Notes Summary: WILLS (VA)

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VA WILLS
INTESTATE SUCESSION
1. VOCAB a. b. c. d. e. Probate: court proceeding determining validity of executed will Personal representative: administrator of estate Heirs: People who take under intestate succession Descendents: Persons who take from a decedent in a descending fashion, such as children, g-children, etc. Devisees, Legatees, Beneficiaries: Persons who take under a valid will

2. INTESTATE DECEDENT SURVIVED BY SPOUSE a. Spouse takes ALL (even if children/relatives survive) UNLESS there is willful abandonment by spouse i. **Look for (a) Willful desertion or (b) if spouse is valid/legal b. Other Statutory Rights of Spouse (Intestate and testate) REFH i. Residence: but only if 1. Surviving spouse claims elective share 2. Decedent died intestate survived by descendants by a former marriage ii. Exempt personal property up to $15k: cars, household furniture iii. Family allowance: amount needed for maintenance/support for 1 year iv. Homestead allowance: $15k *If decedent NOT survived by a spouse, minor children are entitled to all above items *These rights take priority over creditor s claim c. If spouse AND non-marital children i. Spouse gets 1/3 of estate, non-marital descendants get 2/3 3. INTESTATE SHARES BY DESCENDANTS a. General Method: Per Capita with Representation i. First generation with a survivor splits equally, with sub-shares passing to issue of deceased descendants no $ to pre-deceased descendants without issue 4. INTESTATE DECEDENT NOT SURVIVED BY SPOUSE OR DESCENDANTS a. Distribution of Estate (in priority) i. Parents ii. Brothers and sisters (and their issue) iii. Grandparents b. VA: no limit on degree of kinship laughing heirs allowed c. If NO heirs, estate escheats to Commonwealth 5. SPECIAL CASES a. Half-Bloods (Half-siblings) i. Half-siblings inherit half as much as full bloods b. Stranger Adoption Children i. Adopted child and his/her descendants adopt from and through adopting parent ii. Child has no inheritance rights to biological parents c. Step-parent Adoption i. Child retains inheritance rights from biological parents AND gets rights from step-parent d. Non-marital Children (out-of-wedlock)** i. Full inheritance rights from mother ii. Inheritance from father ONLY IF (M.A.C.) paternity proven 1. Marriage of father and mother, before or after child s birth, OR

Notes Summary: WILLS (VA) 2. Adjudication to be father in filiation proceeding, OR 3. Clear and convincing evidence that man = B.A.D.C.A.T. a. Birth certificate b. Admission of paternity under oath c. DNA tests d. Cohabitation with mother during 10 months before child s birth e. Allowed to use surname f. Tax return or other government document

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6. SIMULTANEOUS DEATH** a. Uniform Simultaneous Death Act applies as default rule (decedent could make different terms) b. Rule: Beneficiary (testate or intestate) must survive decedent by at least 120 hours or 5 days otherwise, treated as predeceased i. If joint tenants, and beneficiary dies within 120 hrs, right of survivorship NOT triggered 7. ADVANCEMENTS (ONLY Intestacy) a. Lifetime gifts to ANY descendents intestate share of beneficiaries decreased to reflect advancement i. Any significant gift to any presumption of advancement b. If descendant cannot rebut presumption Hotchpot (method to account for inter vivos gifts) i. Hotchpot: Amount of gift, at time of transfer, is added back to estate and then taken off top of descendant s share 8. ADEMPTION BY SATISFACTION (ONLY Wills) a. Similar to advancement: presumption that when a testator makes a bequest and then makes an inter vivos gift to same person, presumption that the gift was in satisfaction of bequest (at common law) b. **Virginia Doctrine: NO satisfaction of legacies UNLESS inter vivos gift was i. Declared by donor IN WRITING to be in satisfaction of bequest, OR ii. Acknowledged by donee IN WRITING to be in satisfaction, OR iii. Will acknowledges that any lifetime gifts are in satisfaction of bequest 9. DISCLAIMER BY HEIR/BENEFICIARY a. Rule: If effective disclaimer, interest passed as through the disclaimant predeceased decedent b. Requirements for valid disclaimer i. Writing or other record AND signed ii. Delivered (but no time limit for effectiveness) 1. However, to escape federal gift tax consequences, delivery must be within NINE MONTHS 10. SLAYER STAUTE a. **VA Statute: Individual convicted of murder OR voluntary manslaughter (in criminal OR civil court) for an economic benefit from victim via will/trust/deed/intestacy CANNOT take i. Slayer treated as predeceased slayer s issue CAN take

