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Virginia Probate Questions & Answers
1 Answer | Asked in Estate Planning and Probate for Virginia on
Q: If an executor of an estate fails to perform his duties and all property sits unclaimed for years, can heirs claim it?

My ‘well to do’ great-great aunt died in 2005 with a will naming her nephew as executor, he and his wife as beneficiaries, and my father as an heir. This nephew died intestate in 2003. His wife died in 2005, five months after my g-g aunt. 2 months prior to wife’s death she appointed a friend... Read more »

Richard Sternberg
Richard Sternberg answered on Oct 22, 2021

Your description is too imprecise to render an opinion, but it sounds like you need a probate attorney licensed in Virginia to re-open the estate of Wife. I don't understand from your description what Father's rights are. You call him an heir, but you tell me that the sole beneficiaries... Read more »

1 Answer | Asked in Estate Planning and Probate for Virginia on
Q: After being married to and living with a man for 8 years we separated but did not get divorced. We had 2 boys.

We never lived together again. 10 years after we separated he had a heart attack, suffered brain damage, and had to be put in a home for 10 year. He recently passed away. All he has left is about $330K in his IRA. While incapacitated his mother created a will leaving all money to his sons and... Read more »

James H. Wilson Jr.
James H. Wilson Jr. answered on Oct 10, 2021

Property often transfers at death through nonprobate transfers, including survivorship on title, beneficiary designations on accounts, payable on death bank accounts (POD), and transfer on death investment accounts (TOD). Nevertheless, such transfers are still subject to legal requirements of... Read more »

1 Answer | Asked in Estate Planning, Real Estate Law and Probate for Virginia on
Q: My Mother in law willed her home to all 6 of her children. Her eldest son died having only a wife no children. His wife

Just died in the middle of the sale of the home. My mother in laws will states that if any of her children that do not have children their part goes back to the other children. Can my sister in law will her part of inherited land that was willed to her husband from his mother to her sister or does... Read more »

Nina Whitehurst
Nina Whitehurst answered on Aug 27, 2021

The exact timing matters and the exact wording of the will matters too. There is not enough information here to answer your question. You should schedule a consultation with a probate attorney.

1 Answer | Asked in Estate Planning, Civil Litigation, Elder Law and Probate for Virginia on
Q: Can a trustee legally represent a beneficiary in court and be her attorney? From any false accusations from her sibling

My question: Is a trustee (also an attorney) allowed to legally represent and defend a beneficiary in court and be her attorney if there are any possible future legal suits against this beneficiary from her litigious jealous sister? For example: for medical neglect? The trustee is NOW the new... Read more »

F. Paul Maloof
F. Paul Maloof answered on Jun 25, 2021

I regret that I do not handle matters that involve Trusts and/or Trustees. Sorry.

1 Answer | Asked in Landlord - Tenant and Probate for Virginia on
Q: If my attorney representing me while in probate is representing a client renting

My tenant is in default of there lease which my attorney wrote who is my attorney obligated to

F. Paul Maloof
F. Paul Maloof answered on Jun 2, 2021

In Virginia, an attorney cannot ethically represent two clients who are in a conflict of interest. In that case, the attorney must withdraw from the representation of both clients.

1 Answer | Asked in Estate Planning and Probate for Virginia on
Q: What happens to a car loan when a cosigner dies?
Richard Sternberg
Richard Sternberg answered on May 24, 2021

As long as the loan continues to be paid timely, nothing happens. If it is not paid, the lender enforces against the living signer and tries to enforce against the deaf citizens-signer. Upon learning of the demise, they may proceed to file a claim in the probate estate.

1 Answer | Asked in Estate Planning and Probate for Virginia on
Q: Family member in Alexandria VA. Not sure if he will survive. Don't know if has a will. need advice

Do I need to hire attorney to represent our family and handle the estate? If he passes away we do not know anything about life insurance or burial insurance but we will have to pay the bill for the funeral because we do not know any thing about his finances etc.

Ross Cameron Hart
Ross Cameron Hart answered on May 21, 2021

I am sorry for your situation.

I always recommend consulting an attorney for an estate - depending on the estate we can save the family money and keep them from making mistakes in handling the estate. Consult a probate lawyer.

There's usually no hurry when someone passes...
Read more »

2 Answers | Asked in Criminal Law, Civil Litigation and Probate for Virginia on
Q: Is it unusual for a judge to do searches on the internet of the Plaintiff and defendant in cases they hear?
F. Paul Maloof
F. Paul Maloof answered on May 10, 2021

I do not handle criminal law matters. Sorry.

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1 Answer | Asked in Probate for Virginia on
Q: How soon can one take over a property that was willed to them?

father left me lifetime rights to a property in his will, but he was married & step mother just passed Jan 27 this year , I was not notified of her death , & have not been contacted or told anything , online property GIS says it willed , step brother was left in charge of over seeing things

Richard Sternberg
Richard Sternberg answered on Apr 5, 2021

It sounds like you need a lawyer to review the deed and the will. In Virginia law, title to real estate often passes immediately on death.

1 Answer | Asked in Estate Planning and Probate for Virginia on
Q: Is it illegal for a non executor of a will to prevent an executor from doing his or her job?
Richard Sternberg
Richard Sternberg answered on Feb 14, 2021

Every state in which I practice gives executors, administrators, and personal representatives powers to accomplish their objectives. If you don't know what those powers are or how to use them, you need to retain counsel. The estate can pay for that legal advice, so it isn't coming out of... Read more »

3 Answers | Asked in Estate Planning and Probate for Virginia on
Q: How does the law apply when someone dies and a executor is named, then one of the heirs dies before the estate is

settled, what happens with the deceased heirs portion of the estate?

