Will Interpretation

Monday, February 23, 2015

When is a Gift an Advancement of Inheritance?

Property that a testator gave during his lifetime to a person shall not be treated as a satisfaction of a devise or bequest to that person, in whole or in part, unless (i) the will provides for deduction of the lifetime gift, (ii) the testator declares in a writing made contemporaneously with the gift that the gift is to be deducted from the devise or bequest or is in satisfaction thereof, or (iii) the devisee or legatee acknowledges in writing that the gift is in satisfaction of the devise or bequest.

Monday, February 23, 2015

What Happen If Beneficiary of a Devise or Bequest Pre-deceased the Decedent?

Unless a contrary intention appears in the Will, and except as provided in § 64.2-418,

If a devise or bequest other than a residuary devise or bequest fails for any reason, it shall

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Monday, February 23, 2015

Will Construction: Specific Exceptions to Adeemed Property in Virginia

Every Executor of a probate estate has to review each Will’s specific bequest and devise carefully. Does the asset specifically bequeathed still exist in the estate as described in the Will?

If not, the property may, to a certain extent, be construed by the Court to be in existence and the Executor may be required to make a distribution the Executor mistakenly believed is no longer enforceable. And Executor should never assume the property has been Adeemed or else the Executor may be liable.
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Monday, February 23, 2015

Will Construction: Property Determined at Death (A Will Speaks at Death)

A Will shall be construed, with reference to the real and personal estate comprised in the probate estate, to speak and take effect as if it had been executed immediately before the death of the testator (or decedent), unless a contrary intention shall appear by the Will.

Consequently, when the Executor is reviewing the probate assets to be distributed in accordance with the Will’s provision, unless otherwise provided in the Will, generally what assets the decedent had when the Will was executed is not relevant to determining what assets a beneficiary receives.
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Monday, February 23, 2015

Will Construction: Effect of Divorce, Annulment & Remarriage on Will

If, after making a will, the testator is divorced from the bond of matrimony or his marriage is annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse. Unless the will expressly provides otherwise, any provision conferring a general or special power of appointment on the former spouse or nominating the former spouse as executor, trustee, conservator, or guardian is also revoked.
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