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- Probate: the judicial proceeding determining whether decedent left valid will or, if the will is invalid, determine intestate heirs
- Personal Representative: if a valid will names a person to administer = executor; if no is named and decedent died intestate = administrator
- Heirs: persons who take under intestate succession
- Descendants: person who take from a decedent in a descending fashion (childre, grandchildren)
- Devisees, Legatees, Beneficiaries: person who takes under a valid will
Survived by Spouse
- If decedent dies intestate with a surviving spouse and no children from other marriages, the spouse takes the entire estate, regardless of whether decedent leaves other relatives.
- If decedent leaves children from another marriage, the surviving spouse gets 1/3, remainder divided among all decedent’s children. On top of that, the surviving spouse (minor children if no surviving spouse) has statutory rights to REFH - Residence (1 yr, rent free), Exempt personal property (15k), Family allowance (while estate is in administration, <18k without petition), and Homestead allowance (only if spouse gets less than 15k from the estate and doesn’t take an elective share).
- If a spouse willfully deserts (without cause, like domestic), she is barred from taking under intestacy or through a will, from her elective share, family and homestead allowances, and from serving as administrator if an heir objects
- Intestate succession is per capita with representation - we divide at the first horizontal line where there is a survivor by the number of children.
- If anyone in that generation is dead, his children take his shares per stirpes (ratably, ex: decedent has a 1/5 share and 3 children; they each get 1/15).
- If there are no descendents, then the parents take.
- If there are no parents, then brothers and sisters (and their descendents/first-line collaterals) take; half-bloods (only 1 parent in common) get half as much as whole bloods.
- If no brothers and sisters (or first line collaterals), then each set of grandparents take half.
- There’s no laughing-heirs statute, we do this forever.
- If decedent has absolutely no living relations, then the estate escheats to Va.
Adopted Children & Children Born out of Wedlock
- Adoption: Adoption by a stranger severs the connection with the biological parents.
- The children then take from the adoptive parents and not the biological parents.
- The biological connection remains when children are adopted by a step-parent; the children take from both.
- Non-marital children take from their fathers if paternity is proven by MAC -
- Marriage, Adjudication, or Clear and convincing evidence of BADCAT -
- Birth certificate names him as father, and he consented to it,
- Admits paternity under oath,
- DNA evidence establishes paternity,
- Cohabitation 10 mos before child’s birth,
- Allowed child to use his last name,
- claimed child as a dependent on his Taxes).
Simultaneous Death/Deaths in Quick Succession
- To take under a will, intestacy, or any non-probate instrument, the beneficiary must survive decedent by 5 days/120 hours.
- A T can extend this time period for up to 90 years.
- Dying within 5 days is as if the beneficiary predeceased.
- In intestacy, there is a presumption that any substantial gift to a descendent was an advancement.
- The value of the gift goes into hotchpot and is added to decedent’s estate.
- That new amount is divided, and the descendent who received an advancement sees his amount reduced by the amount of the advancement.
- The presumption can be rebutted by proving a gift occurred.
Ademption by Satisfaction
- By contrast, there is a presumption against ademption by satisfaction, which only applies where there is a will.
- Va reversed the CL rule that there was a presumption of ademption by satisfaction if T made an intervivos gift that was the same as the bequest in his will.
- Now ademption by satisfaction occurs only if the will says lifetime gifts are in satisfaction or if T or the donee acknowledges the satisfaction in writing
Disclaimer (Renunciation) by Heir or Beneficiary
- For disclaimer (release if alive; renunciation if dead) to be valid, it must be in writing, signed, and delivered to PR/trustee/payor.
- If it’s for tax reasons, the disclaimer must be filed within 9 months of decedent’s death.
- The slayer statute prohibits anyone convicted (or found by a preponderance in a civil trial) of intentionally killing (murder/voluntary manslaughter) the decedent from taking by will/intestacy/non-probate.
- But the slayer’s descendants can still take.
EXECUTION OF WILLS
- Three kinds of wills
- 1. witnessed wills
- 2. holographic wills
- 3. nuncupative will (soldiers and sailors)
Harmless Error Statute
- Virginia has a harmless error statute applying to anyone dying after July 2007 and has a 1 yr SoL.
- If a proponent can provide by clear and convincing evidence that decedent intended the document to be his will, a revocation, a codicil, or a revival of his will, then it is effective as such despite decedent’s failure to comply with the formalities of execution - witnesses, etc.
- It only cures defects regarding the decedent’s signature if he and his wife signed each other’s wills or if he accidentally signed a self proving affidavit instead of the will
Requirements for a Witnessed Will
Witnessed wills: T must sign/direct someone to sign for him in his presence, and 2 witnesses must be there when he signs/acknowledges his signature, and it doesn’t matter if they’re interested (would receive more than they would through intestacy)
Holographic wills must be completely handwritten and signed by T and indicate that D intended it to be his will.
