, all provisions in favor of the former spouse are revived
Rule also applies to nonprobate transfers and extinguishes the right of survivorship in property held in that manner,
Does no revoke a beneficiary designation under a “qualified” ERISA plan.

Front 49

Revocation by Operation of Will:
-Pretermitted Child

Back 49

-Applies to children born or adopted after the execution of a will
-If T had no other children at the time the will was executed: the pretermitted child takes an intestate share
-If T had other children at the time the will was executed, the pretermitted child takes the lesser of :
(i) an amount equal to the largest bequest made to any of T’s children; OR
(ii) an intestate share
-So, if T had other children when will was made and left them nothing, the pretermitted child will take nothing.
-Lifetime Gifts/Insurance proceeds have no effect on pretermitted child’s entitlement
-Intestate share of a pretermitted child is FIRST taken from any portion of the estate not disposed of by will, NEXT taken proportionately from all beneficiaries under the will

Front 50

Revocation by Written Instrument

Back 50

A will may be subsequently revoked in whole or in part by a subsequently written will, codicil, or other writing executed with the same formalities as required for the execution a will
-Dispensing power statute also applies here
-If testator executes a second testamentary instrument that does not contain any express language of revocation of an earlier will, to the extent possible the two instruments are read together.
-BUT second instrument revokes the first to the extent of any inconsistent provisions (implied revocation)

Front 51

Revocation by Physical Act

Back 51

Will/Codicil can be revoked in whole/part by cutting, burning, tearing, cancelling, obliterating with the PRESENT INTENT and for the PURPOSE OF REVOCATION. (If you destroy it by accident, you can’t decide later that you want that action to serve as revocation).
VA permits revocation by another person, provided that the revocation is: (i) at the testator’s direction; and (ii) in the testators presence.

Front 52

Presumptions of revocation

Back 52

If a will that was last seen in the testator’s POSSESSION/CONTROL and cannot be found after the testator’s death, or found after death in mutilated condition:
It is PRESUMED REVOKED
Presumption can be rebutted with clear and convincing evidence

Front 53

Effect of revocation of Other Testamentary Instruments

Back 53

Act of revocation performed by the testator upon either copy revokes the will
BUT, destruction of an unexecuted copy of the will, accompanied by an intent to revoke, does not revoke the will.

Front 54

Proof of Lost, destroyed, or Suppressed will

Back 54

VA permits probate of a lost/destroyed will.
In addition to overcoming the presumption of revocation that may be raised by the will’s nonproduction, the proponent must prove by CLEAR & CONVINCING evidence that:
(i) the will was properly executed
(ii) the will was lost/destroyed
(iii) The will’s contents

Front 55

Alterations on the face of the will

Back 55

In most states, additions/alteration/interliniation made after the will has been signed and attested is ineffective without proper formalities
In VA, the dispensing power statute applies so these are given effect when there is clear and convincing evidence that the testator intended to modify the will

Front 56

No revival of revoked wills

Back 56

A will revoked by the express language of a later will cannot be revived by destroying the second will; Revoked will must be re-executed with full testamentary formalities
But, DISPENSING POWER may be invoked if there is clear/convincing evidence that the decedent intended a subsequent document/writing to be a revival of a formerly revoked will/portion of a will.

Front 57

Dependent relative revocation

Back 57

Applies when a testator revokes his will upon mistake of law/fact as to the validity of another disposition, AND, but for this mistake, he would not have revoked the will.
Should only be applied if the disposition that results from disregarding the revocation comes closer to doing what the testator tried to do than an intestate distribution.

Front 58

Integration

Back 58

If an integration issue is raised, the will proponent must show that:
The pages were present when the will was executed and were intended by the testator to be part of the will

Front 59

Codicil

Back 59

Must be executed with the same testamentary formalities as a will
Under the doctrine of republication by codicil, a will is treated as having been executed on the date of the last validly executed codicil thereto.
-So, can result in a change in a spouse’s/child’s status with respect to pretermission.
-E.g.: Child born before the republication is not considered pretermission

Front 60

Incorporation by Reference
-Requirements

Back 60

(1) Document must be in existence at the time the will was executed
(2) The will must refer to the document as being in existence
(3) The will must identify the document with reasonable certainty

Front 61

Incorporation by Reference
-Exception for Legal List

Back 61

Will may refer to a written statement/list that
(1) Disposes of items of TANGIBLE PERSONAL PROPERTY not specifically bequeathed by the will (not money of the like)
(2) May be prepared BEFORE or AFTER will’s execution, may be altered by testator
(3) The list must describe items/beneficiaries with REASONABLE CERTAINTY
(4) the list must be SIGNED by the testator
(5) The will must REFER to the list and the will must be VALID

Front 62

Acts of Independent Significance

Back 62

A will may dispose of property by reference to acts/events that have significance apart from their effect on the dispositions made by the will.
Act must have some LIFETIME SIGNIFICANCE/MOTIVE other than providing for the testamentary gift (e.g. I give Mary my car).

