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Questions Answered by James H. Wilson Jr.
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 »

1 Answer | Asked in Estate Planning for Virginia on
Q: My aunt passed away with no will and my mother, her only living sibling, has been taken care of the arrangements.

She was told she had to split the estate with 2 of my cousins from an already deceased sibling. Is this true? And if so, how much is she required to split it? 50-25-25, 33-33-33?

James H. Wilson Jr.
James H. Wilson Jr. answered on Mar 25, 2020

If a Virginia resident dies intestate, without a will, and without a trust, his or her real property not title in survivorship, and the surplus of personal property, will pass according to the course of descents or laws of intestate succession. If that resident has no surviving spouse, no... Read more »

1 Answer | Asked in Divorce, Products Liability and Intellectual Property for Virginia on
Q: I got engaged in January in Richmond Virginia we broke up a month ago do I have to give the ring back??
James H. Wilson Jr.
James H. Wilson Jr. answered on Mar 18, 2020

The answer depends on who the "we" is that broke up. If the intended groom terminated the engagement, the intended bride keeps the gift. If it was the intended bride terminated the engagement, or the engagement was terminated by mutual decision, the gift should be returned to the groom.

2 Answers | Asked in Divorce for Virginia on
Q: owned the property before marrying.Wife insisted I add her to deed. What happens when we divorce?Loan/mortgage my name?

Had property before marriage, added wife to deed but she’s not on the mortgage loan . I pay all the bills, gas , lights, water, HOA FEES, cellphone etc etc. what happens when we get divorced????

James H. Wilson Jr.
James H. Wilson Jr. answered on Mar 12, 2020

Title does not determine the classification of property in equitable distribution in Virginia, but it may create presumptions. Real property owned by a spouse in his or her sole name prior to marriage would be presumed to be separate property. A judge may find the property to be hybrid to the... Read more »

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1 Answer | Asked in Divorce for Virginia on
Q: I was awarded, in a final divorce settlement part of my husbands 401K. How long should it take to receive the funds?
James H. Wilson Jr.
James H. Wilson Jr. answered on Mar 3, 2020

An award of a part of a spouse's 401K plan in a divorce case is transferred with a separate court order known as a Qualified Domestic Relations Order or QDRO. The award should also appear in the Final Decree. The QDRO must be signed by the judge and approved by the plan administrator. As QDRO... Read more »

2 Answers | Asked in Probate for Virginia on
Q: My aunt has recently died and named an executor in her will. Are they automatically made administrators by the Court?
James H. Wilson Jr.
James H. Wilson Jr. answered on Feb 28, 2020

A named executor in a will has limited statutory powers under Virginia Code Section 64.2-511 prior to qualification. A named executor is not required to become the acting, qualified, appointed executor. The process is not automatic. In order to become appointed, the executor or administrator... Read more »

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3 Answers | Asked in Real Estate Law and Probate for Virginia on
Q: Can real estate be sold in VA if the will has not gone through probate?

My grandfather passed away in late 2019. His will says that all belongings should be divided equally between the 4 children. My uncle is named executor but he has yet to file the will into the probate court. Can he try and sell my grandfather's home to a family member for half of fair market value... Read more »

James H. Wilson Jr.
James H. Wilson Jr. answered on Feb 17, 2020

Real estate will pass under the will if the will so provides. With an incomplete will, there exists a possibility of partial intestacy - the will fails to address all the property in existence at the testator's death. If a person dies intestate, or partial intestacy exists with respect to the... Read more »

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1 Answer | Asked in Estate Planning, Probate and Real Estate Law for Virginia on
Q: My father passed away 3 months ago and was a co-signer on a home mortgage with his step-father.

Can the house just be left in the step-father's name, and not be considered an asset of my father's?

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

Most real estate financing in Virginia is secured by a deed of trust rather than a "mortgage", although that term is used in a general sense for any loan secured by real estate. Title is determined by the deed and the chain of title, not who may or may not be liable on the note secured by the deed... Read more »

1 Answer | Asked in Divorce for Virginia on
Q: Husband filed for divorce in August 2018 . I tried to file and was told he had 3 yrs proceed

He has since moved out of state and has had no contact. How can I let the courts know that he has no intention of going through with the divorce proceedings? I want to start the process myself.

James H. Wilson Jr.
James H. Wilson Jr. answered on Jan 30, 2020

Many lawyers advise their clients to file an Answer and Counterclaim for the very reasons illustrated by your situation. A defendant spouse can file a motion for leave of court to file a late answer and counterclaim due to the failure to prosecute the case by the plaintiff. You would do much... Read more »

1 Answer | Asked in Divorce and Estate Planning for Virginia on
Q: Can a probate court reverse overturn property distribution from a prior divorce decree?

My ex and I divorced 6 years ago. We had a jointly titled exotic car. In our divorce decree, my ex was supposed to pay me for my share of the car before he could retitle it into his name alone. He made a few payments then stopped. He subsequently died and now the executor of his estate is... Read more »

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

Your question does not match your description of the legal problem. Joint property with a right of survivorship will pass to the survivor upon the death of a co-owner. In Virginia, divorce severs survivorship rights between spouses. The estate would now include your deceased ex-husband's... Read more »

1 Answer | Asked in Estate Planning for Virginia on
Q: Would a Durable Power of Attorney and a Health Directive give an unmarried couple the same rights as a civil marriage?

There are no children involved in the 18-year relationship. We are more concerned with something unexpected such as an accident rather than separation.