Proof of Wills in Probate
- Proponents have the burden of proof of due execution.
- Self-proving affidavits (T and Ws acknowledged the will before a notary) meet the evidentiary burden that formalities were followed.
- Alternatively, the testimony of 1 of the 2 witnesses meets this burden.
Statutes of Limitation in Probate
There is no SoL for probating a will. But interested parties have 6 months to appeal a probate order to CC and 1 yr to file a bill in equity to impeach a will already filed with the court.
Choice of Law
The law of decedent’s domicile determines what probate law applies. But real property in another state passes according to that state’s probate law, not where decedent was domiciled
BENEFICIARY DIES DURING TESTATOR'S LIFETIME
VA Anti-lapse Statute
- Anti-lapse statute applies only to wills, not intestate succession/non-probate transfers.
- It provides that if a decedent’s relative predeceases him, the relative’s descendants take in place.
- If there are no descendants, the anti-lapse statute doesn’t apply, and the lapsed gift falls into the residuary clause.
- The anti-lapse statute applies to class gifts to relatives, so the children of a predeceased relative can take in his place.
- The class closes at T’s death
CHANGES IN FAMILY AFTER WILL IS EXECUTED
- An omitted spouse/child (married/born after the will) receives what she would in intestacy, unless T says otherwise in the will or executes a later will or unless the new spouse/child disclaims or doesn’t survive by 5 days.
- An omitted child takes the lesser of what he would in 1) intestacy or 2) the largest bequest given to another child in the will
Testator Is Divorced after Will Is Executed
- If T divorces after execution, the spouse is treated as having predeceased T.
- The divorce does not revoke specific gifts to the former spouse’s relatives.
- Revocation after divorce applies to non-probate transfers too, revoking the right of survivorship and transfers all joint tenancies/tenancies in the entirety into tenancies in common.
Revocation of Will
- Revocation can occur by physical act of destruction (touching the writing), a subsequent will (implied revocation), or divorce.
- T can direct another to revoke his will, so long as it’s done in T’s presence. But the harmless error statute can cure this defect.
- If the will can’t be found at D’s death or is found in mutilated condition, we presume D revoked it
Revival of Revoked Wills
A will may be revived by a properly executed new will, revoking a new will that revoked the old one then re executing the old one, republication by codicil, or dependent relative revocation (where revocation of the old will was dependent on probate of the new will, and the new will wasn’t probated - basically presumes that the first will is better than no will)
PROBLEMS ASSOCIATED W/ TESTAMENTARY GIFTS
- Debts are taken from intestate personal property first, then from assets devised in wills - the residuary, then general legacies (general amount, source not provided for), demonstrative legacies (general amount, source known), specific bequest.
- Debts unsatisfied by assets passed in a will are taken from non-probate transfers ratably.
- In each category, personal property is taken before real property.
- For assets passed by wills, all personal property abates before any real property abates.
- That means specific bequests of personal property abate before land in the residuary abates.
- Property liens are the exception. They pass with the property.
- Estate taxes are treated differently than debts. They are apportioned pro-rata.
Ademption by Extinction
Specific property not in existence at death is adeemed by extinction (legatee gets nothing), with exceptions for equitable conversion (donee gets any remaining payments from the property decedent sold) insurance proceeds (property lost/stolen) and securities (bought by another company/stock splits).
REFERENCE TO ACTS AND EVENTS OUTSIDE THE WILL
Incorporation by Reference
T can incorporate into his will a separate document that existed at the time of execution. His will must show intent to incorporate and describe the document with reasonable certainty
- need to be in existence at the time of execution.
- It may refer only to tangible personal property (not money or stocks), and it must describe the items with reasonable certainty.
- T must sign the list and refer to it in his will.
Acts of Independent Significance
T can devise items that continue to change between execution and death (car): “I give the car I own at my death to my nephew Normon.”
Wills are read according to their plain meaning (100 shares are 100 shares).
Latent (more than 1 people fit the description) and patent (mistake appears on the face) ambiguities can be cured by extrinsic evidence, including facts and circumstance and T’s declarations of intent. If we can’t solve the ambiguity, the gift fails for uncertainty.
Attorneys are liable for negligence only where there’s privity of contract. This means that beneficiaries under the will can’t sue the attorney for malpractice.
Bequests of All Personal Property
Bequests of “all personal property” are read in context. Personal property includes things like stocks and bonds, so if T bequeaths all the furniture in the living room and personal property, then he bequeaths only property similar to furniture.
Powers of Appointment
- T can give power of appointment, so the donee can choose who she gives the property to.
- If the donee can give the property to herself, her estate, or her creditors, it’s a general power of appointment.
