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100 Cards in this Set

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In the most general terms, what is the basic hierarchy for intestate succession?
Spouse > descendants > parents > siblings > grandparents > heirs of deceased spouse > Commonwealth
In intestate succession, if the decedent is survived by a spouse and their two children, who gets what?
Spouse gets the entire estate, assuming the children were children of them both.
In intestate succession, if the decedent is survived by a spouse and two children, one from their marriage and one from a previous marriage, who gets what?
Surviving spouse gets one third; all other descendants of the decedent share the remaining two thirds
When will a surviving spouse NOT get anything despite being heir by intestate succession?
If a spouse willfully deserts/abandons prior to decedant’s death (and that continue until decedent’s death), then the deserting spouse gets nothing (even if named in the will).
b. If the spouse voluntarily disclaims
Under intestate succession, if the estate should pass to the siblings, but they are deceased, to whom does the estate pass?
The siblings' issue. If none, then to the grandparents.
What are the statutory rights of a surviving spouse?
REFH:
i. Residence
ii. Exempt personal property up to $15k
iii. Family Allowance up to $18k
iv. Homestead allowance up to $15k
Under what circumstances can a surviving spouse stay in the principal residence of the decedent?
Spouse can live in principal family residence without paying rent or taxes until the spouse’s right to the residence as been determined, but ONLY IF (1) spouse claims an elective share, or (2) decedent died intestate survived by descendents from a former marriage.
If the spouse invokes the statutory right to personal property, how much does she get? What if the estate doesn't have enough property to meet the payout?
a. Spouse is entitled to personal property up to $15k, including cars, household furniture, furnishings, appliances, and personal effects
b. If there is not $15k worth of items, spouse is entitled to other cash or assets up to $15k
What is the statutory family allowance?
a. Spouse is entitled to the money needed for maintenance and support for one year
b. This cannot exceed $18k unless petition is made for a higher allowance (which is always is)
What is the statutory homestead allowance?
a. Spouse is entitled to $15k IF spouse gets less than that by will or intestacy.
b. This is only gettable if the spouse does NOT claim an elective share.
Does a child who is adopted by a non-biological parent have inheritance rights from both biological parents AND from the adoptive parents?
Yes
What does an illegitimate child of a male decedent need to show before the child can inherit from the father?
Paternity
How does a child establish paternity for the purposes of inheriting?
MAC, BADCAT
1) Marriage: if the father married the biological mother before or after the birth of the child
2) Adjudicated to be the father in a filiation proceeding
3) Clear and convincing evidence that the man is a BAD CAT
i) Birth certificate: if father gave consent to being named on the certificate
ii) Admits paternity under oath
iii) DNA tests or other medical evidence
iv) Cohabitation: if the father cohabited with the mother during the ten months before birth
v) Allowed child to use surname
vi) Tax return or other government document
Under what circumstances can a father inherit from a nonmarital child?
To inherit from a non-marital child, paternity must be proven (MAC/BADCAT) AND the father (1) must have openly treated the child as his own and (2) did not refuse to support the child.
Under Va law, how far apart must two related people die for the later decedent to have "survived" the earlier decedent?
Simultaneous Death Rule: To be a survivor, you must survive by AT LEAST 5 days (120 hours). Otherwise, the person is treated as having predeceased the decedent
What are advancements? When do they come into play?
a) Gifts from parents to children during the children’s lifetime that are of significant value (from the estate’s perspective) are treated as advancements of what the child would inherit.
b) Intestate succession only, and only for descendants (children, grandchildren, ...)
What is the process by which advancements are taken into account in the estate?
Process called "Hotchpot": The value of inter vivos gifts are combined into the estate, and then the estate is divided, such that the donee’s inter vivos gift counts toward his collection.
Which value is relevant for an advancement: the value at the time it is given, the time of the decedent's death, or the time of distribution?
The gift is valued at the time given not the time of death
Inter vivos gifts are sometimes counted against what an heir would otherwise receive from the decedent's estate. What is this called for intestate succession? What is this called when there is a will?
