Term
| Examples of non-probate property (property that does not pass by will or intestacy): |
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Definition
1. Life insurance
2. Individual retirement accounts
3. Living and revocable trusts
4. Survivorship property |
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Term
| In order to receive property by intestate succession, or by survivorship (in a survivorship tenancy), a person must survive the decedent by how long? |
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Definition
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Term
| What are the different types of fiduciaries involved in the distribution of estates? |
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Definition
1. Executor - someone named under a will
2. Administrator - someone appointed by the court
3. Administrator C.T.A. - someone appointed by the court when the will does not name an executor, or the named executor refuses to serve
4. Administrator D.B.N. - a successor administrator, once one appointed administrator ceases to serve (can be an Administrator C.T.A./D.B.N.) |
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Term
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Definition
1. Someone who kills someone they could inherit from cannot profit from their wrongdoing
2. Triggered by murder or voluntary manslaughter; NOT by self-defense, involuntary manslaughter, or negligent homicide
3. Standard is preponderance of the evidence (so a conviction will always trigger the rule)
4. Burden is on the party seeking to bar the slayer's inheritance rights
5. Applies to intestacy, wills, and non-probate transfers (including survivorship property)
6. Slayer's children can still inherit through anti-lapse |
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Term
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Definition
1. When a party refuses to accept property
2. Person is treated as having predeceased the decedent
3. Must be in writing, signed, and delivered to the executor or administrator of the estate |
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Term
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Definition
1. Used to support the decedent's spouse or minor children (if there is no spouse) during the administration of the estate
2. Must be a reasonable amount
3. Needs to be approved by the court if it is over $18,000
4. Takes priority over all other claims against the estate
5. Surviving spouse or children must elect to use this allowance within 1 year of death |
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Term
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Definition
1. $15,000 cash to spouse or, if none, minor children
2. Must relinquish other rights under the will in order to take
3. Must elect to use within 1 year of decedent's death |
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Term
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Definition
If decedent has children or other descendants: surviving spouse can claim 1/3 of the augmented estate
If decedent left no descendants: surviving spouse can claim 1/2 of the augmented estate
Must claim within 6 months of when a will is admitted to probate
Note: A surviving spouse who is omitted from a premarital will can take an intestate share |
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Term
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Definition
1. Net probate estate (accounting for creditor claims)
2. Property the decedent has transferred to third parties
3. Property of the surviving spouse derived from the decedent, and
4. Transfers made by the spouse that were derived from the decedent
Note: Transferred property includes retained property, property with a right to enjoyment, or any amount from a gift exceeding $10,000 in a single year for the last 5 years |
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Term
| Net probate estate is the probate estate minus: |
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Definition
Family allowance, exempt property, funeral expenses and administration costs
Note: Not reduced for state taxes or homestead allowance |
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Term
| What is a surviving spouse's share when an estate passes by intestacy? |
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Definition
If there are children or decedents outside the marriage, the spouse gets 1/3
If no other descendants, the spouse gets everything
Note: DESERTING spouses lose all spousal rights (intestacy, elective share, family allowance, homestead exemption, exempt property, etc.) |
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Term
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Definition
1. Surviving spouse (either 1/3 or all)
2. Descendants (2/3 or all if no surviving spouse)
3. Parents
4. Descendants of parents
5. Grandparents
6. Descendants of grandparents
7. If no ancestors or collaterals, property goes to kin of decedent's deceased spouse
8. Last option: escheat to state |
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Term
| Division of property by descendants in the case of intestacy: |
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Definition
Children take their parents' share only if predeceased by their parent; property is divided evenly among the first generation with a survivor (including shares for deceased members of that generation); children of any deceased members of that generation get their parent's share, split equally between them
Note: half-blood siblings and collaterals (not ancestors or descendants) get half the share of a full blood |
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Term
| Four requirements for formal wills: |
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Definition
1. In writing
2. Signed by the testator
3. Signed or acknowledged in the presence of two witnesses, present at the same time, and
4. Signed by the witnesses in the presence of the testator |
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Term
| Can a will be signed by a proxy in VA? |
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Definition
| Yes, if done at the direction of the testator and in his physical presence. |
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Term
| In VA, may a beneficiary or executor witness a will? |
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Definition
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Term
| When can an extrinsic document be incorporated by reference into a will? |
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Definition
1. Exists at the time the will is made
2. Will, on its face, indicates the document's existence, and
3. Will identifies the document with sufficient specificity
Exception: A memorandum for tangible personal property need not be in existence at the time the will is made |
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Term
| When is a holographic will a valid will? |
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Definition
1. When it is wholly handwritten, or the handwritten portion stands on its own as a will
2. When it is signed by the testator
3. When the testator intended the writing to be legally effective as a will (proven by clear and convincing evidence) |
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Term
| An unsigned will can NEVER be admitted into probate except in which two instances? |
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Definition
1. Spouses sign each others' wills
2. Testator signs the self-proving affidavit on the back of the will |
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Term
| Does a later will always revoke a prior will? |
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Definition
| Not necessarily, in VA. The later will has priority, but non-contradictory terms of the first will may still be valid. |