Front 63

Nonprobate assets cannot be disposed of by will

Back 63

Nonprobate assets include:
(i) property passing by contract (life insurance proceeds, employee benefits)
(ii) Property passing by right of survivorship
(iii) Property held in trust
(iv) Various written instruments

Front 64

Powers of appointment

Back 64

An authority created in a person (the donee) enabling her to designate, within limits prescribing the power by the creator of the power (the donor), the persons who shall take the property and the manner in which they shall take it.
GENERAL power: exercisable in favor of anyone the donee chooses, including herself, her estate, or her creditors.
SPECIAL power: exercisable in favor of a limited class that does not include the donee, her estate, or her creditors

Front 65

What is included in a bequest of “PERSONAL PROPERTY”

Back 65

“All my personal property” includes:
-Intangible personal property (stocks, bonds, etc.)
-Tangible personal property

Front 66

Joint and Reciprocal Wills

Back 66

Joint Will = Will of 2 or more persons executed on the same piece of paper
-Admissible to probate on the death of each of the joint testators

Reciprocal wills = two separate wills containing reciprocal provisions.
-Revocable by a testator in the same manner as any other will. (It’s the contract that’s irrevocable and may result in imposition of constructive trust)

Front 67

Lapsed Gifts and the VA anti-lapse statute
-Generally

Back 67

If a will beneficiary dies during the testator’s lifetime, the gift LAPSES.
Absent a contrary will provision, VA’s anti-lapse statute operates to save a testamentary gift if the predeceasing beneficiary was:
A GRANDPARENT or LINEAL DESCENDENT OF THE TESTATOR’S GRANDPARENTS and left descendants who survived the testator.

Front 68

Lapsed Gifts:
-Lapse in the residuary gift

Back 68

The residuary beneficiaries who survive the testator take the deceased beneficiary’s share in proportion to their interest in the residue.
The anti-lapse statute takes precedence over the rule that the surviving residuary beneficiaries take.

Front 69

Lapsed Gifts:
-Class Gift

Back 69

Absent a contrary will provision:
-Only class members who survive the testator take the gift
-UNLESS the anti-lapse statute applies b/c the predeceasing class member was within the scope of that statute and left descendents who survive the testator.
-NOTE: “Children” “issue” “heirs” etc. include adopted child unless evidence of contrary intent. Same for nonmarital child if he would be deemed related to the designated ancestor for purposes of intestate succession.

Front 70

Ademption by Extinction

Back 70

When specifically bequeathed property is not in the estate at death, the bequest is adeemed (fails)

Front 71

Ademption by Extinction
-What property does this apply to

Back 71

Applies only to specific bequests.
-Does not apply to general or demonstrative legacies.
-General Legacy = Bequest of a dollar amount payable out of the general estate's funds.
-Demonstrative Legacy = Bequest of a dollar amount that identifies a specific asset as the primary source of payment. ($100 from the sale of my 50 shares. BUT NOT: My 50 Shares.)

Front 72

Ademption by Extinction
-Statutory Exceptions

Back 72

(1) Sale by Guardian/Conservator of the specific bequest. Entitled to general legacy. (Insurance paid to guardian for damage to specifix bequest).
(2) Insurance proceeds from damage to the specific bequest (only to the extent paid after death). Entitled to general legacy
(3) Any amount of condemnation award (for taking by power of eminent domain), only to the extent paid after death.
(4) Corporate reorganizations, mergers, etc. A specific devisee of stock is entitled to securities of another corporation owned by the testator as a result of the above acts.

Front 73

Surviving Spouse's Elective Share

Back 73

If decedent was domiciled in VA, his surviving spouse was entitled to claim a statutory share of the decedent's estate equal to 1/3 of the "augmented estate." ALWAYS AVAILABLE

Front 74

Surviving Spouse's Elective Share
Augmented Estate

Back 74

Net probate estate + certain transfers that benefit 3rd persons + all donative transfers for benefit of spouse = Augmented Estate

Front 75

Surviving Spouse's Elective Share
Augmented Estate
-Certain Donative Transfers to third persons

Back 75

All these are included if transferred without adequate consideration.
(i) any property passing by right of survivorship
(ii) transfers in trust which testator retained the right to revoke
(iii) gifts in excess of $10,000 in the five years previous to testators death, but only to extent gift exceeds 10K
(iv) Transfer in which the decedent retained a life estate
(v) life insurance, retirement benefits, annuities, pension plans, and employee benefit plans.

