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Questions Answered by James H. Wilson Jr.
1 Answer | Asked in Divorce for Virginia on
Q: simple question. if you get a divorce and one partner files for banruptcy can they touch the house you still both own?

bankruptcy would include credit cards and medical bills only

James H. Wilson Jr.
James H. Wilson Jr. answered on Jun 4, 2020

It depends on the type of bankruptcy and the title to the real property. For the most part, a bankruptcy trustee steps into the shoes of the debtor, a creditor of the debtor, or a good faith buyer of property, and can exercise those rights. The strong-arm powers of a trustee allows a trustee to... Read more »

1 Answer | Asked in Uncategorized for Virginia on
Q: I stored my lawnmower in a family friends shed. He won’t let me get my equipment out . By law what can I do to get it

My equipment is stored in a family friends shed his grandfather will not let him get it out it is locked, his grandfather just went into a retirement home. Legally how can I get my personal property from this friends grandfathers shed

James H. Wilson Jr.
James H. Wilson Jr. answered on May 27, 2020

Specific personal property or its fair market value can be recovered in Virginia by a Warrant in Detinue filed in the General District Court or Circuit Court, depending on the value of the property.

2 Answers | Asked in Child Custody and Family Law for Virginia on
Q: What can i do? Can i go get my daughters will it bring in legal trouble?

I have full legal custody of my two daughters. I moved on to Texas and signed a six-month long power of attorney over to my sister who lives in Virginia Beach so my girls can finish school. My sister is now telling me I am not allowed to get my daughters that she is going to keep them. Shes... Read more »

James H. Wilson Jr.
James H. Wilson Jr. answered on May 26, 2020

Certain powers are non-delegable - they cannot be given to someone else because of the personal nature of the power. You cannot effectively give parenting power by a power of attorney to someone. I am surprised anyone accepted your sister's power of attorney for you. Even parents, with... Read more »

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2 Answers | Asked in Probate for Virginia on
Q: With VA slayer statute, who pays slayers debts ?

This was a murder suicide. I understand slayer deemed to have died first in these cases and victims family becomes heirs to everything. What happens to skaters debt, and who pays slayers funeral expenses?

James H. Wilson Jr.
James H. Wilson Jr. answered on May 24, 2020

The Virginia slayer statute does not address the slayer's debts or funeral expenses.

When a person dies, the debts become debts of the estate. Funeral expenses are normally paid by the next of kin.

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2 Answers | Asked in Estate Planning and Probate for Virginia on
Q: Who pays utilities bills?I'm delayed for qualification of Executor due to Covid.Courts not open. I'm beneficiary of home

I am the executor. But I have to wait to be qualified. Courts have been closed since March. Everything is delayed due to Supreme Court ruling in Virginia. My parent passed in early May. Bills need to be payed. I am willing to pay from my own money to keep power, water etc going as I already lived... Read more »

James H. Wilson Jr.
James H. Wilson Jr. answered on May 22, 2020

The courts are not closed. I have a client who qualified locally by videoconference. You just need to get in touch with the probate clerk and schedule an appointment.

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2 Answers | Asked in Family Law and Child Support for Virginia on
Q: I have a question about jurisdiction/where to seek child support, in Virginia.

My divorce was finalized in the Circuit Court, and I later was awarded sole custody in a suit in JDR, but support was not addressed. Should I also seek child support in JDR? Is support automatically remanded to JDR after a divorce is final?

James H. Wilson Jr.
James H. Wilson Jr. answered on May 19, 2020

Most of the final decrees I have seen now remand all matters concerning child custody, visitation and support to the appropriate Juvenile and Domestic Relations District Court. A parent should check the final decrees and orders in their cases to determine the appropriate court in which to file any... Read more »

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1 Answer | Asked in Estate Planning for Virginia on
Q: My mom willed my brother her home. He lives there. It houses antique items she wanted me to have and did vocalize to him

There are also items from my childhood and property I am interested to divide up such as china, old coins, etc. My brother is hostile , we do not speak to one another. Though his is girlfriend, I am told he is stating "off limits "to his home and contents. What recourse do I have? If he... Read more »

