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55 Cards in this Set

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What does a "laughing heir statute" do?
LAUGHING HEIR STATUTE: Cuts off the inheritance rights of more remote relatives

NOTE: Thus, no matter how remotely related to the intestate, a person can qualify as an heir.
NOTE: Virginia has ____ laughing heir statute!
NOTE: Virginia has NO laughing heir statute!
VA has no _________ _______ STATUTE.

Thus, no matter how remotely related to the intestate, a person can qualify as an heir.
VA has no LAUGHING HEIR STATUTE.

Thus, no matter how remotely related to the intestate, a person can qualify as an heir.
When does an estate ESCHEAT to the Commonwealth?
When does an estate ESCHEAT to the Commonwealth?

Only if there are no heirs of the decedent or his spouse.
WILL PROVISION ATTEMPTING TO DISINHERIT IS INEFFECTIVE

To disinherit someone, the testator must make a __________ ____________ of his estate by will.
WILL PROVISION ATTEMPTING TO DISINHERIT IS INEFFECTIVE

To disinherit someone, the testator must make a COMPLETE DISPOSITION of his estate by will.

NOTE: A will provision such as "I do not want my son to take anything" will NOT prevent the son from taking intestate property!
INTESTATE SHARE OF SURVIVING SPOUSE

(1) Not survived by descendants?

(2) Survived by descendants, all of whom are also descendants of surviving spouse?

(3) Survived by descendants, at least one of whom is NOT the surviving spouse's descendant?

(4) Surviving spouse deserts or abandons the other spouse and desertion continues until death?
INTESTATE SHARE OF SURVIVING SPOUSE

(1) Not survived by descendants? ENTIRE ESTATE

(2) Survived by descendants, all of whom are also descendants of surviving spouse? ENTIRE ESTATE

(3) Survived by descendants, at least one of whom is NOT the surviving spouse's descendant? 1/3

(4) Surviving spouse deserts or abandons the other spouse and desertion continues until death? NOTHING
Persons w/ only one common parent.
HALF BLOODS: Persons w/ only one common parent.
A testamentary instrument w/ certain formalities.
WILL: A testamentary instrument w/ certain formalities.
A supplement to a will that alters, amends, or modifies the will.
CODICIL: A supplement to a will that alters, amends, or modifies the will.
A will is NOT operative until testator's death.

Thus, a beneficiary has merely an __________ (NOT a ________ INTEREST) until that time.
A will is NOT operative until testator's death.

Thus, a beneficiary has merely an EXPECTANCY (NOT a PROPERTY INTEREST) until that time.
Recites the elements of due execution of a will.
ATTESTATION CLAUSE: Recites the elements of due execution of a will.
ATTORNEY LIABILITY FOR NEGLIGENCE--PRIVITY OF K DEFENSES

Who can sue for negligence in VA?
ATTORNEY LIABILITY FOR NEGLIGENCE--PRIVITY OF K DEFENSES

Who can sue for negligence in VA?

ONLY the client who contracted for an attorney's services
What is this?

o It recites the elements of due execution of a will.


o It raises a presumption that a will was validly executed.
ATTESTATION CLAUSE: This raises a presumption that a will was validly executed (by reciting the elements of due execution).
WILL MAY BE SELF-PROVED

An ________ by the witnesses reciting all of the elements of proof--can be substituted for the witnesses' testimony in court.
WILL MAY BE SELF-PROVED

An AFFIDAVIT by the witnesses reciting all of the elements of proof--can be substituted for the witnesses' testimony in court.
A handwritten and unattested will.
HOLOGRAPHIC WILL: A handwritten and unattested will.
HOLOGRAPHIC WILLS

Recognized in VA, provided that they are:

o Entirely in TESTATOR'S ___________; and

o ________ by him.
HOLOGRAPHIC WILLS

Recognized in VA, provided that they are:

o Entirely in testator's HANDWRITING; and

o SIGNED by him.
HOLOGRAPHIC WILL--SIGNATURE

Testator need ____ sign at the end.

