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73 Cards in this Set

  • Front
  • Back
What is the difference between an executor and an administrator?
Executor = valid will names a person to administer the estate

Administrator = No one is named in the will or the decedent died without a valid will.
If an intestate leaves a spouse but no descendants, who inherits?
The spouse inherits the ENTIRE estate.
If the intestate was survived by descendants, all of whom are also descendants of the surviving spouse, who inherits?
The spouse inherits the ENTIRE estate.
If the intestate was survived by descendants, at least one of whom was not the surviving spouse's descendant, who inherits?
The spouse inherits 1/3 of the estate, and the other 2/3 passes to the decedent's descendants.
How can a spouse be disqualified from inheritance?
By willfully deserting or abandoning the other spouse and the desertion continues until the deserted spouse's death.

In such a case, the deserting spouse is barred from all statutory rights in the estate (intestate share, elective share, exempt property, family allowance, and homestead).

Note: The deserting spouse will not be appointed administrator of the estate if a beneficiary of the estate files an objection.
If any portion of the estate passes to the decedent's descendants, how do they take?
Per capita with representation (i.e., each living person at the first generational level takes a share, and the share of each deceased person at that level passes to his issue by right of representation).
If the intestate is not survived by his spouse or descendants, who inherits?
The estate passes to the decedent's parent(s).

Note: If a parent willfully deserts a minor or incapacitated child, and the desertion continues until the child's death, that parent is disqualified from inheriting. Also, the parent will not be appointed administrator of the child's estate if a beneficiary of the estate files an objection.
If the intestate is not survived by spouse, descendants, or parents, who inherits?
The estate passes to the decedent's brothers or sisters (i.e., the descendants of decendent's parents).

Note: The issue of deceased siblings will take by representation.
If the intestate is not survived by spouse, descendants, parents, or descendants of parents, who inherits?
1/2 of the estate passes to the maternal grandparents (or their descendants) and the other 1/2 passes to the paternal grandparents (or their descendants).

Note: If there are no surviving maternal grandparents or descendants there of, the entire estate passes to the paternal grandparents or their descendants (and vice versa).
Does VA have a laughing heir statute? What happens if the decedent dies leaving no living relations?
The estate will pass to the kin of decedent's last deceased spouse. If none, then the property of the decedent will escheat to the state.
Is a will provision attempting to disinherit effective? If no, how do you disinherit someone?
No. To disinherit someone, the testator must take a complete disposition of his estate by will. Any portion passing by intestacy is governed by the intestacy statute, not the testator's will.

Example: A will provision such as "I do not want my son to take anything," will not prevent the son from taking intestate property.
Explain the inheritance rights of an adopted child.
Once adoption is finalized, the child and the child's descendants have full inheritance rights from the adoptive person/family (and vice versa).

Once a child has been adopted by a new family the child has no inheritance rights from the biological parents or their kin.

Exception: When the child is adopted by the spouse of her biological parent (1) the child retains her inheritance rights from both biological parents, and (2) as a result of the adoption by the stepparent, gains inheritance rights from the new adopting stepparent.
- So that child now has 3 parents he can inherit from.
Explain the inheritance rights of a non-marital child as they relate to his MOTHER.
A nonmarital child has full inheritance rights from his mother and his mother's kin (and vice versa).
Explain the inheritance rights of a non-marital child as they relate to his FATHER.
A nonmarital child can inherit from the biological father only if paternity is proven.

To prove paternity, one of the following tests for paternity must be met: (MAC)

Marriage - the father married the mother before or after the child's birth (even if the attempted marriage is void or voidable).

A - Adjudicated to be the father in a filiation proceeding and ordered to pay child support.

C- Clear and convincing evidence that the man is a BAD CAT

Birth Certificate: The man gave consent to an authorized person (other than the mother) to be named the father on the birth certificate.

Admits paternity (i) in court, or (ii) in writing under oath.

DNA - genetic tests or other medical evidence establish that the man is the child's father.

Cohabitation: The man openly cohabited w/ the mother during her ENTIRE pregnancy.

Allowed child to use his surname.