Front 76

Surviving Spouse's Elective Share
Augmented Estate
-All donative transfers to the SS

Back 76

All property other than tangible personal property that the SS owned or acquired at the decedent's death if it was acquired as a gift from the decedent.

Front 77

Surviving Spouse's Elective Share
Augmented Estate
-Survivorship Estates

Back 77

The augmented estate includes survivorship estates between spouses (e.g. joint bank accounts or land in joint tenancy) to the extent that the decedent furnished the consideration for the property's acquisition.

Front 78

Family Allowance

Back 78

The spouse or children whom the decedent was legally obligated to support are entitled to a reasonable allowance for the period that the estate is in probate. Court can prescribe the amount, but a personal representative can award up to $18K without court approval.
-Priority over all creditor's claim and above amounts passing to spouse by intestacy/will/elective share.

Front 79

Exempt Personal Property Set-Aside

Back 79

The spouse (if none, the minor children) is entitled to select household furniture, furnishings, automobiles, appliances, and personal effects, not to exceed $15K in value.
-Priority over all claims except family allowance
--Specifcally bequeathed property cannot be chosen if other items of value are available.

Front 80

Homestead Allowance

Back 80

The SS (if none, minor children) is entitled to homestead allowance of $15K.
-Priority over all claims except family allowance and exempt personal property
-This allowance is in lieu of property passing to the SS by will/intestacy/elective share

Front 81

Spouse's right to occupy family residence

Back 81

If the spouse files for an elective share, or if the decedent died intestate survived by descendant's from an earlier marriage, the SS is entitled to live in the principal family residence without charge until her rights to the home are determined.

Front 82

Waiver of Restrictions of power of testation

Back 82

All these rights can be waived by written and signed marital or pre-marital agreement. No consideration is required.

Front 83

Will Contests
-Standing

Back 83

Only an interested person (one who would be adversely affected by the will's admission to probate) has standing

Front 84

heart sounds in chest pain evaluation

Back 84

wide physiologic splitting of S2 (inspiration) --> right bundle branch block or right ventricular infarction

paradoxical splitting (expiration) ---- LBBB or anterior/lateral infarction

S3 --> heart failure

S4 --> angina or infarction;

aortic regurgitation --<--aortic dissection

mitral regurgitatioN-<-angina or infarction due to papillary muscle dysfunction

Front 85

Will Contests
-Undue Influence

Back 85

A will may be set aside if it is a product of coercion or duress
Test:
(i) the existence and exertion of influence
(ii) that the effect was overpowering the testator's mind and free will;
(iii) that the product of the influence was will (or a gift in a will) that would not have been made but for such influence

Front 86

Will Contests
-Undue influence
---Presumption of Undue Influence

Back 86

A presumption arises if it is proved by clear and convincing evidence that
(i) A confidential relationship (attorney-client, parent-child, caretaker-invalid) existed between the testator and the person who was alleged to have exercised the undue influence; or
(ii) the testator suffered from "great weakness of mind" and the consideration she received was grossly inadequate or the transaction occurred under suspicious circumstances.

Front 87

Will Contests
-Fraud

Back 87

Elements:
(i) false representations that the speaker knows to be false
(ii) intent to deceive
(iii) the other party's ignorance of the falsity and
(iv) reliance on the representations induced the party to act to his injury.
If the execution of a will, or inclusion of a gift is a result of fraud, the will or gift is invalid

Front 88

Will Contests
-Fraud
---Presumption of Fraud

Back 88

A presumption of fraud arises when:
(i) the will was drafted by one in a confidential relationship with the testator
AND (ii) there are suspicious circumstances

Front 89

Will Contests
-Mistake

Back 89

(1) Mistake as to nature of Instrument: Evidence is admissible to show that the testator was unaware of the nature of the instrument she signed
(2) Mistake in Inducement: If the mistake involves the reasons that the testator made the will, and the mistake was not fraudulently induced, no relief is granted unless (i) the testator's child is involved, or (ii) the mistaken inducement appears on the face of the will.
(3) Mistake as to contents of the will: Generally evidence is not admissible to show that testator made a mistake regarding an unambiguous portion of a will. Unless fraud, duress, suspicious circumstances

Front 90

Will Contests
-Ambiguity
---Latent Ambiguity

Back 90

This exists when the language of the will (although clear on its face in describing a beneficiary or property) results in a misdescription when applied to the facts to which it refers.
-When two or more persons or things fit the description, or nothing fits the description exactly.
-Evidence admissible (including testators statements of intent) to cure the ambiguity, but if it doesn't, the gift fails.