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

No, durable powers of attorney and advance medical directives do not create the same rights and duties as marriage. The public policy of the Commonwealth support marriage as a fundamental institution of society in ways not enjoyed by mere parties to a contract. Spouses enjoy a number of rights and... Read more »

1 Answer | Asked in Divorce for Virginia on
Q: When will we be able to get a divorce?

Jan 24 will be a year since we separated but our daughter was born in October. We both agree that we are never getting back together

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

The required separation agreement for a no fault divorce in Virginia is one year from the date of separation, with at least one of the parties intending for the separation to be permanent, and maintaining that intent continuously for the period of separation. If the parties have no minor children... Read more »

2 Answers | Asked in Estate Planning for Virginia on
Q: Under Virginia Law can either spouse will their half of home to kids from a prior marriage in case they pass first?

This to ensure my kids get half the house in case I pass first.

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

Most married couples in Virginia own their real property as tenants by the entirety with the common-law right of survivorship. This tenancy is based on the old common-law fiction that a husband and wife were a single legal unit. Each spouse owns the undivided whole. Upon the death of either, the... Read more »

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1 Answer | Asked in Criminal Law for Virginia on
Q: If the state of VA does not have a defendant to press charges does that mean the state does not have a case?

arrested for "assault on family member"

Officer stated that VA code requires someone to be arrested if the police are called for a domestic issue. My husband threatened to leave with our child. I pulled his shirt to stop him and also beeped his horn so a neighbor would assist. They called... Read more »

James H. Wilson Jr.
James H. Wilson Jr. answered on Dec 4, 2019

It is not unusual in family abuse cases for the complaining witness to decline prosecution, after thinking the matter over. Nevertheless, a criminal offense is considered an offense against the state, not between two private parties, and the state could compel a witness to testify against that... Read more »

1 Answer | Asked in Family Law for Virginia on
Q: Can I take a withdrawal slip from credit union to incapacitated spouse to have signed so I can get money?

How do I go about getting money from my husbands account as an emergency? Someone said I can take a withdraw form and have him sign it and put thumbprint in front of witnesses. Is this true?

James H. Wilson Jr.
James H. Wilson Jr. answered on Dec 2, 2019

A person may act for an incapacitated person either as a guardian or conservator by virtue of a court order, a court appointed guardian ad litem, or pursuant to a durable power of attorney. The durable power of attorney must be signed by the principal before becoming incapacitated or during a... Read more »

1 Answer | Asked in Estate Planning, Landlord - Tenant and Probate for Virginia on
Q: My Fathers widow is still living in my parents home-How do we have her removed so that we can sell the home?

My Father passed in January and left his personal property and his home to his children. The widow of 8 years is not

cooperating and I would like to sell the home to settle my Fathers affairs. The widow believes everything is hers and will not allow us to have the person family items.

James H. Wilson Jr.
James H. Wilson Jr. answered on Nov 26, 2019

You do not indicate in your question whether your father died testate - with a will - or intestate - without a will, whether his surviving spouse is claiming any statutory rights to his augmented estate or family residence. I would assume he died with a will because you do not recognize any rights... Read more »

1 Answer | Asked in Divorce for Virginia on
Q: My ex's attorney is demanding that I provide him my SSN to file a no-fault divorce in VA, is this true?

we have been legally separated for 3 years. The complaint was filed in 2017 and the case is still active. My ex's attorney is demanding that I give him my SSN in order to file an affidavit to submit to the court. I don't think that I need to provide this confidential information.

James H. Wilson Jr.
James H. Wilson Jr. answered on Nov 22, 2019

The spouses's social security numbers appear on at least two forms in a divorce in Virginia, the VS-4 form for Vital Statistics and a Confidential Addendum for identification purposes. The Confidential Addendum is sealed and confidential in the case file, so members of the public cannot view it.... Read more »

1 Answer | Asked in Contracts and Divorce for Virginia on
Q: What constitutes an unenforceable or void contract?

Neither representing attorneys or judge adhered to the Federal Military Spouse Protection Act regarding community property. I would of been under the 1982 rules. I did not know about this federal act at the time.

James H. Wilson Jr.
James H. Wilson Jr. answered on Nov 9, 2019

Your question contains a mixture of somewhat complex issues and illustrates a conflict between federal and state law. The first issue is preemption. Preemption occurs when exclusive federal jurisdiction and law on specific areas of law prevent action under state jurisdiction and laws, for... Read more »

1 Answer | Asked in Family Law for Virginia on
Q: Can previous interrogatories and admissions be used in appeal case from JDR to Circuit Court in Virginia?

I was granted primary custody of a child in July. The other party appealed and they were granted a trial de novo in Circuit Court. We are both currently pro-se. I previously submitted admissions and interrogatories for the case in July. The other party responded but did not provide their own... Read more »

James H. Wilson Jr.
James H. Wilson Jr. answered on Nov 7, 2019

A witness can be impeached by prior inconsistent testimony or sworn responses in discovery. Impeachment requires a particular sequence of questioning that allows the witness to first give correct testimony, recollect instances of prior testimony, and then acknowledge prior inconsistencies. There... Read more »

2 Answers | Asked in Estate Planning and Probate for Virginia on
Q: If a parent had a child, outside of marriage, is that child due an inheritance if that parent dies in VA?

Grandparents passed with a will stating equal distribution among the surviving children. One of their children passed without a will. Sale of grandparents real estate to be divided among children of the recently deceased. Fathered a child outside of wedlock. Child was left out of listing of heirs... Read more »

James H. Wilson Jr.
James H. Wilson Jr. answered on Oct 10, 2019

This is a somewhat complicated issue which should be discussed with an experienced Virginia probate lawyer with the benefit of an illustration of the family tree. Generally, a child or descendant of a child, born out of wedlock, has the essentially the same rights as an heir as the other children... Read more »

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