Intestate: "advancements"
By will: "ademption by satisfaction"
Under what circumstances will an inter vivos gift count against an heir's portion if there is a will?
When a person provides for a bequest and also makes an inter vivos gift to the same person, the gift will be deemed “in satisfaction” of what was to be given in the will ONLY IF [any]:
1) The gift was declared in writing by the donor to be in satisfaction of bequest, OR
2) The gift was acknowledged in writing by the donee to be in satisfaction of bequest, OR
3) The last will and testament acknowledges that any lifetime gifts are in satisfaction of the bequest.
How can an heir disclaim an interest in an estate?
a. Must be in writing and signed
b. Must be delivered to the personal representative/trustee of the estate
c. Must be within nine months of death of decedent
What are the terms of the Va "slayer statute"?
A spouse cannot recover any death benefits if EITHER
a. The spouse was convicted of murder or voluntary manslaughter
b. The spouse, not being available for prosecution (e.g., by death or suicide), was found civilly responsible for the other spouse’s death by a preponderance of evidence.
In Va, under what circumstances can formalities (i.e., witness requirements) be forgiven in the making of a will?
By clear and convincing evidence that the decedent intended the document to be ANY of the following:
a. A will
b. A partial or complete revocation of a will
c. A codicil or modification of a will
d. A partial or complete revival of the decedent’s formerly revoked will
Under what circumstances can the requirement of a signature on a will be forgiven?
Generally not. This is one exception to the general rule that clear and convincing evidence of intent will forgive formalities in will execution.
2 exceptions: (1) two people mistakenly sign each other’s wills, or (2) the person signs a self-proving affidavit rather than the will itself.
If a person wants to probate a will that does not fulfill some of the formalities, how long does he have to file the will?
One year statute of limitations
What are the requirements for a witnessed will?
i. Age: Testator must be 18 or emancipated
ii. Signature: testator must sign or have someone sign at his direction and in his presence (proxy signature)
iii. Presence requirement: testator must sign will in the presence of two witnesses
--But remember the rules for formality forgiveness...
What are the requirements for a holographic will?
A holographic will is valid if
a. Handwritten
b. Signed by the testator
testator’s
c. Contains “death talk” (i.e. words that indicate the will is intended to be a will)
-- Subject to formality forgiveness
What does it mean to say a will may be self-proved?
1) Self-proved: includes affidavit reciting facts of due execution (i.e., witnesses, etc) acknowledged by testator and sworn to be witnesses before a notary public
2) If the will is self-proved, there is no need to call attesting witnesses. The sworn statement is accepted as if it had been oral testimony before the court.
What is the statute of limitations for challenging a will in probate?
A will admitted to probate can be challenged (1) within six months by appeal to the circuit court, or (2) within one year by filing a bill in equity to impeach or establish the will.
What law will apply in probate court (e.g., law where proprty located, where decedent died, etc)?
a. All personal property passes according to the laws of the state of domicile of the decedent
b. All real property passes according to the law of the state in which it lies
What is a will called when it contains the following statement: “Signed, sealed, published and declared by the above named A B, as and for his last will and testament, in the presence of us, who have hereunto subscribed our names as the witnesses thereto, in the presence of the said testator, and of each other.”
A "self-proved" (assuming it is signed and witnessed before a notary)
Can the intended beneficiaries sue an attorney for negligence if a will is not admitted to probate because of the attorney’s error?
No. No privity between attorney and will beneficiaries.
What happens if a will names a beneficiary to receive certain property, but that beneficiary has predeceased the testator? (Hint: it depends...)
a. If the predeceased heir was a relative of the testator, then the property goes to the heirs currently-surviving descendants (Va anti-lapse statute).
b. Otherwise, the property goes back into the estate (common law default).
What is the "Virginia Anti-Lapse Statute"?
If (1) someone who was to get property through a will has predeceased the testator, and (2) the person was a relative of the decedent --> THEN it goes to the the descendants of the deceased heir who survive the testator.
What if a will names a group of beneficiaries to take the "risiduary estate," but one of them predeceases the testator?