HOWEVER, if NOT signed at the end, there must be some FORMAL _________ STATEMENT.
HOLOGRAPHIC WILL--SIGNATURE

Testator need NOT sign at the end.

HOWEVER, if NOT signed at the end, there must be some FORMAL CLOSING STATEMENT.
DEFECTIVE HANDWRITTEN ATTESTED WILL CAN BE PROBATED AS _________ _____.
DEFECTIVE HANDWRITTEN ATTESTED WILL CAN BE PROBATED AS HOLOGRAPHIC WILL.
PROOF OF WILLS IN PROBATE

When a will is offered for probate, the burden on proof is on the WILL ___________ to show by a ___________ OF THE EVIDENCE that it was duly executed.
PROOF OF WILLS IN PROBATE

When a will is offered for probate, the burden on proof is on the WILL PROPONENTS to show by a PREPONDERANCE OF THE EVIDENCE that it was duly executed.
EX PARTE PROBATE

o NO ________ to interested parties.

o If self-proved, no need to call ___________ WITNESSES.

o If NOT self-proved, only ____ witness need testify.
EX PARTE PROBATE

o NO NOTICE to interested parties.

o If self-proved, no need to call ATTESTING WITNESSES.

o If NOT self-proved, only ONE witness need testify.
EX PARTE PROBATE

W/i ___ DAYS after this, the PERSONAL ___________ must give written notice of the proceeding to decedent's ______ or other interested parties.

When probate is ex parte, there may be an _______ to the ________ COURT w/i __ MONTHS from entry of probate order.
EX PARTE PROBATE

W/i 30 DAYS after this, the PERSONAL REPRESENTATIVE must give written notice of the proceeding to decedent's HEIRS or other interested parties.

When probate is ex parte, there may be an APPEAL to the CIRCUIT COURT w/i 6 MONTHS from entry of probate order.
INTER PARTES PROBATE

o _______ to interested parties.

o Right to ______ TRIAL.

o Upon ______ of an interested party, the court may require the testimony of the attesting witnesses even if the will is ________.
INTER PARTES PROBATE

o NOTICE to interested parties.

o Right to JURY TRIAL.

o Upon MOTION of an interested party, the court may require the testimony of the attesting witnesses even if the will is SELF-PROVED.
INTER PARTES PROBATE--APPEAL

Appeal goes directly to the ________ COURT.

However, it is allowed ONLY in the _______ of this court.
INTER PARTES PROBATE--APPEAL

Appeal goes directly to the SUPREME COURT.

However, it is allowed ONLY in the DISCRETION of this court.
PROOF OF WILLS IN PROBATE--HOLOGRAPHIC WILLS

Requires ___ DISINTERESTED PERSONS to _______ that the will is in testator's handwriting.
PROOF OF WILLS IN PROBATE--HOLOGRAPHIC WILLS

Requires 2 DISINTERESTED PERSONS to TESTIFY that the will is in testator's handwriting.
WILL MAY BE MADE SELF-PROVED

This requires:

(1) ________ BY WITNESSES

(2) SWORN BEFORE _______ PUBLIC
WILL MAY BE MADE SELF-PROVED

This requires:

(1) AFFIDAVIT BY WITNESSES

(2) SWORN BEFORE NOTARY PUBLIC
REVOCATION OF WILLS--GENERAL

A person who has _________ CAPACITY may revoke his will at any time PRIOR TO HIS _______.
REVOCATION OF WILLS--GENERAL

A person who has TESTAMENTARY CAPACITY may revoke his will at any time PRIOR TO HIS DEATH.
This ONLY applies to children born or adopted AFTER a will is executed.
PRETERMITTED CHILD STATUTE: This ONLY applies to children born or adopted AFTER a will is executed.
PRETERMITTED CHILD--NO OTHER CHILDREN OF TESTATOR WHEN WILL EXECUTED

In this case, the pretermitted child takes an _______ _______.

o Unless the child was provided for or mentioned in the will.
PRETERMITTED CHILD--NO OTHER CHILDREN OF TESTATOR WHEN WILL EXECUTED

In this case, the pretermitted child takes an INTESTATE SHARE.