James H. Wilson Jr.
James H. Wilson Jr. answered on May 18, 2020

A will typically might contain specific bequests of personal property, or reference to a list that may or may not be binding on the executor, specific devises of real property, and a residuary clause, which transfers all the rest of the estate to particular beneficiaries. Your question does not... Read more »

1 Answer | Asked in Estate Planning for Virginia on
Q: Brother is exec of my mom’s will. He Submitted inventory for probate court in VA. He is On her joint savings account

The account was Her money, his name on it mainly to help her when she was ill. Account =$40,000. Will this money be included in the estate to be distributed to her children? Does he have ability to claim this as his own? Thank you.

James H. Wilson Jr.
James H. Wilson Jr. answered on May 16, 2020

There is no clear answer to your question without knowing additional facts.

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...
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2 Answers | Asked in Divorce and Family Law for Virginia on
Q: Planning divorce - working on separation agreement, how simple can it be? Can we just agree to make no claims?

If we can't just say something along the lines of: "everything is divided the way we want, we are and will remain happy with this agreement." would a judge just throw that out when it came time to file the divorce? For context, currently she is a student with no income and upon... Read more »

James H. Wilson Jr.
James H. Wilson Jr. answered on May 15, 2020

A lawyer cannot represent both parties in preparing a separation agreement. Either spouse can agree to separate, live separate lives as if unmarried, and waive or give up their rights against the other in a written separation agreement. The court will look out for the rights of minor children,... Read more »

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1 Answer | Asked in Divorce for Virginia on
Q: I have a court order to receive payment by a private person exceeding $15,000 and that person refuses to pay

Awarded retirement back pay

James H. Wilson Jr.
James H. Wilson Jr. answered on May 14, 2020

In a divorce in Virginia, an award for distribution of part of an ERISA retirement plan should be evidenced by a separate Qualified Domestic Relations Order, or, if not an ERISA plan, by a Domestic Relations Order. The QDRO must be approved by the plan administrator, who then separates a portion... Read more »

2 Answers | Asked in Divorce and Family Law for Virginia on
Q: If we decide to sell the house as part of the separation agreement, do we need to wait for Divorce or can start now?

If we think the right thing to do is sell the house and divide the sale money, can we put up the house on sale after signing the separation agreement? However, if we decide to do one spouse buyout, does the price of buyout will be determined on the day of divorce?

James H. Wilson Jr.
James H. Wilson Jr. answered on May 14, 2020

With the cooperation of his or her spouse, a married person can sell his or her house whenever he or she chooses to do so. If the sale is part of the dissolution of the marriage, it would usually be to the advantage of that spouse to have a comprehensive written separation agreement addressing all... Read more »

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2 Answers | Asked in Child Support, Divorce and Family Law for Virginia on
Q: Is the non custodial parent responsible for continuing child support after high school?

Divorce agreement aligned with VA child support law, in which child support ends at 19 or completion of high school which ever comes first. Child graduates this May and the custodial parent is expecting continued child support through college. Can I end child support, and am I responsible to pay... Read more »

James H. Wilson Jr.
James H. Wilson Jr. answered on May 13, 2020

A parent has a legal obligation to support his or her minor children until age 18, or until 19 if the child is still living in the home of the custodial parent and has not yet graduated high school. A parent has no legal obligation to support an adult child above age 18 or 19 unless he or she... Read more »

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2 Answers | Asked in Estate Planning and Probate for Virginia on
Q: My wife just passed we were living apart for 5 years no formal separation agreement. She opened credit cards on her own

And was with freedom agency. Am I responsible for paying it ,no will, she did buy my son a truck in her name and the house is in both mine and her name

James H. Wilson Jr.
James H. Wilson Jr. answered on May 9, 2020

A spouse is not liable to third parties for his or her spouse's debts by virtue of the marriage with two exceptions, emergency medical care and necessaries. Neither should apply when the debts were incurred after the spouses had separated.

A spouse will remain liable on any joint...
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2 Answers | Asked in Estate Planning and Real Estate Law for Virginia on
Q: What is allotment of dower mean?