Tax return or other government document - he claimed the child as a dependent on his tax return or other govt document.
Under what circumstances can a biological father (and his kin) inherit from a nonmarital child?
Biological father can inherit from the child only if (1) MAC, and (2) the man openly treated the child as his own and did not refuse to support the child.
How long must a person survive a decedent to take as an heir or beneficiary (also applies to deeds, trusts, donative transfers, survivorship estates)?
Must survive by at least 120 hours (5 days). Survival for 120 hours must be established by clear and convincing evidence.

Failure to survive for the period results in the party being treated as having predeceased the decedent.
Can an heir/beneficiary disclaim an interest that otherwise would pass to him from the decedent's estate? If yes, what is the result?
Yes. The result of an effective disclaimer is is that the disclaimed interest passes as though the disclaiming party predeceased the decedent (or for irrevocable inter vivos trust, as though disclaimant was deceased at time trust was created).
What is the procedure for making a disclaimer?
A valid disclaimer must: (i) be in writing or other record, (ii) be signed, (ii) declare the disclaimer and describe the interest being disclaimed, and (iii) be delivered to personal representative of estate (if it's a will or intestacy interest).

If inter vivos trust, must be delivered to trustee. If life insurance proceeds or individual retirement account, must be delivered to payor.

If real property is involved, copy of disclaimer must be recorded in county where the land is located.
Are there any time limits for making a valid disclaimer?
There is no time limit as to when the disclaimer must be delivered, but time limits are relevant due to tax benefits.

To escape federal gift tax consequences, the disclaimer must be filed 9 months after decedent's death or 9 months after the establishment of the irrevocable trust.
For what reason might a beneficiary/heir disclaim?
To avoid gift taxes; to allow for themselves to be treated as predeceased and thus to benefit others; and to avoid money going to their own creditors.
Who qualifies as a "slayer" under VA's slayer statute?
The statute prohibits a wrongdoer from benefiting if:
(1) the person is convicted of murder or voluntary manslaughter of the decedent; or
(2) the person is found to be a murdered by a preponderance of the evidence in a civil proceeding where the person is not available for prosecution by reason of his death.
How is a slayer treated?
The slayer is treated as having predeceased the decedent. The slayer's descendants are substituted as takers.
Can a slayer take if he has a right of survivorship?
No. If one joint owner in a joint tenancy, tenancy by the entirety, or joint bank account kills the other, the killer loses the benefits of the of survivorship.

Result: The estate is converted into a tenancy in common, and the murdered decedent's interest passes under her will or by intestacy.
When does an advancement apply? When does an ademption by satisfaction apply?
Advancement applies to intestacy. Ademption by satisfaction applies to testacy.
What is advancement?
If a lifetime gift of SIGNIFICANT value is given to a DESCENDANT, the gift is PRESUMPTIVELY an advancement of the child's intestate share and it must be taken into account in making an intestate distribution.

Unless the descendant can rebut the presumption (by a preponderance of the evidence) by proving that the gift was not intended to be an advancement , the descendant must go into "hotchpot."
What is hotchpot?
This is the method of accounting for any advancements made to a descendant.

Any amount advanced is added to the net value of the estate, and the descendant has his share reduced by that amount. If the advancement is greater than the heir's intestate share, he NEED NOT return the excess.

The value of any gift is the value at the time it was received by the descendant, not the value at the death of the donor.
What is ademption by satisfaction?
The doctrine applies in situations where a testator provides a bequest in a will and then makes an inter vivos gift to the same person.

Unlike the C/L, in VA, a lifetime gift to a will beneficiary is NOT treated as being in partial or total satisfaction of a legacy unless: (i) the testator declares in a contemporaneous writing that the gift was intended to satisfy a legacy; (ii) the beneficiary acknowledges in writing that the gift is in satisfaction; or (iii) the will expressly states that legacies are to be reduced by such lifetime gifts.
What are the 3 forms of wills recognized in Virginia?
(1) Attested Wills
(2) Holographic Wills
(3) Noncupative Wills
When may the formal requirements of a will be dispensed with (i.e., describe VA's "harmless error" statute)?
Under the statute, even though an instrument is not executed in full compliance w/ the will execution statute, the instrument can nonetheless be treated as having been validly executed if the PROPONENT of the instrument establishes by CLEAR AND CONVINCING evidence that the decedent intended that the document constituted any of the following:
(1) the testator's will
(2) a partial or complete revocation of any will
(3) a codicil or modification of a will, or
(4) a partial or complete revival of the decedent's formerly revoked will or of a portion of the revoked will.
When did the harmless error statute in VA take effect?
July 1, 2007. Thus, the statute does not apply to situations where the decedent died prior to this date.
What does the harmless error statute not excuse? Are there any exceptions?
Requirements associated with the testator's signature.

