What is probate?
Probate is the process of proving a will as valid or invalid. In a broader sense, probate is the administration of the estate of a decedent.
What is a will?
A will is a a formal instrument used by a person to dispose of his or her personal and real property upon his or her death.
What is required for a valid holographic will in Virginia?
A valid Virginia holographic will must be entirely handwritten and signed by the testator.
What is required for a valid formal will in Virginia?
A valid Virginia formal will must be signed by a testator with capacity in the presence of two disinterested, competent witnesses who also subscribe the instrument in the testator’s presence contemporaneously at the same ceremony.
What is testamentary capacity in Virginia?
Testamentary capacity is the ability of a person to remember his or her property, to know whom he or she wants the property to go to upon his or her death, and to understand the business of disposing of property by the execution of a will.
What is a trust?
A trust is a legal entity or creation involving three parties, (1) a grantor or settlor who gives the right to manage or control property to a (2) trustee for the benefit of a (3) beneficiary.
What is a personal representative?
A personal representative of an estate is an administrator or executor who is charged with administering the estate of a decedent.
What is a trustee?
A trustee is a fiduciary who holds and manages property for the benefit of another according to the terms of a trust.
What is a fiduciary?
A fiduciary is person with a high duty of care to another to manage money or property in a relationship of trust and confidence.
What is a Commissioner of Accounts in Virginia?
A Commissioner of Accounts is an attorney appointed by a particular county or city Circuit Court in Virginia who acts in a quasi-judicial role to review and approve fiduciary accounts and reports in that county or city.
What is undue influence?
Undue influence occurs when a person controls the mind and directs the actions of the testator to deprive him or her of volition such that the execution of a will is not the chosen, free, voluntary act of the testator.
What is ex parte probate in Virginia?
Ex parte probate is the most common type of probate in Virginia. Ex parte probate occurs when the proponent of the will probates the will in front of a clerk of the Circuit Court, without having to file a complaint or petition establishing the will.
What is the burden of proof?
The burden of proof is a legal term that identifies the responsible party and quality of evidence or proof that must be produced to convince the judge of something. The burden of proof can refer both to the burden of persuasion – the party who has the ultimate burden of convincing the judge of something, and the burden of production – the party who has the burden of proving or rebutting something at a particular stage of the trial. The burden of proof often rests on inferences and presumptions.
What are the different standards for burdens of proof?
The ordinary standard of the burden of proof in a civil case is preponderance of the evidence. The highest standard in a criminal case is beyond a reasonable doubt. An intermediate standard, usually applied to quasi-criminal acts, is clear and convincing evidence.
What is the burden of production?
The burden of production is the burden on a party at a particular stage in a trial of producing evidence to establish a prima facie case or an affirmative defense, or on a particular issue to rebut or overcome an inference or a presumption, or to rebut or overcome the establishment of a prima facie case. The burden of production is different from the burden of persuasion, which is the ultimate burden of convincing a judge or jury of the desired outcome in a case. The burden of production often shifts from one party to another during a trial.
What is a disclaimer in Virginia?
Under Virginia’s adoption of the Uniform Disclaimer of Property Interests Act, Chapter 26 of Title 64.2 of the Code of Virginia, a person can disclaim an interest in property of a decedent’s estate, or a power or right related to such estate, including a power of appointment. The person who wishes to disclaim should sign a written Disclaimer and deliver or file as required by law. A custodial parent can disclaim the interest of a minor child. If the disclaimer pertains to an interest in personal property or a power, it should be delivered to the personal representative of the estate; if the disclaimer pertains to an interest in real property, it should be recorded in land records and/or the will book and delivered to the personal representative of the estate. Proof of delivery or recordation should be maintained by the person disclaiming his or her interest.
What is a prima facie case?
A prima facie case is when a party has satisfied its burden to establish all the elements of his or her case. The plaintiff in a civil action must make a prima facie case, or the entire case will be dismissed by a motion to strike at the conclusion of the plaintiff’s evidence.
What is a motion to strike?
A motion to strike is a procedure where a party challenges the sufficiency of the other party’s evidence during the trial. A motion to strike is typically made at the conclusion of the plaintiff’s case, and renewed at the conclusion of the defendant’s case.
What are nonprobate transfers?
Some transfers occur upon the death of a person but not through the probate process. These nonprobate transfers occur outside of probate, and include survivorship tenancies, insurance contract with a named individual as the beneficiary, retirement plan beneficiaries, payable on death bank accounts, transfer on death investment accounts, transfer on death deeds, and living trusts.
What is a transfer on death deed?
