Question | Answer |
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 | |