Notes Summary: WILLS (VA)

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EXECUTION OF WILLS
1. CHANGES IN VA STATUTE (RIPE for questioning)** a. Harmless Error Statute (VA adopted UPC statute): Even if a document was not executed in compliance with the formalities required or the state s statutes, the document WILL be effective if the proponent or the will can establish by clear and convincing evidence that the decedent intended that the document constituted any of the following i. Intent of T s will ii. Partial/complete revocation of any will iii. Codicil or modification of a will, or iv. Partial/complete revival of a decedent s formerly revoked will b. However, this does NOT excuse signature requirements i. Exceptions C&C evidence can be introduced to validate will: 1. 2 people signed each others wills by mistake 2. A person signs a self-proving affidavit and not the will itself c. SOL: Petition must be brought within 1 year of death and all interested parties must be made a party 2. WITNESSED WILL REQUIREMENTS: a. Age: 18 (unless emancipated) b. Signature: By T or proxy (at T s instruction and in T s presence) c. Presence Requirement i. Rule: T must sign or acknowledge a previous signature in the presence of 2 W s together ii. Change: Proponent s C&C evidence of T s intent can supplant this requirement d. Number of Witnesses i. Rule: At least 2 attesting witnesses required ii. Change: ONE W sufficient if C&C evidence of T s intent e. Interested Witnesses i. No disqualification of witness if testamentary beneficiary f. Codicils (additions to an earlier will) i. Must be executed with similar formality ii. Change: Harmless error rule applies the same 3. HOLOGRAPHIC WILL REQUIREMENTS: a. Handwritten b. Signed by Testator i. Can be initials/nickname but must be complete c. Wholly in T s handwriting i. Handwriting must be proven by at least two disinterested persons d. Must be an indication that the instrument is intended to be a will (i.e. Death talk **Look for finality of instrument**

Notes Summary: WILLS (VA)

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PROOF OF WILLS IN PROBATE

1. DOCTRINE a. Burden of proof on will proponents b. If will is self-proved no need to call attesting witnesses c. SOLs: interests parties can challenge will admitted to probate i. Within 6 months, appeal to Circuit Court ii. Within 1 year, file a bill in equity to impeach or establish will already filed iii. Both trials de novo 2. ANCILLARY PROBATE a. Probate begins at D s domicile at time of death i. Law of domicile determines probate of all personal property b. However, real property passes according to law of location of RP 3. SELF-PROVED WILL a. If at execution: i. T acknowledges will ii. Witnesses acknowledge will iii. Before a public notary b. Then valid will no challenges to formalities

-------------------------------------------------------------------------------------------------------------------------------------LAPSED GIFTS Beneficiary Dies during T s Lifetime (WILLS only)

1. VA ANTI-LAPSE STATUTE **Discuss CL, then VA statute, requirements for anti-lapse (status, survival), taker under statute a. Common Law: if bequest made to person who predeceases T = lapsed went to alternate taker/residuary b. VA Statute: If a devisee/legatee is i. A relative of T, AND ii. Is dead when T dies or when will is executed surviving descendants of deceased devisee take iii. UNLESS a contrary intention appear in will 2. LAPSE IN RESIDUARY GIFT a. Still apply statute, but now in context of residuary estate (still, statute ONLY APPLIES TO RELATIVES) 3. CLASS GIFTS a. Rule: If class gift, and class member dies, A-L applies (if a RELATIVE); if not a relative gift split among remaining members of class (different than specific gift which goes to residuary) b. Rule of Administrative Convenience: Class is CLOSED when some class member is entitled to distribution i. Exception (VA): Children born within 10 months of T s death ARE part of class