Special Rule for Lapse in a Residuary Gift:
If the residuary estate is devised to multiple people, some of whom predeceased the testator, and they are NOT relatives of the testator (so the anti-lapse statue doesn’t apply) --> then the remaining members of the group split the residuary in proportion to their interests in the residue.
What if a will names a class of beneficiaries (e.g., my grandchildren) to take certain property, and the class changes prior to the testator's death?
If one of the class members predeceases the testator, the gift lapses (unless the recipients are relatives, in which case the issue take under the Va Anti-Lapse Statute), but instead of putting the shares of the predeceased back into the residuary estate, it is shared by the other class members.
If a will names a class of beneficiaries (e.g., my grandchildren), when is the class determined? (I.e., at execution? at death? at distribution?)
At the time of the testator's death ("rule of administrative convenience")
What is the general rule for how much a spouse may get who did not exist at the time a will was executed (i.e., testator wrote the will when he was still a bachelor)?
In Va, the spouse receives what would be computed to be the spouse’s intestate portion at the time of the testator’s death. (Unless will stipulates otherwise.)
What are the rules for what a child gets from a decedent parent if the child did not exist when the will was executed?
a. If the testator had *no other children living* when the will was executed: the omitted child receives what he would have gotten through intestate succession.
--Exception: if the child dies before reaching 18 (and was unmarried and without issue), then the portion reverts back
b. If the testator had a *child living* at the time the will was executed, then any later child receives the LESSER of what the child would receive intestate or the equivalent of the largest bequest to any child by will.
Under what circumstances will a lost will be presumed revoked?
If a will can be traced to the testator’s possession and it cannot be found after the testator’s death, it is presumed that the testator destroyed it (revocation by physical act).
--This can be rebutted by clear and convincing evidence.
If a will can be traced to the testator’s possession and it is found mutilated after the testator’s death, what is the presumption?
The presumption is that the testator performed the mutilation.
What is dependent relative revocation?
Under DDR, IF the court find that a will's revocation was based on a mistake of law or fact (e.g., the testator thought that tearing up (i.e. revoking) another revoking will would revive the original will), then the court will act as though the revocation never happened.
--Note that last revocation is undone, but the earlier revocation stand.
Under what circumstances can a lost will be probated (i.e., through circumstantial evidence)?
A lost will can still be probated if the 3-point test is met:
1) Due execution of the lost will is proven
2) Presumption of revocation is overcome (i.e., must proof why it was lost)
3) Contents of the lost will are proven by clear and convincing evidence
If there are two wills for the same testator, and neither revokes the other, how should the two be read?
Read the two documents together. The second revokes the first only to the extent of inconsistent provisions.
What is the effect of scratching out a line of a will?
Partial revocation (by physical act), unless DDR applies
--E.g., if you scratched a line out and wrote something above it, that suggests that you thought your addition would replace the crossed-out line, which it cannot. Because you obviously made a mistake of law, the revocation will be ignored under DDR and the line will be read as though it had not been scratched out.
When will a handwritten addition to a will be recognized?
Handwritten additions are not valid unless they meet the requirements of a holographic will.
What are the four types of bequests?
i. Specific bequest: “I devise Blackacre to my son John.” (Specific identifiable real or personal property.)
ii. Demonstrative legacy: A general amount from a specific source. “I bequeath $25k to be paid from sale of my Exxon stock.”
iii. General legacy: “I bequeath $10k to my nephew Ned.”
iv. Residuary gift: “I give the rest, residue, and remainder of my estate to Betty.”
What happens when there are insufficient assets in the estate to cover claims against (i.e., debts of) the estate?
Absent contrary language, they are paid in the following order:
a. Intestate property (if there is a partial intestacy)
b. Then out of residuary assets
c. Then out of general and demonstrative legacies
d. Finally, out of specific bequests
How are estate taxes apportioned across the beneficiaries?
Absent contrary language, estate taxes are equitably apportioned among all estate beneficiaries pro rata.
