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T&E

QuestionAnswer
When does a lifetime gift occur? Delivery + Acceptance + Intent
Forms of non-probate transfer (Real Estate) Transfer on death deed; Joint Tenancy with right of survivorship; Revocable trusts; lifetime gift of remainder (by deed or trust)
Effects of non-probate transfer Avoid probate = no administrative costs or court fees; no delay; no public record; less susceptible to challenge
When do joint bank accounts create a survivorship right? When all contribute (presumption); only one contributes and no survivorship language (probably not); only one contributes and survivorship language (weaker presumption and donee must show gift)
What happens when a non-probate beneficiary predeceases? Generally: any death-time gratuitous transfer fails if designated beneficiary has predeceased (not survived by 120 hours). Exception: blood relatives via probate estate, unless transfer document had alternate designated
What happens when a non-probate beneficiary disclaims? Treat claimant as predeceased as to portion disclaimed. If no other taker, then goes to probate. If group gift or alternative named, then redirect outside probate
What happens when a non-probate beneficiary divorces decedent? Treat former spouse as predeceased. UNLESS federal law says otherwise or there is a settlement agreement (these can override conflicting POD designations that violate the agreement)
What happens when a non-probate beneficiary murders decedent? Treated as predeceased. Lose interest in property held as joint tenancy with right of survivorship
When is a non-probate device void because of undue influence? Direct Proof; Presumption 1: great weakness of mind & gross inadequacy of consideration/suspicious circumstances. Presumption 2: confidential rel & overmastering influence/induced dependence/spec type of rel. (agent, atty in fact, other fiduciary rel, fa
What is a constructive trust? equitable device to prevent unjust enrichment
What duties does a constructive trustee have? Duty to hand over asset to another person; Duty to care for asset until that happens.
What is subtracted from probate estate before distribution? surviving spouse's share of community property; estate expenses (lawyer's fees); debts
What happens when decedent owns community property surviving spouse's share is subtracted from estate
When does the small estate rule apply? Estate has less than $50,000 in personal property
When does intestacy apply? No valid will; no residuary clause in will; residuary clause in will is invalid
64.2-200: Course of descents surviving spouse (if kids NOT surviving spouse's, .3 to spouse, .6 to D's kids); kids/desc; parents; bros/sisters/desc.; moieties (.5 to maternal; .5 to paternal): grandparents, uncles/desc., great-grandparents, great-uncles/desc.; spouse's fam.; escheat
64.2-201 after funeral expenses, admin costs, debts, prop. NOT disposed of passes by intestate succession
What happens when an intestate heir predeceases? Goes to their offspring. If no offspring, share goes to other survivors in same line of succession. If no one else in line of succession, goes to next line.
What happens when an intestate heir disclaims? Treated as predeceased
What happens when an intestate heir murders decedent? Treat slayer as predeceased, no one else disqualified
When is a survivor considered a spouse of decedent? Must be a marriage certificate (unless it arose in a common-law-marriage state); Spouses until divorce decree entered unless settlement agreement says otherwise (but abandonment rule might apply)
When is a survivor considered a child of decedent? non-marital children; marital children; posthumous children; terminated parents (only if child was adopted by a step-parent and no abandonment); adopted children
How to calculate shares of half-relatives? Halves = 1/(2x+y); Wholes 2/(2x+y)
How to establish paternity with respect to a decedent? presumption if decedent is husband of child's mother and child is born less than 280 days after death; Genetic testing
Inheritance consequences of abandonment Parents can't inherit from kid they have abandoned & are treated as predeceased. Kid may inherit from parents who abandoned them. Def: desertion, breaking off cohabitation w/intent to breach matrimonial/parental duties (assistance & financial & emo suppor
Inheritance consequences of adoption New family adoption: child may only inherit from two adopted parents; Step-parent adoption: child may inherit from both biological parents and step-parent. Biological parent who no longer has legal rights may only inherit from child if no abandonment
Inheritance consequences of termination of parental rights resulting from maltreatment Parents cannot inherit from child. Child may inherit from parent
When is a would-be-heir a "slayer? murder or voluntary manslaughter
What happens to a slayer's inheritance? Treated as predeceased, no one else disqualified
Advancement Rule Applies when a decedent intended at the time of gift to a descendant that it be in lieu of all or part of an inheritance; if it was a gift of significant size, then presumption of advancement
Alternatives for management of minor's inheritance Guardian of estate; custodian; trustee
who is capable of executing a valid will anyone except those of unsound mind and unemancipated minors
Definition of sound mind (testamentary capacity) testator was capable at the time of execution of recalling nature/value of prop. owned, recalling natural objects of bounty, understanding what executing a will amounts to, and interrelating these three things
What is indicative of incapacity inability to recall nature/value of property owned; inability to recall natural objects of bounty; not understanding the meaning of a will; not being able to interrelate these three things
