Bar Prep: Wills in Virginia (100% Correct Answers)
Topics in Wills and Trusts correct answers 1. Intestate Descent and Distribution
2. Succession Problems Common to Intestacy and Wills
3. Execution of Wills
4. Revocation of Wills
5. Components of a Will
6. Contracts Relating to Wills/Joint Wills
7. Changes in Beneficiaries and Property after Execution
8. Restrictions on the Power of Testation
9. Will Contests
10. Probate and Estate Administration
Important Terms for Wills correct answers 1. Probate: Refers to the court proceeding in which it
is judicially determined that decedent left a validly executed will or, if the will is invalid, that the
decedent died without a will and his intestate heirs are then determined.
2. Personal Representative: If a valid will names a person to administer the estate, then this
person is called an executor, or it no one is named or the decedent died without a valid will, then
the person is called an administrator.
3. Testate Succession: When property passes under a valid will, the property passes testate.
4. Intestate Succession: If property passes outside of any valid will, and thus according to the
state statutes providing for this, the property passes intestate.
5. Heirs: persons who take under intestate succession.
6. Descendants: persons who take from a decedent in a descending fashion, such as children,
grandchildren, etc.
7. Devisees, Legatees, Beneficiaries: persons who take under a valid will, under testate
succession.
When Do Intestate Succession Rules Apply? correct answers Rule: when (1) the decedent left no
will, (2) the decedent's will is denied probate, or (3) the decedent left a will, but the will does not
make a complete disposition of the estate (partial intestacy).
Other Statutory Rights of Surviving Spouse correct answers In any question involving a
surviving spouse, it is appropriate to say something like:
"In addition, [the surviving spouse] is entitled to the following statutory rights, which take
precedence over any creditors' claims. These amounts are over and above the amounts passing to
[the surviving spouse] under any Last Will and Testament, by intestacy, or under elective share."
,The acronym to remember is REFH.
Intestate Share of Surviving Spouse correct answers 1. Not Survived by Descendants: SS gets
entire estate
2. Survived by SS's Descendants: SS gets entire estate
3. Survived by Non-SS's Descendants: SS gets 1/3, other descendants get 2/3
4. Desertion or Abandonment at time of Testator's Death: SS gets nothing
5. No SS or Descendants: to decedent's parent(s)
6. No SS, Descendants, Parents: to decedent's siblings
7. Escheat: property goes to the Commonwealth
Rights of SS: REFH correct answers 1. Residence: if but only if (i) surviving spouse claims an
elective share, or (ii) decedent died intestate survived by descendants by a former marriage,
spouse can live in principal family residence without charge for rent, taxes, insurance, until
spouse's rights in principal residence have been determined and satisfied.
2. Exemption of Personal Property up to $15,000: cars, household furniture, furnishings,
appliances, personal effects. If there is not $15,000 worth of exempt items in the estate, spouse is
entitled to cash or other assets to the extent necessary to make up the $15,000.
3. Family Support up to 1 Year: the amount of the family allowance, which must be
"reasonable," cannot exceed $18,000 unless petition is made for a higher allowance.
4. Homestead Allowance of $15,000: available only if spouse gets less than $15,000 from D's
estate. Moreover, if spouse claims an elective share there is no homestead allowance.
Intestate Shares: Per Capital with Representation correct answers Rule: each living person at the
first generational level takes a share (per capita), and the share of each deceased person at that
level passes to his issue by the right of representation (per stirpes).
No Laughing Heir Statute correct answers Rule: in Virginia, there is no limit on the degree of
kinship that qualifies one to be an heir.
Half Bloods correct answers Rule: under intestate succession among collaterals, half bloods
inherit half as much as whole bloods. This is a horizontal situation involving siblings who are
related through only one common parent.
Note: if all of the takers are half-bloods, they take equal shares
, Disinheritance correct answers Rule: to disinherit someone, the testator must make a complete
disposition of his estate by will.
Note: a provision attempting to disinherit someone is ineffective to prevent that person from
taking intestate property.
Adopted Children correct answers Stranger Adoption: the child and the child's descendants
have full inheritance rights from the adoptive family (and vice versa).
-Note: once a child has been adopted by a new family, the child has no inheritance rights from
the biological parents or their kin.
Stepchildren and Foster Children: no inheritance rights from step-parents unless formally
adopted, still allowed to inherit from biological parents.
Non-Marital Children: has full inheritance rights from
the biological mother (and the mother's relatives), and vice versa. In addition, the child can
inherit from the biological father but only if paternity is proven.
Proving Paternity: MAC correct answers 1. Marriage: the father married the mother before or
after the child's birth, even though the marriage is prohibited or void.
2. Filiation Proceeding: when judgment was entered against the man for child's support,
maintenance and education.
3. Clear and Convincing Evidence that man is a BAD CAT
-Birth Certificate
-Admission of Paternity
-DNA Tests
-Cohabitation
-Allowed Child to Use his Surname
-Tax Return or Government Document
Survivorship correct answers Rule: in order to be a survivor for purposes of inheriting under a
Last Will and Testament, intestate succession, or under any non-probate transfer, the beneficiary
under any of these must survive by at least 120 hours or 5 days.
Note: this is a default rule, so it can overridden by the will of the testator in his will.
Advancements correct answers Defined: lifetime gifts to children from parents (common law
rule) of significant value when viewed from the perspective of the parents' estate.
Rule: if a lifetime gift is given to a child (or any descendant in VA) of significant value, the gift
is presumptively an advancement of the child's intestate share, to be taken into account in
distribution of the intestate estate of the decedent parent at death.