--Exception: Gifts that qualify for the marital or charitable deduction are not subject to apportionment, because they do not generate any tax.
If a will makes a specific bequest (i.e., identifiable real or personal property), but that property is not in the estate at death, what happens?
The bequest is “adeemed by extinction.” (Heir gets nothing.) Note that this applies only to specific bequests!
If a will makes a specific bequest for real property, where the property has been sold to another party before death but money is still owed back to the testator, what happens? I.e., how does equitable conversion come into play?
The heir assumes the promissory note and gets whatever is still due on it. (Va has abolished the doctrine of equitable conversion as it applies to ademption by extinction.)
If a will makes a specific bequest, but that property is lost or destroyed prior to the testator's death, can the beneficiary get anything?
A specific beneficiary takes any specifically bequeathed property remaining plus
i) Any condemnation award for a taking of the property to the extent paid after testator’s death.
ii) Any fire or casualty insurance proceeds to the extent paid after testator’s death.
--Note: the proceeds do NOT go to the specific beneficiary if they came into being before testator’s death, with the rationale being that the testator had time to change the will.
If a will makes a specific bequest, but before the testator's death, a a guardian or conservator appointed for an incompetent sells the assets, is he beneficiary entitled to anything?
Rule: if a guardian or conservator appointed for an incompetent sells assets of the testator that were subject to a prior specific bequest, then the specific beneficiary has a right to any proceeds from the sale or insurance recovery.
If a will makes a specific bequest for a security that splits or otherwise changes form, is the beneficiary still entitled to anything?
A specific beneficiary of stock takes any additional securities of the same entity because of an action initiated by that entity (e.g., a stock split).
Is the executor required to pay off the lien on the property before passing it to the specific beneficiary?
No. In Va, any specific gift (whether real or personal property) passes with attached liens, mortgage, security, etc.
--Exceptions: the liens will be paid down before passing the property IF the liens were created by a guardian or agent under a durable power of attorney
Can you use evidence to cure a latent or patent ambiguity in a will?
Yes, you can use extrinsic evidence to cure a latent or patent ambiguity .
What is the difference between a patent and latent ambiguity?
1) Latent: If the language is ambiguous but not contradictory (e.g., you leave something to your nephew “John Paul” but you have two nephews, John Smith and Paul Davis
2) Patent: The language is contradictory. (E.g., “I leave twenty-five dollars ($25,000) to Bob.”
--Note: you can use extrinsic evidence to cure a latent or patent ambiguity.
Under what circumstances can an extrinsic document may be incorporated by reference into the will?
a. It is a writing,
b. It existed at the time of execution of the will,
c. The will showed an intent to incorporate the writing, AND
d. The will described the writing with reasonable certainty
Under what circumstances can you refer in a will to a separate list of personal property to pass items to named recipients?
Called a "Legal List." Four requirements:
a. List refers to tangible personal property only (not money, stock, etc)
b. List must describe the items with reasonable certainty
c. List must be signed by the testator
d. The will must refer to the list and the will must be valid
Hypo: If you leave to your niece “all furnishings in your living room,” is this sufficiently specific? What if you move things around after writing the will?
This is valid even though you might move things in and out of your living room between the execution of the will and your death. Whatever is in there at death goes to your niece.
What is meant by "personal property" if a testator bequeaths "all my personal property? Does it include stocks, bonds, cash, and bank accounts?
Yes, it includes intangible property (stocks, bonds, bank accounts, etc) as well as tangible personal property. It’s a technical term, so it’s interpreted according to its technical meaning.
--But a bequest of “all the furniture and personal property in my house” would only include tangible property.
If a testator, in a prior contract, agreed to bequeath property to a creditor at death. What happens if the testator then doesn't do it in his will?
Rule: The law of contracts cannot impact the validity or interpretation of a Will, but there might be a cause of action for breach of contract against the estate.
If a couple has a joint will that bequeaths property to the son, but after the father dies, the mother writes a new will bequeathing everything to the daughter, what happens? Is the joint will a binding contract on both spouses?