Rule of presumptions and evidentiary burdens for will contests alleging incapacity proponent starts w/burden; compliance w/execution formalities, then presumption of capacity; if unrebutted, find capacity; if rebutted as a matter of law then no will; if rebutted not as a matter of law fact-finder decides (if equal, presumption of capaci
definition of insane delusion decedent held belief that evidence at trial shows to be false; belief was so contrary to evidence available to decedent that no rational person in her position would have held it and belief was but-for cause of challenged will disposition
What happens when a insane delusion influences content of a will that portion of the will is held invalid and relevant property either passes through the valid residuary clause or through intestacy
Indicators of testamentary intent on the face of a document? reference to property, people, author's death
Besides four-corner evidence, what other evidence is used to determine testamentary intent? extrinsic evidence of circumstances
Rule precluding express disinheritance Can't expressly disinherit. Must bequeath otherwise
Non-probate transfer (other than real-estate) POD designation; Joint tenancy with right of survivorship; trusts
the four functions served by will formalities Ritual, Evidentiary, Protective, Channeling
requirements for valid execution of a holographic will (1) Written Instrument, (2) Signature by Testator, (3) Signatures by two witnesses, (4) Testamentary Capacity
requirements for valid execution of a non-holographic will (1) Instrument wholly in testator's handwriting (2) Signature by Testator, (3) two disinterested witnesses as to handwriting, (4) testamentary capacity
what constitutes a signature, rules relating to location of it Can be mark, cursive, print, someone else's as substitution as long as it is clear from the document that it was intended to be a signature; at end = clear/not necessary indication; near beginning = equivocal act; court considers T's experience/habits
nature and effect of a self-proving affidavit T & Ws confirm they signed will & how; avoids need 4 Ws 2 confirm upon T's death; verifies Ws were present 2 T @ same time when T signed; verifies each W was present 2 T when he signed as witness; requires notarization; can serve as attestation if Ws mist
when a court can excuse non-compliance with will execution requirements When there is substantial compliance; possibly when: absence of one witness; sweetheart will mix-up; witnesses weren't there at the same time; witnesses signing in presence of testator; witnesses signing after testator dead;
types of fraud in the inducement: changed intentions; in the execution: thwarted intentions
elements of undue influence, circumstantial evidence pertinent to each Behavior: coercion of testator (motive/opportunity); effect on testator: volition overcome (susceptibility/relationship); Causation: but-for cause of disposition (connection b/w bheavior an will; unnatural disposition)
how to overcome presumption of undue influence Motive: indifference; opprtunity: others present; susceptibility: strong will, good heatlh; relationship: independent advice; connection to will: no discussion; distribution: good explanation
nature and effect of no-contest clauses, when they operate to nullify a bequest or devise Enforceable; unclear if "good faith and probable cause" exception; look at language to determine scope; "resort to means provided by law 4 attacking validity of will" = contest, even if B w/draws b4 trial; Minor Bs bound by actions of Ps/guardians absent
general rule that courts do not correct mistakes in wills, exception for misdescription If language unambiguous, courts will not construe other meaning or consider extrinsic evidence unless misdescription
what redress a would-be beneficiary has for being left out by mistake if testator's mistake, then no redress; by lawyer, possible reovery for breach of K (no privity, but will beneficiary has 3d party beneficiary standing if "clearly and definitely intended" 3d party beneficiary of the contract
rules for when extrinsic documents become part of testamentary disposition, reasons for using them must exist at time of will execution, will clearly indicate document already exists and must describe doc. with reasonable certainty; legal lists must be singed/describe prop./ppl with reasonable certainty; guidance to executor must be notarized/signed
plain meaning rule When testamentary langauge is clear and unambiguous, apply it as written. (no correction for mistakes)
key rules of will construction If term has legal def. use it (unless clearly manifested intent 2 give it a dif. def.); favor complete disposition of the estate (avoid partial intestacy); in applyiing ref. 2 prop./unnamed persons, interpret will as if written just before T died
when different types of extrinsic evidence are allowed to aid interpretation of language in a will facts and circumstances (in any case of ambiguity); declratations of intent (only in cases of equivocation)
content, effect, and purpose of ademption rule bequests of property that are no longer in ownership of T at time of death fail
exceptions to the ademption rule stock split or merger/acquisition after will execution then equivalent value; insurance proceeds or condemnation award paid after T's death; guardian/conservator for incopetent/disabled T sold prop.; new property fitting description (if vague)
how to classify devises as specific, general, or demonstrative specific: exact thing to be devised is known; general: character of source known, but not to be substituted for source not in compliance; demonstrative: spec. source, but if source gone, another can be substituted.