A transfer on death deed is a deed that includes a designated beneficiary to whom the property will transfer upon the death of the property owner. These deeds are authorized in Virginia by virtue of Virginia Code Section 64.2-624. The designation is revocable, meaning the grantor or property owner can revoke or change the designation prior to his or her death. In certain circumstances, a transfer on death deed can be a useful estate planning device in place of a transfer by probate, will, or trust. Because the transfer only takes place upon the owner’s death, if the proper language is included by careful drafting, a transfer on death deed may even create a life estate in another (like a will) without violating the “stranger rule”.
What is a life estate?
A life estate is an estate in property that lasts for the life of a person, either the person holding the estate or another person, known as a life estate pur autre vie. The life estate terminates upon the death of the measuring life, and the property either reverts to the grantor or goes to a remainderman. A life estate in real property can be created by deed or will. As a life estate is a reservation of rights and not a grant of rights, only an owner of the real property can receive a life estate by deed. This limitation on the creation of a life estate is known as the “stranger rule.”
What is the Rule Against Perpetuities?
At common law, the Rule Against Perpetuities provides that no interest is good, unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest. The purpose of the Anglo-American common-law Rule Against Perpetuities was to prevent people from controlling property and preventing its transfer and best use from unlimited periods of time. The meaning and applications of the Rule Against Perpetuities have challenged law school students and practicing lawyers for generations. Fortunately for Virginians, Virginia has adopted the Uniform Statutory Rule Against Perpetuties in Article 2 of Chapter 1 of Title 55.1, specifically Virginia Code Section 55.1-124. Virginia’s Uniform Statutory Rule Against Perpetuities preserves the common-law rule, but also contains curative provisions which prevent some of the pitfalls and defaults associated with the Rule Against Perpetuities. In particular, there is a “wait and see” 90 year period to determine if an interest will actually vest or terminate. In addition, an interested person may petition a Virginia Circuit Court for reformation to comply with the transferor’s intent under Virginia Code Section 55.1-126.
What is the course of descents in Virginia?
The course of descents in Virginia describes how property passes when a decedent dies intestate, without a will. Under Virginia Code Section 64.2-200, real property that is not effectively disposed of by a will, descends and passes to the surviving spouse, unless the decedent is survived by children and their descendants who are not children and descendants of the surviving spouse, in which case it passes 2/3rds to the surviving children and their descendants and 1/3rd to the surviving spouse. If there is no surviving spouse, the real property descends and passes to the surviving children and their descendants. If there is no surviving spouse and no surviving children and their descendants, the real property descends and passes to the parents, or to the surviving parent. If there are no of the foregoing, then the real property descends and passes to the brothers and sisters and their descendants. If there is none of the foregoing, then the real property descends and passes one-half to the paternal kindred and one-half to the maternal kindred in the following order: the grandparents or surviving grandparent; to the decedent’s uncles and aunts and their descendants; to the decedent’s great grandparents; to the brothers and sisters of the decedent’s grandparents and their descendants; and continuing in the same lineal pattern and descendants. If there are either no surviving paternal or no surviving maternal kindred, the real property passes and descends to the paternal or maternal surviving kindred who survive the decedent. If there is none of the foregoing, the real property passes and descends to the decedent’s most recent spouse, as if the decedent and spouse were married at the time of the decedent’s death. If there is none of the foregoing, the real property escheats to the Commonwealth of Virginia.
Personal property will generally pass the same way and order, subject to costs of administration of the estate and other statutes.
What is decanting a trust?
Decanting a trust is the act of distributing property from one trust to one or more second trusts to modify the trust or avoid limitations of the first trust, as authorized by the terms of the first trust and allowed under Virginia’s adoption of the Uniform Trust Decanting Act, Article 8.1 of Chapter 7 of Title 64.2 of the Code of Virginia.
Do joint bank accounts pass under the will, or are they even included in the estate?
Under Virginia Code Section 64.2-620, certain transfers upon death accounts are nontestamentary, meaning they are not part of the probate estate and pass outside the will. This includes payable on death (POD) bank accounts or a joint bank account with a right of survivorship. Under Virginia Code Section 6.2-608 money in a joint account belongs to the survivor unless there is clear and convincing evidence of a contrary intent. An express provision of survivorship or a payable on death provision cannot be altered by a will. There are different rules for trust accounts. Under Virginia Code Section 6.2-611, a multiple party, suvivorship or POD account may nevertheless be liable for debts, taxes and expenses of estate administration in certain instances. The standard form CC-1670 for a fiduciary inventory has a section for multiple party financial interests, which are not taxed as party of the probate estate, because of these complications.