o Unless the child was provided for or mentioned in the will.
PRETERMITTED CHILD--OTHER CHILDREN OF TESTATOR WHEN WILL EXECUTED

In this case, the pretermitted child takes the ______ OF:

(1) An amount equal to the _______ BEQUEST made to any of testator's other kids; or

(2) An _______ SHARE.
PRETERMITTED CHILD--OTHER CHILDREN OF TESTATOR WHEN WILL EXECUTED

In this case, the pretermitted child takes the LESSER OF:

(1) An amount equal to the LARGEST BEQUEST made to any of testator's other kids; or

(2) An INTESTATE SHARE.
Do lifetime gifts have any effect on pretermitted child's share?
NO!

Lifetime gifts have NO EFFECT on a pretermitted child's share.
ASSETS USED TO SATISFY PRETERMITTED CHILD'S SHARE

The intestate share of a pretermitted child is FIRST taken from ANY PORTION OF THE ESTATE ___ DISPOSED OF BY _____.

The amount necessary to satisfy the pretermitted child's share is NEXT TAKEN ___________ FROM ALL BENEFICIARIES UNDER THE WILL.
ASSETS USED TO SATISFY PRETERMITTED CHILD'S SHARE

The intestate share of a pretermitted child is FIRST taken from ANY PORTION OF THE ESTATE NOT DISPOSED OF BY WILL.

The amount necessary to satisfy the pretermitted child's share is NEXT TAKEN PROPORTIONATELY FROM ALL BENEFICIARIES UNDER THE WILL.
REVOCATION BY WRITTEN INSTRUMENT

A will may be revoked in whole or in part by a SUBSEQUENTLY WRITTEN ____, _______, or other writing executed w/ testamentary formalities required for executing a will.
REVOCATION BY WRITTEN INSTRUMENT

A will may be revoked in whole or in part by a SUBSEQUENTLY WRITTEN WILL, CODICIL, or other writing executed w/ testamentary formalities required for executing a will.
REVOCATION BY WRITTEN INSTRUMENT

If testator executes a second testamentary instrument that does ___ contain express language of _______ of an earlier will, to the extent possible, the two instruments are READ ________.
REVOCATION BY WRITTEN INSTRUMENT

If testator executes a second testamentary instrument that does NOT contain express language of REVOCATION of an earlier will, to the extent possible, the two instruments are READ TOGETHER.
REVOCATION BY WRITTEN INSTRUMENT

X executes will. X then executes a second testamentary instrument.

If no express language of revocation of earlier will, they will be read together to the extent possible.

HOWEVER, the ______ instrument revokes the ______ to the extent of any _________ PROVISIONS.
REVOCATION BY WRITTEN INSTRUMENT

X executes will. X then executes a second testamentary instrument.

If no express language of revocation of earlier will, they will be read together to the extent possible.

HOWEVER, the SECOND instrument revokes the FIRST to the extent of any INCONSISTENT PROVISIONS.
The revocation of a _____ revokes all codicils to that will.

But the revocation of a ______ does NOT revoke the _____.
The revocation of a WILL revokes all codicils to that will.

But the revocation of a CODICIL does NOT revoke the WILL.
DOCTRINE OF REPUBLICATION BY CODICIL

Under this, the valid execution of a _______ that makes EXPRESS _________ to the revoked will will _______ the will.
DOCTRINE OF REPUBLICATION BY CODICIL

Under this, the valid execution of a CODICIL that makes EXPRESS REFERENCE to the revoked will will REVIVE the will.
CODICIL

Under the doctrine of republication by codicil, a will is treated as having been ________ on the date of the last validly executed ________ thereto.
CODICIL

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.
PROPERTY ACQUIRED AFTER EXECUTION OF WILL

A will is construed to pass ____ PROPERTY TESTATOR OWNS AT DEATH, including property acquired _______ execution of the will.
PROPERTY ACQUIRED AFTER EXECUTION OF WILL

A will is construed to pass ALL PROPERTY TESTATOR OWNS AT DEATH, including property acquired AFTER execution of the will.
INCORPORATION BY REFERENCE

To incorporate a document by reference:

(1) The document must be IN _______ at the time the will was executed;

(2) The will must _____ to the document as being in existence; and

(3) The will must ______ and DESCRIBE the document w/ _______ CERTAINTY.
INCORPORATION BY REFERENCE

To incorporate a document by reference:

(1) The document must be IN EXISTENCE at the time the will was executed;

(2) The will must REFER to the document as being in existence; and

(3) The will must IDENTIFY and DESCRIBE the document w/ REASONABLE CERTAINTY.
Can oral instructions be incorporated in a will by reference?
NO!