Notes Summary: WILLS (VA)

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CHANGES IN FAMILY AFTER WILL IS EXECUTED

1. TESTATOR MARRIES AFTER WILL IS EXECUTED a. Omitted Spouse Doctrine (Default rule) i. New spouse is entitled to spouse s INTESTATE portion (assuming VALID marriage) ii. EXCEPT 1. T provides otherwise in his will 2. T executes another operative will after new marriage 3. New spouse disclaims interest via valid prenuptial agreement 4. New spouse does not survive T by 5 days 2. TESTATOR DIVORCED AFTER WILL IS EXECUTED a. Final decree of divorce or annulment after execution of will revokes any disposition made to former spouse i. Former spouse treated as having predeceased T ii. But, does NOT apply to relatives of former spouse (although no anti-lapse for non-blood relatives) b. Applies to all death benefits: bequests, life insurance policies, IRA s, joint accounts, right of survivorship 3. TESTATOR HAS A CHILD AFTER WILL IS EXECUTED (PRETERMITTED/OMITTED CHILD) a. 2 scenarios if T has or adopts child after will executed and no provision for the child i. If T has no other living children when will was executed: 1. Omitted child receives what he would have received under intestate share ii. If T does have other living children when will was executed and will made a bequest to that child: 1. Omitted child receives LESSER of (a) intestate share OR (b) equivalent of largest bequest to a living child iii. Adoption: T adopts child after will executed (and no provision for child)

REVOCATION OF WILLS
1. REQUIREMENTS FOR REVOCATION a. Three circumstances i. Revocation by PHYSICAL ACT 1. Requires: a. Touching of writing of the will (i.e. the words of the will) b. Can include material alterations (i.e. writing void ) ii. Revocation by a VALID, SUBSEQUENT WILL iii. DIVORCE/ANNULMENT revokes any provisions in favor of former spouse b. **Change in law Harmless Error also applies to revocation: C&C evidence that D intended a partial of complete revocation of the will can overcome noncompliance with formalities (but not signature requirements) 2. REVOCATION BY PHYSICAL ACT BY ANOTHER PERSON (Proxy Doctrine) a. Doctrine: Proxy revocation permitted 2 requirements: i. Revocation done at T s request ii. Revocation done in T s presence 3. PRESUMPTIONS REGARDING PHYSICAL ACT REVOCATION a. Lost Will i. When will cannot be found after T s death, presumption that T revoked the will ii. Presumption can be rebutted by C&C evidence, in which case a photocopy can be probated b. Mutilation i. When traced to T s possession and found mutilated, presumption that T mutilated will revocation

Notes Summary: WILLS (VA)

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4. REVIVAL OF REVOKED WILLS; DEPENDENT RELATIVE REVOCATION a. Doctrine: Once will revoked, there are ways it can be revived: i. Write a new will and execute it properly ii. Revoke any subsequent will that revoked a previous one by subsequent instrument BUT new/subsequent execution required no revival of revoked will w/o subsequent execution iii. Republish the will by subsequent codicil iv. Dependent Relative Revocation** 1. Even though will was revoked by physical act, the revocation was dependent on probate of another will that was never probated. If no probate of the latter will, the revocation of the first will is cancelled and the first will is revived 2. Doctrine: When revocation was premised on a mistake of law or fact as to the validity of another disposition, the revocation can be disregarded only revive the will revoked on premise of mistake (W2) (NOT T s intent) a. **NO REVIVAL OF WILLS REVOKED BY SUBSEQUENT INSTRUMENT** b. Proof of Lost Wills 3 part test i. Due execution must be proved ii. Cause of will s non-production must be proved iii. Contents of will must be proved by C&C evidence 5. IMPLIED REVOCATION a. Scenario: when W2 does not expressly revoke W1 W2 treated as a codicil and only revokes W1 to the extent that it is inconsistent with W1 i. If W2 is wholly inconsistent with W1, then implied revocation of W1 6. CHANGES ON FACE OF WILL AFTER SIGNED AND WITNESSED a. Partial revocations by physical act OK b. Holographic codicil formalities required