A will (e.g., the joint will here) is NOT considered a contract unless there is clear and convincing evidence of a contract from either (1) the will, (2) extrinsic evidence, OR (3) by clear implication from surrounding circumstances.
If a couple has a joint will that bequeaths property to the son, but after the father dies, the mother writes a new will bequeathing everything to the daughter, what happens, assuming the joint will is held to be a contract?
If a will is held to be a contract, then apply wills law first and contract law second.
1) I.e., follow the later will, which would revoke the joint will.
2) But then impose a constructive trust in favor of the beneficiary of the contractual will.
What is a survivorship account?
An account that allows property ti pass by right of survivorship (e.g. joint bank accounts, tenancy by the entirety, joint tenancy, etc) rather than going through probate
If a spouse decides to take an elective share, what statutory rights may the spouse invoke?
REF (not REFH):
a. Residence: Only if spouse files for elective share (or if decedent died intestate with descendents from a former marriage); spouse has right to occupy primary residence rent free until rights are determined.
b. Exempt personal property up to $15k
c. Family allowance up to $18k, or more on petition to the court.
--Note: NOT Homestead (she gets homestead ONLY if she is NOT electing)
Hypo: If a will is contested successfully, what will a spouse get from the estate?
Her intestate share
If a spouse decides to take an elective share, how is that share calculated?
This share will be one third of the augmented estate if the decedent is survived by descendants, and one-half of the augmented estate if no descendants. Spouse can also get 6% interest from the decedent’s death.
Timing: When must a spouse must file notice of her decision to take the elective share?
Spouse must file notice of election within SIX MONTHS after (1) the will is admitted to probate or (2) if no will, after an administrator is appointed.
If the spouse is incapacitated, who may elect on the spouse's behalf?
The court may elect on the spouse’s behalf (NOT a guardian or conservator, since that may be a relative who has a conflicted interest)
If a spouse takes an elective share, how is the contribution of each of the other beneficiaries calculated?
All beneficiaries contribute ratably (pro rata reduction of their shares in proportion to their interest in the augmented estate)
Will a spouse be disqualified from taking an elective share if she willfully deserted/abandoned the decedent spouse?
Yes (public policy)
In the most general terms, how is an agumentes estate calculated? (Hint: Add three parts, then subtract some things.)
i. Part 1: The probate estate
ii. Part 2: Add transfers to the spouse
iii. Part 3: Add transfers to third parties
--Exclusion: Subtract out exclusions (JOG)
In calculating the augmented estate for elective share purposes, is the probate considered before or after debts and expenses?
Start with the probate estate AFTER payment of debts and expenses
In calculating the augmented estate for elective share purposes, what is meant by the addition of any "transfers to the spouse"?
a. Add in lifetime gifts by the decedent to the spouse, including gifts made before marriage (e.g., cash, stocks, real property)
b. Exclusions: do NOT count tangible personal property (jewelry, birthday presents, etc)
If the spouses had a joint bank account, how do you calculate how much each spouse contributed to the account (e.g., for calculating transfers to the spouse for the augmented estate)?
Joint property: there is a rebuttable presumption that each spouse contributed equally to joint property. E.g., if there is a joint bank account with $20k, it is assumed that $10k is a lifetime gift to the surviving spouse and the other $10k was the survivor’s own contribution.
In calculating the augmented estate for elective share purposes, what is meant by the addition of any "transfers to third parties"?
Add in lifetime gifts and nonprobate transfers to third parties. This includes STRINGY LEGS:
1) Strings-attached lifetime transfers: transfers in which the decedent retained the right to income, to revoke, to invade, etc.
2) Life insurance: paid to a third party by decedent’s death
3) Employee death benefits: Under retirement plan (other than ERISA—preempted)
4) Gifts in excess of $10k
5) Survivorship estates: joint and survivor bank accounts, joint tenancies with third parties
In calculating the augmented estate for elective share purposes, what are the exclusions?