Note: only applies to intestate succession.
Topics in Wills and Trusts correct answers 1. Intestate Descent and Distribution
2. Succession Problems Common to Intestacy and Wills
3. Execution of Wills
4. Revocation of Wills
5. Components of a Will
6. Contracts Relating to Wills/Joint Wills
7. Changes in Beneficiaries and Property after Execution
8. Restrictions on the Power of Testation
9. Will Contests
10. Probate and Estate Administration
Important Terms for Wills correct answers 1. Probate: Refers to the court proceeding in which it
is judicially determined that decedent left a validly executed will or, if the will is invalid, that the
decedent died without a will and his intestate heirs are then determined.
2. Personal Representative: If a valid will names a person to administer the estate, then this
person is called an executor, or it no one is named or the decedent died without a valid will, then
the person is called an administrator.
3. Testate Succession: When property passes under a valid will, the property passes testate.
4. Intestate Succession: If property passes outside of any valid will, and thus according to the
state statutes providing for this, the property passes intestate.
5. Heirs: persons who take under intestate succession.
6. Descendants: persons who take from a decedent in a descending fashion, such as children,
grandchildren, etc.
7. Devisees, Legatees, Beneficiaries: persons who take under a valid will, under testate
succession.
When Do Intestate Succession Rules Apply? correct answers Rule: when (1) the decedent left no
will, (2) the decedent's will is denied probate, or (3) the decedent left a will, but the will does not
make a complete disposition of the estate (partial intestacy).
Other Statutory Rights of Surviving Spouse correct answers In any question involving a
surviving spouse, it is appropriate to say something like:
"In addition, [the surviving spouse] is entitled to the following statutory rights, which take
precedence over any creditors' claims. These amounts are over and above the amounts passing to
[the surviving spouse] under any Last Will and Testament, by intestacy, or under elective share."
,The acronym to remember is REFH.
Intestate Share of Surviving Spouse correct answers 1. Not Survived by Descendants: SS gets
entire estate
2. Survived by SS's Descendants: SS gets entire estate
3. Survived by Non-SS's Descendants: SS gets 1/3, other descendants get 2/3
4. Desertion or Abandonment at time of Testator's Death: SS gets nothing
5. No SS or Descendants: to decedent's parent(s)
6. No SS, Descendants, Parents: to decedent's siblings
7. Escheat: property goes to the Commonwealth
Rights of SS: REFH correct answers 1. Residence: if but only if (i) surviving spouse claims an
elective share, or (ii) decedent died intestate survived by descendants by a former marriage,
spouse can live in principal family residence without charge for rent, taxes, insurance, until
spouse's rights in principal residence have been determined and satisfied.
2. Exemption of Personal Property up to $15,000: cars, household furniture, furnishings,
appliances, personal effects. If there is not $15,000 worth of exempt items in the estate, spouse is
entitled to cash or other assets to the extent necessary to make up the $15,000.
3. Family Support up to 1 Year: the amount of the family allowance, which must be
"reasonable," cannot exceed $18,000 unless petition is made for a higher allowance.
4. Homestead Allowance of $15,000: available only if spouse gets less than $15,000 from D's
estate. Moreover, if spouse claims an elective share there is no homestead allowance.
Intestate Shares: Per Capital with Representation correct answers Rule: each living person at the
first generational level takes a share (per capita), and the share of each deceased person at that
level passes to his issue by the right of representation (per stirpes).
No Laughing Heir Statute correct answers Rule: in Virginia, there is no limit on the degree of
kinship that qualifies one to be an heir.
Half Bloods correct answers Rule: under intestate succession among collaterals, half bloods
inherit half as much as whole bloods. This is a horizontal situation involving siblings who are
related through only one common parent.
Note: if all of the takers are half-bloods, they take equal shares
, Disinheritance correct answers Rule: to disinherit someone, the testator must make a complete
disposition of his estate by will.
Note: a provision attempting to disinherit someone is ineffective to prevent that person from
taking intestate property.
Adopted Children correct answers Stranger Adoption: the child and the child's descendants
have full inheritance rights from the adoptive family (and vice versa).
-Note: once a child has been adopted by a new family, the child has no inheritance rights from
the biological parents or their kin.
Stepchildren and Foster Children: no inheritance rights from step-parents unless formally
adopted, still allowed to inherit from biological parents.
Non-Marital Children: has full inheritance rights from
the biological mother (and the mother's relatives), and vice versa. In addition, the child can
inherit from the biological father but only if paternity is proven.
Proving Paternity: MAC correct answers 1. Marriage: the father married the mother before or
after the child's birth, even though the marriage is prohibited or void.
2. Filiation Proceeding: when judgment was entered against the man for child's support,
maintenance and education.
3. Clear and Convincing Evidence that man is a BAD CAT
-Birth Certificate
-Admission of Paternity
-DNA Tests
-Cohabitation
-Allowed Child to Use his Surname
-Tax Return or Government Document
Survivorship correct answers Rule: in order to be a survivor for purposes of inheriting under a
Last Will and Testament, intestate succession, or under any non-probate transfer, the beneficiary
under any of these must survive by at least 120 hours or 5 days.
Note: this is a default rule, so it can overridden by the will of the testator in his will.
Advancements correct answers Defined: lifetime gifts to children from parents (common law
rule) of significant value when viewed from the perspective of the parents' estate.
Rule: if a lifetime gift is given to a child (or any descendant in VA) of significant value, the gift
is presumptively an advancement of the child's intestate share, to be taken into account in
distribution of the intestate estate of the decedent parent at death.
Note: only applies to intestate succession.