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Term
| When does dependent relative revocation apply? |
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Definition
When a testator partially cancels a bequest but fails to properly replace it with a larger amount; rather than giving the beneficiary nothing, they will get the original amount
Note: Doesn't apply when the second (usually handwritten) amount is significantly smaller |
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Term
| Divorce revokes any provision in a will favoring the former spouse except in cases of: |
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Definition
1. Separation only (divorce from bed and board)
2. Abandonment (although deserting spouse may lose right to take by intestacy) |
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Term
| How can a revoked will be revived? |
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Definition
1. If a later will revoked an earlier will only by inconsistency (no express revocation), the revocation of the later will will revive the earlier one
2. A revoked will can be expressly revived by re-execution and republication by codicil |
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Term
| What is an anti-lapse statute? |
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Definition
1. A law that creates a substitute gift in favor of a beneficiary's descendants if the beneficiary predeceased the testator and was closely related to him or her (grandparents and their descendants, but not their spouses)
2. If testator references a beneficiary that was dead at the time the will was executed, anti-lapse applies and that beneficiary's descendants take by representation
3. Anti-lapse also applies to class gifts (e.g., a gift to "my sons" would be split among all sons, living or dead, and the shares of any who predeceased the testator would go to their children) |
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Term
| What happens to property when anti-lapse does not apply? |
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Definition
1. Specific gifts pass into the residuary
2. Class gifts are split evenly among the surviving members of the class
3. A lapsed gift of the residuary estate passes by intestacy
4. Cy pres applies to gifts to charities that no longer exist |
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Term
| What is the share of a pretermitted child? |
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Definition
The lesser of:
1. The amount the child would have taken under intestacy (nothing if there is a surviving spouse and no children from outside the marriage)
2. The largest amount received by any other child under the will
Note: If a minor child receives this gift, the property is held in trust until the child turns 18; if he dies, the property reverts back to the testator's estate |
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Term
| If a piece of property is being sold at the time a testator dies, is that property adeemed? |
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Definition
1. If the sale has not closed, the beneficiaries get the proceeds
2. If the property has been sold, the gift adeems by extinction, because it is no longer a part of the testator's estate |
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Term
| Does an estate have an obligation to pay of a mortgage on mortgaged property? |
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Definition
Not in VA; the mortgaged property passes subject to the mortgage unless otherwise specified in the will
Note: There is an exception when the lien was placed when the testator was incapacitated; in that case, the residuary pays off the debt |
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Term
| Order of abatement of property (to pay off the debts of creditors): |
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Definition
1. Property passing by intestacy
2. Property in the residuary
3. General bequests (cash)
4. Demonstrative bequests (proceeds from the sale of a specific property)
5. Specific bequests (artwork, etc.)
6. Real property abates last, in the same order as the personal property above |
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Term
| Standard for mental capacity to make a will: |
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Definition
| The testator was capable of recollecting his property, the natural objects of his bounty and their claims upon him, and he knew the business about which he was engaged and how he wished to distribute his property |
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Term
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Definition
1. Contestant has the burden of proving by clear and convincing evidence
2. Testator was subject to measures he could not resist, that controlled his volition, and induced him to do that which he would not otherwise do
3. There is a presumption of undue influence when the testator suffered from a weakness of mind, the testator named a beneficiary who stood in a relationship of confidence or dependence, and the testator had previously expressed contrary intentions |
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Term
| Are no contest clauses (clauses revoking bequests to anyone who challenges a will) enforceable in VA? |
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Definition
| Yes (but if the will is successfully challenged then obviously they don't apply) |
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Term
| Requirements for creation of a trust: |
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Definition
1. Settlor with capacity and intention to create a trust (can be oral; proven by clear and convincing evidence)
3. Beneficiaries
2. Trustee (can't be the sole beneficiary) |
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Term
| What is a spendthrift trust? |
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Definition
A trust where the beneficiary is prohibited from voluntarily or involuntarily transferring their interest (therefore creditors cannot reach the trust property until it is distributed to the beneficiary)
Exception creditors:
1. Child owed support
2. Judgment creditor who has provided services for the protection of the beneficiary's interest in the trust
3. Government entities, in most cases |
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Term
| Creditor's rights to revocable and irrevocable trusts: |
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Definition
1. Creditors of a settlor may reach any assets in any revocable trust, including after their death
2. In an irrevocable trust for the settlor's own benefit, creditors may reach the maximum amount that can be distributed to the settlor (there is an exception for self-settled spendthrift trusts where there is an independent trustee and at least one other beneficiary) |
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Term
| What are the fiduciary duties of a trustee? |
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Definition
1. Duty of loyalty (administer the trust solely in the interests of the beneficiaries; no self-dealing)
2. Duty of reasonable care
Note: Trustee may be personally liable if he breaches |
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Term
| How can a court modify a trust? |
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Definition
1. If the settlor and all beneficiaries consent, a court may modify a trust even if the modification impairs the material purpose
2. If the settlor does not consent, but all beneficiaries do, the court may modify a trust only insofar as it remains consistent with the material purpose
3. If not all beneficiaries consent (or cannot be found) a court may only modify a trust in such a way that protects the interest of the non-consenting beneficiaries |
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