Exclusion: Do not count (JOG)
a. Joinder: Transfers with souse’s joinder or written consent.
b. Old transfers: irrevocable transfers to third parties before January 1, 1991 (retroactivity issue)
c. Gifts to deceased spouse from someone other than the surviving spouse: separate property acquired by gift, will, or inheritance from someone other than the surviving spouse, IF the decedent segregated the property from other assets (e.g., in a trust)
Who has standing to contest a will?
i. Only an interested party may bring a contest.
ii. An interested party is one with an economic interest that would be adversely affected by the will’s probate.
What is the standard of proof for showing a lack of testamentary capacity?
Preponderance of evidence
What is the test for whether a person had testamentary capacity?
Did testator have sufficient capacity to:
a. Understand the nature of the act he or she was doing—i.e., executing a will?
b. Know the extent f his or her wealth? (i.e., assets)
c. Know the natural object of his/her bounty? (i.e. relatives and friends and their importance)
d. Able to interrelate the above three?
True or False: The testator need possess this capacity only at the moment of the will’s execution.
True
Is an adjudication of incapacity sufficient to show lack of testamentary capacity?
No
What is the test for showing undue influence over a will's execution?
Contestant must show (ALL):
a. Standing to contest
b. Suspicious circumstances
c. Conduct on part of the beneficiary showing a intent to overcome the testator’s will
d. The provisions were a product of this conduct (injury)
Which of the following acts would be sufficient to show undue influence over a will's execution?
a. Mere opportunity to exert influence?
b. Mere susceptibility to influence (e.g., age, illness)?
c. Mere unnatural disposition (e.g., one son getting more than the others)?
None of these are sufficient by themselves
Will a showing of undue influence make the entire will invalid or only those portions affected by the undue influence?
Unlike testamentary capacity, undue influence causes ONLY those portions of the will affected by the undue influence to be revoked. The rest remains.
If a beneficiary had a confidential relationship with the testator, how will that relationship affect the analysis for undue influence?
a. Burden shifts: this creates rebuttable presumption of undue influence
b. This presumption can be rebutted by showing that the testator had the ability to resist the influence
What are the 5 kinds of confidential relationships in the context of showing undue influence?
5 kinds of confidential relationships: (1) relationship of trust, (2) priest-penitent, (3) doctor-patient, (4) attorney-client, and (5) guardian-ward.
In Va, can a person be liable in tort for exerting undue influence over a will's execution?
No. There is no such tort in Va.
Is a statement in a will such as this enforceable: “If any beneficiary contests this will or any part thereof, he or she shall forfeit any interest under this will.”
Yes. This is a valid no-contest clause.
For the purposes of triggering a no-contest clause, which of the following are "contests":
Petition for an omitted spouse?
Petition to become a pretermitted (omitted) child?
Neither. These are NOT contests, and they will not trigger the no-contest clause.
How do you determine the proper jurisdiction for probate?
Probate may be had in the county where the decedent was domiciled at death, unless the decedent died in a nursing home, in which case probate should be in the previous county of domicile.
What must one do to qualify as an executor for an estate?
To qualify as an executor, one must (1) take an oath to faithfully perform the duties, and (2) post bond to secure performance.
What is the value of the bond that an executor is required to put up? Must he obtain surety?
a. The bond must be equal to the value of the personal estate plus any real estate over which the executor is given power of sale.
b. Surety is required on the bond unless this requirement is waived by the will.
Who has top priority for appointment as administrator for the estate?
Spouse who is sole distributee (b/c no descendants)
If a spouse is not the sole distibutee of the estate but wants to be appointed as administrator, what must she do?
Get *written* consent of *all* of decedents competent children
If a beneficiary is not the sole distibutee of the estate but wants to be appointed as administrator, what must the person do?
Must secure written waivers from all other competent distributees
Can a non-resident of the state be appointed administrator of an estate?
Yes, so long as they appoint an in-state agent for service of process
Timing: How long does a person have to petition the court to be appointed estate administrator?
Within 30 days after decedent’s death

Per stirpes

“per capita with representation.”


assets are distibuted in equal share to each person in the class and if one of the people has predeceased, then their "representative" (descendant) takes their share