2 Exceptions: (1) if two persons mistakenly sign each other's wills, or (2) a person signs a self-proving affidavit and not the will itself.
What is the procedure for using the harmless error statute and what is the statute of limitations?
Only available when a petition is brought within 1 year of the decedent's death.

All interested parties must be made a party.
What are the general requirements for executing a will?
(1) Must be 18 years old (or emancipated) and of sound mind to make a will.

(2) Testamentary instrument (note: will has no legal effect until the testator's death and may be revoked/amended until that time).

(3) Testamentary intent - to be valid, the testator must PRESENTLY intend that the particular instrument operate as her will. Such intent must be ascertained from the face of the will.
What are the general requirements for executing an attested will?
(1) Must be signed by the testator (or by another person in her presence and by her direction) in the witnesses' JOINT presence;

(2) TWO witnesses must sign the will in the TESTATOR's (but not necessarily each other's) presence.
What qualifies as a signature?
Any mark affixed with the intent that it operate as her signature.
Do the witnesses have to be competent at the time of attestation? If yes, what does this mean?
YES. At the time of attestation, they must be able to testify to the facts of the will's execution in court.
Do the witnesses have to sign the will at the end?
NO
Do the witnesses have to be disinterested parties?
NO. VA has abolished the interested party rule. A person is not incompetent to testify solely b/c of an interest in the will or the estate of the testator.

Note: The person named as executor can also be an attested witness.
Does an interested witness forfeit her interest?
No.
Does VA have a publication requirement?
No. The witnesses have validly attested even if they thought they were witnessing a deed, power of attorney, etc.
What if the witnesses are not present when the testator signs, or there is only 1 witness?
Under the harmless error statute, check and see if there is clear and convincing evidence that the testator intended this to be his will.
What is an attestation clause? Is it required?
An AC recites the elements of due execution.
It is not required, but all well-drafted wills contain an AC b/c it raises a presumption that the will was validly executed.
What is a self proving affidavit? Is it required?
An affidavit by the witnesses reciting all of the elements that the witnesses would testify to in open court.

If acknowledge by the testator and sworn to by witnesses before a notary public, it can be substituted for the witnesses' testimony. Thus, there is no need to call attesting witnesses. Sworn statement is accepted as if it has been given ore tenus before the court.

It serves the same function as a deposition or interrogatory.

It is not required.
What are the requirements of a holographic will?
(1) wholly in testator's handwriting (this must be proven by at least 2 disinterested persons)

(2) signed by the testator

(3) some indication (i.e., "death talk") that the instrument is intended to be a will

(4) the signature must be at the end OR there must be some formal closing statement (e.g., "this is my last will and testament")

Note: Any time the will does not contain words such as "this is my last W & T" discuss testamentary intent.

Note: The harmless error statute cannot be used to save a holographic instrument that lacks finality of the instrument.
What are the circumstances under which a person may make a noncupative will?
Very limited. VA recognizes oral wills only for soldiers in actual military service and sailors at sea.

These wills are valid for PERSONAL property only.
Who has the burden of proving due execution of a will? What is the standard?
When a will is offered for probate, the burden of proof is on the will PROPONENTS to show by a preponderance of the evidence that the will was duly executed.
What is the only issue at a probate hearing?
Whether or not the will was duly executed (issues concerning construction are considered in other proceedings).
What is an ex parte probate? Is it allowed in VA?
In an ex parte probate, there is no notice to interested parties.

Within 30 days after ex parte probate, the personal representative must give written notice of the proceeding to the decedent's heirs and other interested parties.
After will is admitted to probate (or probate is denied) in an ex parte probate, how can interested parties challenge the probate order?
(1) They have 6 months from the time the probate order is made in which to appeal to the circuit court.