Notes Summary: WILLS (VA)

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PROBLEMS ASSOCIATES WITH TESTAMENTARY GIFTS

1. GENERAL PRIORITY FOR PRIORITY OF DECEDENT S DEBTS a. Paid in following priority i. Intestate succession (taken first) ii. Valid will gift (taken second) 1. Residuary gift (taken first w/r/t will) 2. General legacy - $ from no specific source (taken second w/r/t will) 3. Demonstrative legacy - $ from specific source (taken third w/r/t will) 4. Specific bequest (taken last w/r/t will) iii. Non-probate transfers (taken last) 2. ABATEMENT OF LEGACIES TO PAY DEBTS a. *Personal property before real property i. First exhaust personal property in order: Partial intestacy, residuary assets, general and demonstrative legacies, and finally specific bequests ii. Only after personal property exhausted is RP abated e.g. PP in specific request before RP in intestacy 3. EQUITABLE APPORTIONMENT OF ESTATE TAXES a. Estate tax exception: Estate taxes are apportioned among all estate beneficiaries pro rata i. EXCEPT: (1) Charitable deductions and (2) marital deductions are NOT subject to estate tax 4. ADEMPTION BY EXTINCTION Specifically Devised/Bequeathed Property Not in Estate at Death** a. Doctrine: If a SPECIFIC gift (item or land) is gifted but not in estate at time of T s death gift is adeemed by extinction devisee gets nothing b. Exceptions: i. No equitable conversion RP devised but later converted to PP ($) PP ($) still goes to devisee ii. Does not apply to demonstrative legacies (i.e. $ from Exxon stock, but T sells Exxon stock to buy Shell stock gift still good) 5. STATUTORY EXCEPTIONS TO ADEMPTION DOCTRINE a. Remaining Property i. Insurance proceeds payable AFTER T s death (proceeds from loss/destruction of specific gift) ii. Condemnation award for taking of property payable after T s death b. Guardian/Conservator i. If T deemed incompetent, and a specifically devised item sold by guardian/conservator, devisee gets a general legacy = to net sale price c. Bequest of Securities** i. Beneficiary takes any additional securities of the same entity b/c of action initiated by entity (e.g. stock split) ii. Beneficiary takes any bequested securities changed by action of entity (i.e. company bought out) 6. EXONERATION OF LIENS** a. Devisee takes real property and personal property subject to any mortgage/lien, etc. unless otherwise stated in the will i. Exceptions: 1. Lien created by an agent acting under durable power of attorney 2. Lien created by a guardian/conservator

Notes Summary: WILLS (VA)

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REFERENCE TO ACTS AND EVENTS OUTSIDE THE WILL**

1. INCORPORATION BY REFERENCE** a. Rule: Any document extrinsic to a valid will (not part of duly executed will) may be incorporated IF: i. Extrinsic writing was in existence when will was executed ii. Will shows intent to incorporate the writing iii. Will must describe the writing with reasonable certainty 2. LEGAL LIST** a. Rule: A separate list of personal property to pass to named recipients if T s will refers to the list, and the list may come into existence before OR AFTER the execution of the will. Required characteristics of list i. Refers only to tangible personal property (NOT $ or stock) ii. List may come into existence at time of will OR after execution iii. List must describe items with reasonable certainty iv. List must be signed by testator v. Will must refer to the list and will must be valid 3. ACTS OF INDEPENDENT SIGNFICANCE ** a. Rule: When will names things that change (i.e. my car ), gift = whatever meets the description at T s death

Notes Summary: WILLS (VA)

