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Virginia Estate Planning Questions & Answers
2 Answers | Asked in Estate Planning for Virginia on
Q: We have existing will and trust. Can we modify current successor trustee with an addendum we create and notarize?
James H. Wilson Jr.
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James H. Wilson Jr.
answered on Nov 21, 2022

A will may be modfied with a codicil. Most attorney advise against the use of a codicil for various reasons. As it requires the same formalities as a will, the testator is often better off by simply writing a new will.

A trust may be modified in accordance with its terms, or, in certain...
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2 Answers | Asked in Estate Planning and Probate for Virginia on
Q: My mother passed, had no will, my sister was handling the estate. She works for a criminal attorney that is now handling

My mothers estate? But mind you he couldn't represent me in criminal court because of conflict of interest cause my sister works for him. Should be the same with the estate?? I asked my sister for a copy of estate paper work and I'm getting no response? I need to know what my rights are... Read more »

Richard Sternberg
Richard Sternberg
answered on Nov 11, 2022

If you wish to be informed, you need to file the correct form, particularly if you previously waived notice. Paying a lawyer to coordinate this may be helpful.

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2 Answers | Asked in Estate Planning and Probate for Virginia on
Q: My mother passed, had no will, my sister was handling the estate. She works for a criminal attorney that is now handling

My mothers estate? But mind you he couldn't represent me in criminal court because of conflict of interest cause my sister works for him. Should be the same with the estate?? I asked my sister for a copy of estate paper work and I'm getting no response? I need to know what my rights are... Read more »

Ross Cameron Hart
Ross Cameron Hart
answered on Nov 12, 2022

In my opinion lawyers who focus on one area of the law shouldn't dabble in areas of law they aren't familiar with. It can breed malpractice claims.

There are a lot of missing pieces in your short question. I suggest you consult an experienced probate law firm for a consultation...
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1 Answer | Asked in Elder Law, Probate and Estate Planning for Virginia on
Q: Suspect Trust having funds dispersed illegally. CA Orange County trust but I'm in VA and executor in Seattle. What to do

Stepmom/Bio Dad created Joint Trust in 2004. Stepmom began making changes to Trust in 2018/19 while Dad having dementia. Wouldn't say what she did . She died in 2020. Financial POA went to elder twin daughter of stepmom. She wouldn't give any info. Then she died in 2022. Now younger... Read more »

Richard Sternberg
Richard Sternberg
answered on Oct 1, 2022

There is no competent way such specifics can be resolved in an Internet forum outside of privilege and without reviewing the trust documents. Start with a lawyer in your state, and, if it turns to litigation, you might need counsel that has jurisdiction over the trust or the trustee in California... Read more »

1 Answer | Asked in Estate Planning and Probate for Virginia on
Q: How do I obtain a death certificate…

My fiancée of whom we shared a child together passed away unexpectedly from a stroke. And of course it’s a case of I ntestate succession. Vital statistics customer service told me that since our daughter is a minor and I am not next of kin I can’t obtain a death certificate. Is this true??... Read more »

Richard Sternberg
Richard Sternberg
answered on Sep 14, 2022

Interesting issue. His daughter plainly has standing, and you are surely eligible to be her next friend. But, let's start simpler by approaching this through the need you have. If he has an estate, are his parents filing it? You don't need the death certificate if they get it unless... Read more »

1 Answer | Asked in Estate Planning, Real Estate Law and Foreclosure for Virginia on
Q: What legal actions can my aunt, brother, sister and myself take since we were the heirs to my grandfathers estate in Tx.

We were all served paperwork stating that the property would be auctioned off to pay what's owed and we would receive the difference. A couple weeks after the auction date I contacted the law office in charge of the sale to see how much the property sold for. I was told it didnt go to auction... Read more »

Richard Sternberg
Richard Sternberg
answered on Sep 8, 2022

Wow. You probably did a very stupid thing by not stepping in. In a foreclosure, the secured and foreclosing party will bid as much but not more than what is called the upset price. That is the amount they are owed after fees and expenses. In a very hot market, especially with all the many varieties... Read more »

3 Answers | Asked in Estate Planning, Family Law and Real Estate Law for Virginia on
Q: When splitting up the money left in an estate, how do I take out judgements against beneficiaries paid by the estate?