- Otherwise, it’s a special power of appointment.
- If she can exercise the power only by will, it’s a testamentary power.
- Donee must mention the clause to exercise it, so failure to mention the clause is failure to exercise; it does not go into the residue.
- T can name takers in default who will receive the property if the donee fails to exercise the property.
Contracts Relating to Wills
- If a contract relates to a will, there must be clear and convincing evidence of the contract (in the will, from extrinsic evidence, or by clear implication of surrounding circumstances).
- If so, we apply wills law first and contract law second.
- If T contracts to not revoke his will, under wills law, he can always revoke it and impose a new will. So the new will would still be valid. Then we would apply contract law and maybe impose a constructive trust on the gift.
NonProbate Assets (Will Substitutes)
- survivorship accounts
- payable/transferable on death benefits (life insurance)
- intervivos trusts
- power of appointment
- The non-probate asset beneficiary will always trump the will. So if T provides, “I direct that my life insurance be paid out to B,” but A is the named beneficiary, A takes, not B
- A surviving spouse has the right to take an elective share (1/2 if decedent left no descendents; 1/3 if descendants) of the augmented estate by filing notice of her election within 6 months of the will’s admission to probate or after the administrator’s been appointed in the case of intestacy.
- If she is incapacitated, the court can elect on her behalf.
- She can also get REF statutory benefits.
- But a deserting spouse is barred from both.
Procedure/Computing Augmented Estate
- The augmented estate includes the probate estate, transfers to the surviving spouse (lifetime gifts and non-probate transfers at decedent’s death), and transfers to third parties with STRINGY LEGS (strings attached lifetime transfers where decedent retained right to income, power to revoke, or the right to consume/dispose; life insurance paid to a third party; employee death benefits; aggregate gifts > $10k over the past 5 years, and survivorship accounts.
- The elective share is one-half or one-third of that sum.
- Once we take one-half or one-third of the augmented estate, we deduct from the quotient transfers to the surviving spouse, and get the net elective share.
- The other beneficiaries’ gifts are then reduced ratably to make up the elective share. To determine the percentage each will give, we divide the net elective share by the augmented estate less the transfers the surviving spouse has already received.
- The augmented estate does not include transfers to third parties to which the spouse consented in writing, irrevocable transfers to TPs before 1991, and gifts to decedent from someone other than the surviving spouse that decedent kept in a trust.
- Augmented Estate (AE) = Probate Estate + Transfers to Surviving Spouse + Transfers to Third Parties
- Elective Share = Augmented Estate/n
- Net Elective Share = (AE)/n-TSS
- % cont = NES/(AE-TSS)
- Probate Estate
- + Transfers by decedent to Surviving Spouse
- + Transfers to 3d Parties
- = Augmented Estate
- - (Amount of Elective Share)/(Elective Share)
- - any partial satisfaction of Elective Share
- = Net Elective Share
- Then find out how much of that share remains to be paid from "corpus" of testamentary property
- (Net Elective Share)/(Amount Subject to Contribution) = rate at which all others' gifts are reduced
Only an interested party (economic interest that would be adversely affected by the will’s probate) has standing to bring a will contest.
Lack of Testamentary Capacity
- Proponents of a will must prove by a preponderance that at the time of execution T had sufficient capacity to NENI - understand the nature of what he was doing (signing a will), know the extent of his wealth, know the nature of the objects of his bounty (his family members), and interrelate them.
- Just because a person’s been judged incompetent does not mean he lacks capacity to execute a will.
- Incapacity voids the entire will.
- Will contestants have the burden of proving undue influence (conduct reflecting a desire to overcome T’s will which affected portions of the will.
- A confidential relationship (trust and reliance, priest-penitent, doctor patient, guardian-ward, and attorney-client) creates a presumption of undue influence.
- The influencer can rebut with evidence that T was of strong mind and able to resist any undue influence.
- If the contestant proves undue influence, only the portions affected are revoked.
No Contest Clauses
- valid in Va, but they must provide an alternative taker
- Election, petition for an omitted spouse, or petition to become a pretermitted heir are not contests for this purpose.
Jurisdiction for Probate
- Wills are probated where decedent was domiciled at the time of death.
- If someone moved a T who could not fend for himself, his domicile remains despite the move. (use intended domicile)
- To qualify as an executor, the person must take an oath to faithfully perform her duties and post bond, unless waived by the will.
- If a non-resident wants to serve as executor/testamentary trustee, he must appoint a resident agent for service.
- If a person dies intestate, for the first 30 days after death, any of the following can move to be the administrator - spouse where D left no descendents, spouse with written consent of all D’s competent children, any sole heir, any distributee with written waivers from other competent distributees. After 30 days, the clerk of court may appoint any distributee she sees fit.