There's 233,000 Acrea of land owned by family name.The farm has been owned and manned by my family for over 100 years .(with whom I've never met and by blood I am related)Is there any rights I have to this farm?

James H. Wilson Jr.
James H. Wilson Jr. answered on May 5, 2020

Dower and curtesy were abolished in Virginia by statute effective January 1, 1991. Rights vested before that date may still be enforceable. Dower was the right of a widow to an interest in her deceased husband's land, usually a life estate or a third of the value of the property if she... Read more »

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2 Answers | Asked in Divorce for Virginia on
Q: divorce that was filed before covid19 scheduled for april . It was an adultry . can it be changed to uncontested?
James H. Wilson Jr.
James H. Wilson Jr. answered on Apr 28, 2020

Either party in a Virginia divorce may file a motion to amend the grounds of divorce from a fault-based divorce or from a divorce from bed and board to a no fault divorce from the bond of matrimony when the grounds for such a divorce exist, without first obtaining leave of court to file an amended... Read more »

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1 Answer | Asked in Divorce and Family Law for Virginia on
Q: My spouse is the nominee for her parents international bank. Can I use that towards equitable distribution in VA?

I would like to know what course of action I have to make sure that she doesn’t get like 50% of our joint marital property while also having full inheritance of her parents bank cash. Can that nomination be used to help reduce our martial property distribution?

James H. Wilson Jr.
James H. Wilson Jr. answered on Apr 20, 2020

There are several issues to be addressed in your question. First of all, there is no presumptive 50-50% split of marital property in equitable distribution in Virginia. In fact, in published opinions, the Court of Appeals has repeatedly corrected a number of lawyers and trial judges who believe... Read more »

1 Answer | Asked in Estate Planning for Virginia on
Q: What roughly is the cost of setting up a simple Estate for a brother who recently died with no will?
James H. Wilson Jr.
James H. Wilson Jr. answered on Apr 18, 2020

A person may die testate, with a will, or intestate, without a will. Whether to probate an estate is an important threshold issue. In some instances, it is advantageous to probate an estate or will. In some other instances, it is not necessary, or the costs, inconvenience and liability outweigh... Read more »

1 Answer | Asked in Probate for Virginia on
Q: In reference to Section 64.2-400 of the Code of Virginia, is it necessary to specifically state the document or list?

In my father's will he has written, verbatum; "Pursuant to Section 64.2-400 of the Code of Virginia, as amended, I may leave a signed writing indicating certain specific bequests or certain items of my tangible personal property that I direct to be distributed to the persons specified... Read more »

James H. Wilson Jr.
James H. Wilson Jr. answered on Apr 14, 2020

Virginia Code Section 64.2-400 refers to a separate list of bequests that will be treated as if they were set forth in the will. The separate writing need not qualify as a will itself. This way, the testator may draw up and change a list that should be honored by the executor or personal... Read more »

1 Answer | Asked in Probate for Virginia on
Q: My mother died in December of 2018. She did not have a will. She instructed all 6 kids that my middle brother was to be

Over her affairs. My son and I along with my mother’s youngest son were living in the home at the time she passed. The youngest son is not working and I have been paying all the bills and taking care of all the maintenance of the home. He has had opportunities to work and not gone. Can I legally... Read more »

James H. Wilson Jr.
James H. Wilson Jr. answered on Apr 10, 2020

If a Virginia resident dies intestate, without a will, his or her real property "drops like a rock" into the names of the heirs as owners. A real estate affidavit may be filed to give public notice of those owners in coparcenary, now tenants in common. Co-owners of property have equal... Read more »

1 Answer | Asked in Estate Planning for Virginia on
Q: Why would one make their family bank the power of attn. of their estate and family business

When my father died my mother gave the POA of her estate and family business instead of my brother who works at the business or me, her daughter. I do not work at the family business

James H. Wilson Jr.
James H. Wilson Jr. answered on Mar 31, 2020

Many banks have trust departments. Some folks pick banks as their trustee, guardian or attorney-in-fact because the trust departments have skilled, knowledgeable, full-time, professionals who understand their fiduciary duties and all the reporting requirements. Money, and money management, can... Read more »

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