Factors Relevant to Treating as Signature precise location; complete v. partial disposition; blank spaces; concluding statement; "given under my hand;" drafted all at once v. bit by bit; dating; separation from source of paper; punctuation; T's background
Fraud elements behavior - misrepresentation; mens rea - intend to deceive and purpose of influencing; effect on testator - T believes it; causation - influences disposition (particular disposition, make a will at all, not make a will, revoke a will, not revoke a will)
Fraud remedies
Undue Influence remedies induced action - ignore action/redirect to residuary unless throws off scheme/produces perverse result; induced inaction - CT for B's from F's bequest; induced revocation - probate will; induced not to revoke - CT for intestate heirs/Bs of new will
When presumption of undue influence arises T enfeebled of mind (age/brain injury); relationship of confidence or dependence and dominant person helped procure will; AND T previously manifested contrary intention (inc. implicitly by having no will)
Default lapse rule for predeceased beneficiaries Bequest/devise is null and passes as if B never included; except when class gift - redistribute to other members
Content, scope, effect, and purpose of anti-lapse statute B's share passes to descendents only if B was Ds GP or a descendant of D's GP
how a testator can override the default lapse and anti-lapse rules they can override by having contrary intent in their will
indicia of a class gift, descr. of Bs (as group v. by name); description of prop. (in aggreg. v. dist. shares/amts); common characteristic (fam. members even if by name if all same level of kindred and no 1 from level excluded; overall testamentary scheme disfavors intestacy
effect of finding a class gift when some members have predeceased and anti-lapse statute is inapplicable
effect of finding a class gift when new members added
pretermited spouse and pretermitted child rules if will made before marriage/child, then spouse/child (assuming no other children @ time of execution) entitled to intestate share; if T had one/more kids @ time of execution, lesser of intestate share or largest bequest/devise to child in will
effect of pretermitted spouse/child rules
rationale of pretermitted spouse/child rules
how can testator indicate a contrary intent re: pretermitted spouse/child rules
requiirements for disclaiming will bequest/devise must not exert control regarding estate
effect of disclaiming will bequest/devise
requirements for treating a lfetime gift as a partial or complete satisfaction of a will bequest intent must be in writing (th eill itself, contemporaneous writing by T, or ackknowledged by B)
When is a will beneficiary a slayer (wills) same crimes as in other contexts;
what happens when a will beneficiary is a slayer (wills) treat as predeceased; apply anti-lapse rule if close relative
effect of post-will-execution divorce on will bequests, devises, and nominations revokes bequests/devises/appts as executor
when a court will find that a contract to make or not revoke a will, or to make a partiuclar bequest or devise in a will, exists and is enforceable In writing, OK; Oral, must overcome dead man statute (need corroboration of Bs testimony by other witness testimony/circumstances); if oral + RE, overcome SOF (certain/def. terms; part performance; so far executed that refusal 2 enforce = against justice)
default rules regarding responsibility for a decedent's secured or unsecured debts secured debts pass w/prop.; unsecured debts paid from residuary first; if residuary not enough, subtract pro rata from general; if not enough, specific bequests/devise contribute pro rata
when can default rules regarding responsibility for a decedent's secured or unsecured debts be overridden by contrary intention in will
order in which estate assets are used to pay unsecured debt and income taxes
How to classify bequests as specific
how to classify bequests as general
how to classify bequest as demonstrative
rule for apportionment of estate taxes apportion pro rata among all B's of probate estate, non-probate transfers, and gifts within 3 years before T died
how can testator override rule for apportionment of estate taxes
What is a codicil
How to create a codicil same requirements for will; testamentary intent (refer to prop., ppl, testator's death) + capacity (compliance w/formalities, presumption of capacity) and statutory formalities
what effect does a codicil have on will?