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OTHER WILLS DOCTRINES

1. MISTAKES/AMBIGUITIES IN THE WILL a. Plain Meaning Rule: You CANNOT change plain, obvious language, even if extrinsic evidence of mistake b. Latent Ambiguity i. E.g. To my favorite nephew ii. Extrinsic evidence IS admissible to cure uncertainty includes facts and circumstances evidence and evidence of T s declaration of intent iii. If extrinsic evidence does not cure ambiguity GIFT FAILS c. Patent Ambiguity i. E.g. Twenty-five dollars ($25,000) to Bob ii. Extrinsic evidence IS admissible to cure ambiguity including: facts and circumstances, T s declaration of intent, T s statements to attorney 2. ATTORNEY LIABILITY FOR NEGLIGENCE a. Rule: Privity of contract required for negligence suit against attorney i. Thus no cause of action for intended will beneficiaries ii. Still, attorney can always be subject to discipline 3. BEQUESTS OF ALL PERSONAL PROPERTY a. Rule: All personal property includes intangible AND tangible property 4. POWERS OF APPOINTMENT** a. Scenario: Life estate plus you pick i. General Testamentary Power of Appointment: Donee not limited in the class of beneficiaries she can pick it can include herself, her estate, her creditors, etc. ii. Special Power of Appointment: Limit on donee s picks b. **Donee must make REFERENCE to P.O.A. in her own will in order to actually exercise the power and bequeath the property i. But, specific reference to property subject to POA = implied reference to POA ii. However, if donor requests that donee make specific reference to POA, donee must specifically refer to POA and the specific property 5. CONTRACTS RELATING TO WILLS a. Will and K are completely separate. To be a K, a will use K language and formalities b. Joint and Mutual Will (Survivor gets all) NOT a K unless it has K language and formalities c. Rule: Unless there is clear and convincing evidence of a K agreement (a) in the will (b) from extrinsic evidence or (c) by clear implication from the surrounding circumstances, then NO CONTRACT i. If a will IS held to be contractual 1. First apply law of wills 2. Then apply contract law 6. NONPROBATE ASSETS (Will Substitutes) a. Definition: Nonprobate assets are interests in property that are not subject to disposition by will or intestacy. No inheritance tax generated, and no probate administration required. Types: i. Survivorship Accounts: Property passing by right of survivorship ii. Payable on Death: Property passing by K: life insurance benefits, ITA, etc. iii. Inter Vivos Trusts: In trust for myself for life, and then at my death to my living issue. iv. Powers of Appointment b. **Will substitute ALWAYS trumps will**

Notes Summary: WILLS (VA)

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10

ELECTIVE SHARE STATUTE

1. SUMMARY OF RIGHTS OF SURVIVING SPOUSE a. Omitted Spouse i. Only qualified if married to decedent after execution of will and will has no provision for omission ii. Omitted spouse gets (1) Intestate share plus (2) statutory rights b. Statutory Rights i. Residence: ONLY if spouse files for elective share spouse can occupy residence rent free until rights determined ii. Exempt personal property: up to $15,000 iii. Family allowance: up to $18,000 c. Contest: i. Surviving spouse may always contest the will based on formalities or inetntionalities d. Elective Share Statute** i. Allows surviving spouse to reach nonprobate assets and some absolute gifts 2. AMOUNT OF ELECTIVE SHARE a. Descendants i. If decedent survived by children or their descendants, surviving spouse s share of augmented estate is ONE-THIRD of augmented estate b. No Descendants i. Surviving spouse entitled to ONE-HALF of augmented estate c. Also, spouse taking elective share is entitled to interest at 6% 3. PROCEDURE FOR ELECTION BY SPOUSE a. Time: Within 6 months after will is admitted to probate or administrator of intestate estate is appointed b. Eligible parties: (1) Valid spouse or (2) Court if spouse is incapacitated c. Contribution to share: If election made, all beneficiaries contribute pro rata by the same percentage d. Public Policy**: A spouse is disqualified from elective share if he/she willfully deserted or abandoned decedent without cause 4. COMPUTING THE AUGMENTED SHARE a. Probate Estate i. Property owned and passing at death by will or intestacy, after payment of debts/expenses b. Transfers to Spouse i. Includes inter vivos gifts and nonprobate transfers ii. Exception: tangible, personal property c. Transfers to Third Parties i. Includes certain lifetime absolute gifts and nonprobate transfers that benefit third parties 1. Strings-attached lifetime transfers: transfers in which decedent retained right to income, right to revoke, etc. 2. Life Insurance payable to third party 3. Employee Death Benefits 4. Gifts in excess of $10,000 within the last 5 years to the same donee (aggregate total > $10k) 5. Survivorship estates: J&S survivorship accounts, joint tenancies, etc.(but spouse adds only half because spouse already owns half) d. EXCEPTIONS NOT INCLUDED i. Joinder: transfers made with spouse s joinder or written consent ii. Old transfers: irrevocable transfers to third parties before 1/1/1991 iii. Gifts to deceased spouse: from someone other than surviving spouse