Nina Whitehurst
Nina Whitehurst answered on Feb 10, 2021

Most likely the deceased heir’s share will become part of the deceased heir’s estate. However, the only way to know for certain is to review the first decedent’s will.

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1 Answer | Asked in Banking and Probate for Virginia on
Q: If a will says that 3 people are named executors. Is it illegal for one of them to close a bank account before probate?
Richard Sternberg
Richard Sternberg answered on Jan 14, 2021

The Will must be probated, and the court must appoint the personal representatives (executors/executrix in Virginia) before they have any power at all. If the bank account is not a probate asset. like an account in which a beneficiary is named or a joint account that was not created for the benefit... Read more »

1 Answer | Asked in Estate Planning, Real Estate Law and Probate for Virginia on
Q: What happens if an executor steals money from an estate?
Richard Sternberg
Richard Sternberg answered on Jan 10, 2021

The executor must file an inventory and an account. Anything that isn't accounted will come into question. If you suspect a greater problem, you should communicate with the estate's attorney or with the Commissioner of Accounts.

1 Answer | Asked in Probate for Virginia on
Q: Can a person go to jail for breach of fiduciary duty?
Nina Whitehurst
Nina Whitehurst answered on Jan 10, 2021

It depends on how severe the beach is. If, for example, the breach amounts to theft or conversion then, yes, it is possible. Breach of fiduciary duty is first and foremost a civil offense, and there is typically no criminal liability for civil offenses, but there is some overlap between civil... Read more »

2 Answers | Asked in Probate for Virginia on
Q: Can a non executor close the bank account of someone who is deceased?
Richard Sternberg
Richard Sternberg answered on Jan 4, 2021

If the account had a joint tenant with right of survivorship that was not a Totten Trust or a POD or a designated beneficiary, then the funds pass to the designated beneficiary outside of probate. The executor has very little to do with it, and the bank should only require the beneficiary to... Read more »

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2 Answers | Asked in Probate for Virginia on
Q: My mother passed in Oct with no will or executor. Her only asset was a mobile home that was paid for, but she rented

the lot. The home is valued at 8,000 but she had credit card debt in excess of 10,000. Do I need to go through the probate process? I have several other questions regarding this matter.

Richard Sternberg
Richard Sternberg answered on Dec 3, 2020

I'd be happy to sell you a discounted one-hour consult, and we could do it by Zoom in these quarantine conditions, but why would you want to open a probate estate? If her assets were $8,000 -- assuming you could get $8,000 after it was moved off the rental property -- and her debts were... Read more »

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1 Answer | Asked in Probate for Virginia on
Q: In VA, do you include a simple joint checking account with deceased in estate inventory? Father and daughter.
Ross Cameron Hart
Ross Cameron Hart answered on Nov 27, 2020

Have you consulted an experienced lawyer? There are a lot of considerations that many people don't know, such as the answer to your question. At least once a month I save my clients a lot of money - a multiple of my consultation fee - because of those details.

That said, if you look...
Read more »

1 Answer | Asked in Probate for Virginia on
Q: My deceased fathers estate was handled by an appointed firm who also handled claim against his llc that won 43000

The appointed commissioner of revenue also had been asked prior to the appointment of an executor to represent myself and while in a consult with senior partner in firm he had me bring important paperwork in that he most surely copied because he took them out of conference room for around thirty... Read more »

Richard Sternberg
Richard Sternberg answered on Nov 24, 2020

I have no idea what you are asking. First, I think you are referring to the Commissioner of Accounts for your jurisdiction, but the executor or your father's estate would have been appointed by the Register of Wills, not the Commissioner of Accounts. If you did not petition to become the... Read more »

1 Answer | Asked in Civil Rights and Probate for Virginia on
Q: Now that I have a answer about the lawsuit against my brother inlaw who has passed.

Now they want my husband to settle up with them because he was sole heir. We dont know what to do!

My brother inlaw denied to his dieing breath it was untrue what my nephew accused him of but the lawyer said we owe him money for the pending lawsuit he had on going when my brother inlaw... Read more »

Richard Sternberg
Richard Sternberg answered on Oct 14, 2020

The type of lawyer you need is a probate lawyer who also does litigation. If you are representing the estate and the estate is in Virginia, you may use the estate's assets to pay the litigator as needed. You can find an attentive and talented lawyer by searching the Find a Lawyer function at... Read more »

1 Answer | Asked in Probate for Virginia on
Q: There was a pending lawsuit against my brother inlaw who passed. My brother inlaw was accused of molesting his nephew

25 years ago. Brother inlaw denies all allegations and nephew has no witnesses or proof. He did not say anything about this issues until he found out my brother inlaw was dieing and thought he had a lot of money.

My husband took care of his brother with ALS for 2 yrs and left everything to... Read more »

Richard Sternberg
Richard Sternberg answered on Oct 7, 2020

I’m not sure what you are asking, but it sounds like you need a lawyer to review and file a demurrer. If the estate has no money and no claim can be made for fraudulent transfer, I think the case is likely over. Negotiating pro se is a waste of time.

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