(2) They have 1 year in which to file a bill in equity to impeach or establish the will already filed w/ the court.
What is an inter partes probate?
A full judicial proceeding with notice to interested parties and the right to a jury trial.
What does VA's anti-lapse statute do?
Absent a contrary will provision, the state operates to save a testamentary gift, including a divisee/legatee under a class gift, if the predeceasing beneficiary was a grandparent or lineal descendant of the testator's grandparents and left descendants who survived the testator.

The beneficiary's descendants are substituted as takers under the anti-lapse statute. They take by representation.
Does the anti-lapse statute apply to intestate succession or non-probate payable on death benefits?
NO. It applies only to wills.
What if the deceased beneficiary's will leaves "all my property to __"?
Doesn't matter. The anti-lapse statute names the substitute takers.
What if the will states "Blackacre to my brother Sam if he survives me? Would the anti-lapse statute apply?
No. The will always takes precedence.
If a residuary gift lapses, do the residuary beneficiaries who survive the testator take the deceased beneficiary's share in proportion to their interest in the residue?
YES.
Does the anti-lapse statute apply to void gifts such as where a beneficiary was already dead at the time the will was executed?
YES.
When does a class close? What is the result?
When any class member is entitled to distribution.

The result is that he class is closed and later-born class members do not share in the gift.

Note: children in gestation at the death of the testator are class members, but they must be born within 10 months.
What happens if the testator gets married after the will is executed ("omitted spouse")?
If a person marries after executing a will and the spouse survives the testator (by 5 days), the spouse take an intestate share of the testator's estate UNLESS:
--(1) the testator provides otherwise for the surviving spouse in his will (eg, "in the event i get married")
--(2) the testator executes another will after the marriage and this will is the operative one;
--(3) the new spouse disclaims any interest in the testator's estate through a valid prenuptial agreement.
If the testator provides for his spouse in his will, what happens if the testator gets divorced after the will is executed?
Absent a contrary provision in the will, a FINAL DECREE of divorce or annulment after the execution of the will revokes any disposition or appointment in favor of the former spouse.

The former spouse is treated as having predeceased the testator.
If the couple should remarry later, are the provisions in the will revived?
Yes.
Does the "divorce" rule revoke a bequest to a RELATIVE of the former spouse?
NO
Does the revocation by divorce rule apply to life insurance policies, individual retirement accounts, joint accounts, and joint tenancies?
YES. All death benefits are revoked.
After a divorce, what is the state of title to Blackacre if it is held in joint tenancy or tenancy by the entirety?
It becomes a tenancy in common. Each party takes 1/2 interest in the property.
What is a pretermitted child?
A child who is born or adopted AFTER the execution of the testator's will and no provision is made for them in the will.
If the testator had no other child living when the will was executed, what does the pretermitted child receive?
What he would have received under intestate succession.
If the testator had a child living when the will was executed, what does the pretermitted child receive?
He takes the lessor of:
--(1) an amount equal to the largest bequest made to any child; or
--(2) an intestate share.

Thus, if the testator had other children when the will was executed but made nothing for them, the pretermitted child (like his siblings) will take NOTHING.
Under what 3 circumstances does VA allow revocation of a will?
(1) physical act

(2) a valid subsequent will that expressly or impliedly revokes the previous will

(3) divorce or annulment, by operation of law, revokes any provisions in favor of the former spouse.
Under VA's harmless error statute, can the proponent of a document establish by clear and convincing evidence that the decedent intended a partial or complete revocation of the will even when the formal requirements of revocation are absent?
YES
Can a holographic will revoke an attested will?
YES
What must a testator do to revoke a will (or codicil) by physical act?
Will/codicil can be revoked in whole or part by cutting, burning, tearing, canceling, obliterating, or destroying it WITH the PRESENT intent and purpose of revocation.
Is revocation by physical act possible by another person (proxy revocation)?
Yes, provided that the revocation is (1) at the testator's direction, and (2) in the testator's presence.
Where a will was last seen in the testator's possession or control and cannot be found after the testator's death, what presumption arises? How can the presumption be rebutted?
It is presumed revoke. The presumption can be rebutted by clear and convincing evidence (if rebutted, a copy of the will may probated).
If a will is found after death in mutilated condition, what presumption arises?
Presumption arises that the testator did the mutilating with the intent to revoke the will.