Front 91

Will Contests
-Ambiguity
---Patent Ambiguity

Back 91

This exists when the uncertainty appears of the face of the will.
-Extrinsic evidence admissible, but testator's declarations are not.

Front 92

Will Contests
-Tortious Interference with inheritance rights

Back 92

NOT Recognized in VA

Front 93

No Contest Clauses

Back 93

These are generally enforceable.
If the contestant is successful however, the no contest clause fails along with the will. If he fails, he gets nothing

Front 94

Probate Jurisdiction

Back 94

"probate" refers to the proceeding in which an instrument is judicially established as the duly executed last will of the decedent or; if there is no will, the proceeding in which the decedent's heirs are judicially determined.

Front 95

Jurisdiction and Venue Rules

Back 95

Circuit court have jurisdiction over all probate matters. Venue lies in the county or city where the decedent resided, or (if none) the county or city where the decedent owned real property, or (if none) the city or county where decedent owned personal property

Front 96

Time limit for offering a will to probate

Back 96

No time limit
-BUT if will is not offered within one year of decedent's death, bona fide purchasers of real property from heir or devisee under a prior instrument will be protected

Front 97

Appointment of personal representative
-Terminology: Administrator v. Executor

Back 97

Personal representative named in a will = executor
Personal representative appointed by the court = administrator

Front 98

Appointment of personal representative
-Who is entitled to serve as administrator?
---Within 30 days of decedent's death

Back 98

Within first 30 days, these people are entitled to be appointed administrator in this order:
(i) SS who is the sole distributee
(ii) Any distributee who is the sole heir
(iii) Any distributee who secure written waivers from all other competent distributees

Front 99

Appointment of personal representative
-Who is entitled to serve as administrator?
---If no administrator appointed within 30 days after decedent's death?

Back 99

If no appointment within 30 days, clerk of court may distribute as he sees fit
-If none within 60 days, the clerk of court may appoint a creditor or any other person

Front 100

Appointment of personal representative
-Curator

Back 100

A curator, who is a temporary personal representative, may be appointed in the case of a will contest or when action must be taken before a permanent personal representative can be appointed

Front 101

Appointment of personal representative
-Nonresident Personal Representative

Back 101

-A nonresident individual may serve as a personal representative of a decedent's estate, but must appoint a resident agent for service of process.

Front 102

Duties and Powers of Personal Representative

Back 102

(1) Marshalling the decedent's assests
(2) giving notice to creditors and paying valid claims
(3) filing the decedent's tax forms
(4) winding up the decedent's affairs
(5) Distributing the remaining assets according to the decedent's will or the intestacy statutes

Front 103

Duties and Powers of Personal Representative
-Specific Duties

Back 103

(1) Fiduciary bond must be posted unless waived by decedent's will
(2) Inventory of the estate within 4 months
(3) List of Heirs at the time of qualification
(4) Must file an accounting within 16 months following the date of qualification and annual accountings thereafter
(5) Generally allowed a commission of 5% on receipts of sale of property
(6) Can also: appoint agents and professional advisers, sue and be sued on contracts/other claims against decedent, compromise claims of or against the estate without court approval.

Front 104

Creditors claims

Back 104

If the assets are not sufficient to pay all debts and claims against the estate, creditors claims are paid in the following order:
(1) expenses of administration
(2) family allowance
(3) Funeral expenses up to 3500
(4) debts and taxes with preference under federal law
(5) medical expenses of the last illness
(6) debts and taxes due Virginia
(7) debts incurred in a fiduciary capacity
(8) debts and taxes due municipalities
(9) all other claims

Front 105

Exoneration of Liens

Back 105

Unless directed in the will, liens on specifically bequeathed property are not paid off by the estate.
BUT if the lien was placed on the property after the testator was incapacitated, the beneficiary is entitled to exoneration

Front 106

Apportionment of Estate Taxes

Back 106

Absent a contrary will provision, each person interested in the estate (recipient of probate or nonprobate assets) is charged with a pro rata portion of the estate taxes. However, any deduction, exemption, or credit allowed in connection with the estate tax inures to the beneficiary of the gift involved