4 basic ways a will can be wholly or partly revoked expressly, in writing; by inconsistent later disposition; physical act; atomatic operation of law (divorce, but not including in-laws; marriage; pretermitted child)
effect of partial revocation (assuming no class gift) specific - residuary; residuary - partial intestacy
effect of implicit revocation
effect of complete revocation intestacy
effect of express revocation
effect of revocation by physical act need revocatory act (cancelling must touch words; destruction); may be by proxy but need direction and conscious presence; need intent to revoke; effective immediately (no revival w/o reexecution)
presumptions that apply when a will cannot be found at testator's death if T possessed b4 death, presumption of destruction, then presumption of intentional revoke (rebut: show cause of will's disappearance & T's intentions unwavering til death); not in possession of T b4 death, presumped lost (rebut: show intent 2 revoke)
when does dependent relative revocation rule apply mistake re law or thwarted plan to execute new will is but-for cause of revocation
what happens when dependent relative revocation rule does apply? ignore revocation if that best serves T's intentions
rule of non-revival absent re-execution
various types of pretections the law today affords surviving spouses, when they substitute for other benefits (will, intestate share, or elective share), how they are satisfied homestead (20K; not off top; unclear whether totally in lieu or just subtracted); right 2 remain in house (when intestacy & spouse's share is 1/3; claiming elective share) (PR pay expenses); fam. allowance (off top; $2k/mo. /1 yr max); pers. prop. setasid
elective (forced) share rule
scope of elective (forced) share rule
effect of elective (forced) share rule
rationale of elective (forced) share rule
property reachable under elective share rule (what is included in the augmented estate) total of all prop. spouses own @ D's death (incl. D's prop. passing by non-probate transfer + what's in probate estate) + prop. either spouse gave 2 3d party in past 2 yrs - prop. received grauitously from 3d party & kept sep. - gifts D made w/ survivor's
how is surviving spouses's share calculated? calculate augmented estate; apply marital property percentage; multiply by 50%; subtract spouse's property; subtract what spouse gets under will or by intestacy; make up difference by taking from others
how is a surviving spouse's forced share satisfied (order of contribution) Subt. what spouse already got (nonprobate transfers from D; anything passing by wll/intestacy; survivor's marital prop.); remainder, pro rata from (other will B's; non-probate transfer B's; intestate heirs); if remainder, gift recipients from last 2 yrs.
ways by which elective share is waived (intentinal/unintentional) unintentional - fails to file election timely (6 mo. after admission of will 2 probate or appt. of administrator)/fails to file complaint 4 calculation timely (< 6 mo. after election filed and < 12 mo. after decedent's death 2 capture nonprobate transfers
why might spouse waive elective share
how is a waiver of elective share effected?
when is does a sweetheart will = K mirror image provisions, not sufficient; best evidence is explicit statement in wills/sep. writing but K can be found by witness testimony/circumstances; Not easy to find implicit agreement
other ways by which elective share is waived unintent.- abandonent/slaying; intent. - by agreement (must be written & signed/contained in ct. order & endorsed & entered in2 record & transcribed; whole/partial estate; unenforceable if unconscionable & failure 2 disclose & no knowledge (of D's prop.)