Notes Summary: WILLS (VA)

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11

WILL CONTESTS** (CERTAIN FOR EXAM)

1. STANDING TO CONTEST a. Only interested parties those who have suffered an economic disadvantage by the will s probate 2. LACK OF TESTAMENTARY CAPACITY a. Scenario: Whenever a T lacks testamentary capacity at the time of execution ENTIRE will denied b. Burden of Proof i. Preponderance of evidence (lowest BOP) on proponents of the will to proof testamentary capacity c. Test for Capacity 4 elements Did testator: i. Understand the nature of the act he was doing (making a will)? ii. Know the extent of his wealth? iii. Know the natural objects of his bounty? (Children, spouse, etc.) iv. Able to interrelate the three facts above? d. Legal determination of incompetency/incapacity is NOT sufficient to prove testamentary incapacity 3. UNDUE INFLUENCE a. Scenario: If proven, only part of will that is influenced is denied probate b. Burden of proof i. Burden on will contestants to prove suspicious circumstances, conduct by the beneficiary that demonstrates a desire to overcome the mind of the testator ii. Evidence is usually circumstantial, but the following ALONE are NOT ENOUGH 1. Mere opportunity to exert influence 2. Mere susceptibility to influence due to age, illness, etc 3. Mere fact of unnatural disposition **None of these facts/circumstances alone are enough, but they can contribute to showing** c. Actual Test i. If contestants can prove than beneficiary had a confidential relationship with decedent, BURDEN SHIFTS and there is a presumption of undue influence 1. 5 types of confidential relationship a. Trust * b. Priest -Penitent* c. Doctor-Patient d. Guardian-Ward e. Attorney-client ii. Once burden shifts, then the presumption of U.I. is only rebuttable by preponderance of evidence as to testator s mind and ability to resist undue influence 1. Evidence must focus on T s mind, as able to resist 4. NO CONTEST CLAUSES a. Doctrine: NCC = clause that says if anyone contests the will, they lose their bequest b. Majority Rule: No-contest clauses are fully enforceable unless the contest was made in good faith and probable cause if contestant had PC, then no forfeiture of bequest c. Virginia Rule: VA probably does NOT recognize a probable cause exception more strict enforcement of NCC **Discuss both rules VA law unsettled** d. Exceptions to NCC enforcement i. Election, petition for omitted spouse or petition to become an omitted heir are NOT contests and will NOT trigger penalties associated with a no contest clause

Notes Summary: WILLS (VA)

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12

ESTATE ADMINISTRATION (Unlikely Feb. exam question)

**Applies only to intestate estates** 1. JURISDICTION FOR PROBATE a. Rule: Estate probated where decedent was DOMICILED where decedent intended to be i. If decedent in a nursing home, then look to county of previous residence 2. APPOINTMENT a. 3 steps Executor must i. Take an oath that will is decedent s last will, as far as she knows, and that she will ii. Faithfully perform her duties as executor, and she must iii. Post bond equal to the value of John s present estate, plus the value of any real estate over which the executor is given a power of sale b. Non-VA resident CAN be an executor of estate and a trustee of testamentary trust i. But non-resident executor must appoint t a resident agent for process ii. Non-resident bank cannot serve as an executor c. Priority of persons for appointment i. During the first 30 days 1. Spouse who is the sole distribute 2. Spouse who has written consent of all decedent s competent children 3. Any distributee who is the sole heir 4. Any distributee who secures written waivers from all other competent distributes ii. After 30 days, any distributee may be appointed as court sees fit