Asked in Probate for Virginia

Q: My father was California Resident and died in 2010. He had a Will which poured over into a trust thus avoiding probate.

The trust assets have been distributed except for a small lot of land in Virginia that is titled in his name only and was never moved to the trust. I now have a buyer for this property and I have had 5 different lawyers tell me 5 different things regarding "retitling" and selling this land. Everything from Ancillary probate to filing a real estate affidavit (in lieu of a Last Will & Testament) with the Commonwealth of Virginia to pass real property without engaging in the formal probate process. Any ideas?

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1 Lawyer Answer
Ben F Meek III
Ben F Meek III
Answered
  • Probate Lawyer
  • Oklahoma City, OK

A: Typically, probate is required to pass title to real estate of a person who died as the sole owner. If the "pour-over" will was probated, in California, a probate in Virginia would be considered ancillary. Either way, the will probated in Virginia would transfer title to the property into the Trust from which it can then be sold. Alternatively, the property could be sold from within the probate proceeding and the proceeds of the sale then distributed into the Trust. Whether there is any form of affidavit in Virginia that would be effective to transfer title without probate, I don't know. You'll just have to rely on an experienced Virginia probate lawyer to answer that question. You can ask them outright to explain what you've heard from the other lawyers. Hopefully they will make clear what you need to do. Justia can help you locate one, and many offer free initial consultations. Good luck.

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