I have 2 siblings, both of which had separate judgements paid off by the estate when we sold the family farm. The siblings along with myself were listed as co-owners of the estate when my dad passed, so the judgements had to be paid before any funds from the sale were released. I shouldn't... Read more »

Nina Whitehurst
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Nina Whitehurst
answered on Sep 8, 2022

Take the net proceeds of the sale and add back the amounts of the judgements that were paid, then divide that sum by the number of equal shares. Each beneficiary’s share is that quantity less the amount of judgements paid on his or her behalf.

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1 Answer | Asked in Estate Planning, Family Law, Real Estate Law and Probate for Virginia on
Q: Hello iam the beneficary of my mother's estate and it is in the will to sell her house and to split the preceding with

My 6 siblings and one will not get out for me to sell the house in virginia. What can I do without having to go through probate

Anthony M. Avery
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Anthony M. Avery
answered on Sep 2, 2022

Without Probate, the Will means nothing. Any of the Heirs as Tenants In Common can file a Partition action.

2 Answers | Asked in Estate Planning and Probate for Virginia on
Q: My brother died he and a friend bought a house years ago and he willed everything to me how do I get my half of equity

I live in PA and the house is in VA, what would I have to do to get my half of the equity in the property

Richard Sternberg
Richard Sternberg
answered on Aug 27, 2022

The answer depends on a number of issues, but, at least theoretically, you already own the property subject to the estate’s need to sell it to pay creditors. What you need to do is determine the liquidity of the estate and the complete title to the property, and, if you share title, determine the... Read more »

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1 Answer | Asked in Contracts, Estate Planning, Family Law and Real Estate Law for Virginia on
Q: Is a verbal commitment legal in the courts.

My parents told me they wanted to leave me their house when they both past away. I sold my house and moved in with them. One year later my father pasted away and not even 2 months later my mom said that she wasn't going to leave me the house because she had 3 other kids to think about. Is this... Read more »

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Aug 14, 2022

Almost all contracts are verbal, either oral (spoken) or written. A last will and testament requires certain formalities, as does a revocable or irrevocable trust. Both must be in writing and signed. In spite of the absence of a written will, trust, or contract, in some instances a court can... Read more »

1 Answer | Asked in Estate Planning and Probate for Virginia on
Q: When my Aunt dies, what will need to be done to give out monies/belonging left in her will?

I currently have guardianship and conservatorship over my Aunt. She is elderly and in a nursing home with hospice care. Hospice has asked me to start preparing for her funeral arrangements. She has a living will that will leave everything to myself and my brother. Is there a legal way I am supposed... Read more »

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Aug 4, 2022

A living will is an advance medical directive. It contains instructions for medical care if the principal becomes incapacitated.

I will assume you mean a will and I will assume that your aunt resides in Virginia, although you appear to be posting from Maryland.

Once your aunt...
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1 Answer | Asked in Estate Planning and Probate for Virginia on
Q: Does funeral reimbursement from estate take precedence over other bills? Father's bank act is just enough to cover them

My father passed recently and we have the estate process going with my sister as executor. His bank account has enough to cover what we paid in funeral costs but there is 1 outstanding credit card debt so I was hoping funeral reimbursement superceded that.

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Jul 30, 2022

Section 64.2-528 of the Code of Virginia sets out the order in which debts are to be paid when assets in the personal representative's possession are not sufficient to pay all debts and demands. This is known as an insolvent estate. Funeral expenses are third priority, after costs and... Read more »

1 Answer | Asked in Estate Planning and Probate for Virginia on
Q: What happens when a life insurance policy says to the estatee? Does it spilt between all children

My mother died and had three life insurance policy’s. I was the sole beneficiary for all but one. The last one states it goes to the estatee, nobody was named. Who will that policy go to? Will it split between all children or will we have to go to court for one person to get it?