what types of writings can create a trust? must express intent to impose fiduciary duties; required for real property or when S is T
when are oral trusts allowed? if no real property or if S is not T; must express intent to impose fiduciary duties
when/how is a trust revocable presumption of revocability of inter vivis trusts; S has complete power; if uncertain whether S revoked/amended: (1) substantial compliance w/method stated in trust/(2) if none stated any way clearly & convincingly manifesting S intended 2 amend/revoke
difference between declaration of trust and deed of trust declaration: clear oral/written expression of intent 2 impose duties on self, ID of prop, ID Bs/allowed purpose; deed: clear oral/written expression of intent 2 impose duties on another, ID prop, ID of Bs/allowed purpose, delivery (constructive/symbolic)
elements of a trust capacity, competent adult, intent 2 impose duties on T, prop. id'd & transferred/set aside 4 T if S is not T (nonvested ok), ascertainable persons designated 2 whom duties r owed (non-charitale purpose/pet/class), T owes @ least 1 other B duties, if real
when can a trust exist without identified property in it when there are named beneficiaries
who may serve as trustee anyone; S may only serve if he is not the only trust beneficiary; Bs may serve only if they owe duties to at least one other person
what happens if no trustee is named? court will appoint
what happens if a named trustee declines? valid even if acted to preserve prop. and rejection notice sent w/in reasonable time
difference between trust and gift/bequest with precatory language "know my wishes"/"it is my hope." if directed to executor then trust created. if directed to will B, then presumption of no trust
difference between trust and promise to give a gift not necessarily enforceable
difference between trust and life estate trust imposes duties, life estate does not
difference between trust and a bailment no transfer of ownership/title in property delivered
when is constructive/resulting trust imposed? when a trust fails
when is a definite human beneficiary not necessary for a trust to exist charitable trust, animals, gravesite
bases for contesting a trust fraud, undue influence, settlor can dictate what constitutes a contest
when is a no-contest clause effective always to their full effect and strictly enforced, but forfeiture is disfavored so they are narrowly construed
nature/consequences of mandatory trusts creditors can attach whatever trustee is required to convey to debtor
nature/consequences of discretionary trusts if trustee chooses to pay out to B, must pay creditor instead
strategies for minimizing tendency of trustees to favor persons with remainder interest
when trust beneficiaries can transfer their interests presumption of transferability; no spendthrift provision
when any creditors/ogligees of settlor can reach trust property when revocable; sole B of income/principal; if creation of irrevocable trust was fraud; can reach 2 extent S gave up interest/control as 2 any retained interest in irrevocable trust; only receive funds postdistrib; tracks transferability; no spendthrift p
when any creditors/obligees of trustee can reach trust property when T fails to earmark
when any creditors/obligees of beneficiaries can reach trust property tracks transferability; no spendthrift provision; after distributed to B; child support, Bs lawyers, Taxes, Welfare/Medicaid (if s, all that could be paid; if not S, mandatory/support interest only)
requirements for modifying trust trust director/protector, S & all Bs consent, S consents + non-consenting Bs protected, all Bs consent + not inconsistent w/mat. purpose, not inconsistent w/mat. purpose + non consenting Bs protected, becomes unecon., S intent & terms affected by mistake
when beneficiaries can have a trustee removed. serious breach of duty, co-trustees can't function, ineffective, serves interests of B + not inconsistent w/mat. purpose + either change of circumstances or all Bs request, other bases articulated in trust instrument
non-waivable trustee duties good faith, compliance with terms of trust, act in accordance with beneficiary's interests
terminating trust by S revocation (if revocable), by their terms, action of parties, trust director/protector, no purpose 2 b achieved, purposes now unlawful/contrary to pub. poli/impossible, S + All Bs consent, S consents and nonconsenting Bs protected, All Bs consent + n
reasons a trustee might refuse consent to termination sense of obligation to settlor, don't think it advisable for the Bs, danger of overlooked Bs, professional reputation, lost fees
qualified self-settled spendthrift trust irrevocable, inter vivos, S interest = (1) a qualified=in sole discretion of indep. qualified T (2) not only inocme/principal B, T lives in VA+has custody of prop.; expressly incorps. VA law; contains spendthrift provis. governing S's interest; S has no p
basic duties owed to trust Beneficiaries good faith, compliance w/trust terms, loyalty (administer solely in Bs interests=no selfdealing, avoid interest conflicts, transactions w/ Bs presumed void, don't steal, unbiased jmt, no adverse interests), impartiality, comm, mgt (don't lend 2 insolvent
when is it permissible for a trustee to take trust property for his/her personal benefit reasonable compensation
how power of adjustment/unitrust can be used to address conflict of interest among Beneficiaries T may reallocate to achieve fairness, considering purposes/expected duration, S's intent, B's circum./rel. 2 S, prop. nature + expected developments, tax consequences); no selfdealing; unitrust created by T if income trust + not contrary 2 trust; apply 3-
limits on settlor's ability to confer power/discretion on trustees may not waive duty loyalty; may waive self-dealing; may waive impartiality; may waive periodic reporting (but B has a right 2 acctg on demand); prudent investment partly exlcudable; maintain complete rec. excludable; earmark not excludable, commingling no
beneficiary's remedeis against third parties when trustee breaches duty contract; tort; Only if aware T is committing breach, and No duty to inquire whether property is in trust No duty to inquire about T’s powers
prudent investment's connection to duty of impartiality