Oral instructions CANNOT be incorporated in a will by reference.
NONPROBATE ASSETS _______ BE DISPOSED OF BY WILL

These include:
o Property passing by ___ (eg. life insurance proceeds, employee benefits)
o Property passing by RIGHT OF __________
o Property held in ______
o Various written _________ (eg. bonds, securities, promissory notes)
NONPROBATE ASSETS CANNOT BE DISPOSED OF BY WILL

These include:
o Property passing by K (eg. life insurance proceeds, employee benefits)
o Property passing by RIGHT OF SURVIVORSHIP
o Property held in TRUST
o Various written INSTRUMENTS (eg. bonds, securities, promissory notes)
An authority created in a person enabling her to designate, w/i the limits prescribed by the creator of the power, the persons who shall take the property and the manner in which they shall take it.
POWERS OF APPOINTMENT: An authority created in a person enabling her to designate (w/i the limits prescribed by the creator of the power) the persons who shall take the property and the manner in which they shall take it.
VA recognizes a ________ POWER OF APPOINTMENT.
VA recognizes a LIMITED POWER OF APPOINTMENT.
A power exercisable in favor of anyone the donee chooses, EXCEPT herself or her creditors.
LIMITED POWER OF APPOINTMENT: A power exercisable in favor of anyone the donee chooses, EXCEPT herself or her creditors.
Power exercisable by the donee during her lifetime.
INTER VIVOS POWER OF APPOINTMENT: Power exercisable by the donee during her lifetime.
Power exercisable only by the donee's will.
TESTAMENTARY POWER OF APPOINTMENT: Power exercisable only by the donee's will.
What is included in a bequest of "personal property"?
What is included in a bequest of "personal property"?

o INTANGIBLE PERSONAL PROPERTY (eg. stocks, bonds)

o TANGIBLE PERSONAL PROPERTY
A will of two or more persons executed on the same piece of paper.
JOINT WILL: A will of two or more persons executed on the same piece of paper.
Two separate wills containing reciprocal provisions.
RECIPROCAL WILLS: Two separate wills containing reciprocal provisions.
LAPSED GIFTS

If a will beneficiary dies during the testator's lifetime, the gift ______ (ie. it fails).
LAPSED GIFTS

If a will beneficiary dies during the testator's lifetime, the gift LAPSES (ie. it fails).
ADEMPTION BY EXTINCTION

When specifically bequeathed property is NOT in the testator's estate at death, the bequest is ________ (ie. it fails).
ADEMPTION BY EXTINCTION

When specifically bequeathed property is NOT in the testator's estate at death, the bequest is ADEEMED (ie. it fails).
Bequest of a $ amount payable out of the general assets of the estate w/o a claim on any particular source of payment.
GENERAL LEGACY: Bequest of a $ amount payable out of the general assets of the estate w/o a claim on any particular source of payment.
A gift of a general amount that identifies a particular asset as the primary source of payment.
DEMONSTRATIVE LEGACY: A gift of a general amount that identifies a particular asset as the primary source of payment.
ADEMPTION BY EXTINCTION

o Applies to ________ devises and bequests

o Does NOT apply to GENERAL OR _________ LEGACIES
ADEMPTION BY EXTINCTION

o Applies to GENERAL devises and bequests

o Does NOT apply to GENERAL OR DEMONSTRATIVE LEGACIES
This provides that any person who contests a will forfeits his interests under the will.
NO-CONTEST CLAUSE: This provides that any person who contests a will forfeits his interests under the will.