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Jun 3, 2022

A life insurance policy payable to the estate should be deposited in the estate account. The personal representative of the estate should have opened an estate bank account and obtained a taxpayer identification number for the estate. The personal representative must qualify through an... Read more »

1 Answer | Asked in Family Law and Estate Planning for Virginia on
Q: How to find out if my deceased father left anything for his children
Richard Sternberg
Richard Sternberg
answered on May 26, 2022

Have you asked your siblings or (step-)mother or other relatives if there is a Will or someone is filing probate? Did he have assets, and should you file as Administrator? A consult with a lawyer discussing your situation might be helpful, and, if that lawyer opens the estate, you’ll be repaid... Read more »

1 Answer | Asked in Estate Planning for Virginia on
Q: How do I go about changing bank accounts set up for funds collected from rental of my mother’s home to a trust account?

My mother (and father) are deceased, and my brothers and I rent her home in Virginia, using a property manager there who rents and manages the care of the house on my behalf (I live in Washington state). From the funds I collect monthly from the rental, it all goes into an account(s) from which I... Read more »

Richard Sternberg
Richard Sternberg
answered on May 17, 2022

Set up a trust. It won’t be hard, but it’s not a DIY project. Get Virginia counsel.

1 Answer | Asked in Estate Planning for Virginia on
Q: I would like my son to inherit my mother’s home instead of myself. Can I do this if she is unable to amend trust?

I am trustee and beneficiary of my mother’s revocable trust, also POA. My husband and daughter are listed as beneficiaries if I were to die, but my sons are not.

Mother is in a memory care facility with dementia.

As trustee, if the three of us sign a disclaimer, am I allowed to... Read more »

Richard Sternberg
Richard Sternberg
answered on May 16, 2022

There are often opportunities for tax savings as well as better planning in this sort of setting, but much depends on what the trust says. I see you are across the border in York, PA. I can refer you to someone, but you need a Pennsylvania admitted trusts and estates lawyer.

1 Answer | Asked in Estate Planning for Virginia on
Q: When does the statue of limitations began on breach of fiduciary duty in va?

Estate has been opened since 2019, majority of breaches happened that year but va has two year statue of limitations. Not sure if I have a chance in court, or do I just have to take a loss?

Ross Cameron Hart
Ross Cameron Hart
answered on May 10, 2022

If a fiduciary mis-handles an estate, then having them pay improperly handled money and property is technically called a 'surcharge' and is suing on the bond. That statute is ten years - see Virginia Code 8.01-245, here: https://law.lis.virginia.gov/vacode/title8.01/chapter4/section8.01-245/.

2 Answers | Asked in Estate Planning and Probate for Virginia on
Q: My stepsister sold house that my dad and her mom owned together without permission from her stepsiblings. No will. Ok?

Dad died in 12/2020 and her mom died early 2022. To my knowledge neither had a will. They live in Virginia.

Richard Sternberg
Richard Sternberg
answered on May 7, 2022

You might want a consultation with a Virginia lawyer to review the matter, but if the house was owned by dad and step-mom by entireties, and dad died first, the house belonged solely to step-mom when she died. I would think in a second marriage, the parties would title their home better, use a... Read more »

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2 Answers | Asked in Divorce and Estate Planning for Virginia on
Q: How do I start divorce proceedings while married, living together, with minor children when the spouse refuses to leave

I want to divorce my husband. He refuses to establish a separation date, so I can’t do a no fault divorce. We live in my fathers house, it’s paid off, and will come to me upon his death through inheritance. There is no established rental agreement. I believe my husbands plan is to wait until he... Read more »

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on May 5, 2022

A Virginia resident can file for a divorce from bed and board immediately, based on either abandonment and desertion or cruelty and reasonable apprehension of bodily harm. Virginia recognizes contructive desertion, which is essentially a desertion of the marital relationship while the parties... Read more »

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1 Answer | Asked in Divorce, Real Estate Law and Estate Planning for Virginia on
Q: My spouse&I live in a house owned by my dad. I will inherit when he passes. Would it become a marital asset in divorce?
James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on May 5, 2022

Property that is acquired by gift or inheritance during a marriage in Virginia starts as separate property in equitable distribution. This is an exception to the general rule that property acquired during the marriage and before the last date of separation is presumed to be marital property, no... Read more »

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