Q: Can the court clerk decide to not appoint the executors as listed in the will and put all heirs on property deed?
We have one heir who probably won't sign papers for even distribution of property. Is there is an advantage here for co-executors to be appointed as listed in the will to avoid this one estranged heir and decide the outcome for the property?
A: “Advantage” should have no relevance to the appointment of an executor in a testate estate, and title to the land passes in Virginia outside probate subject to the actions of the executor in administering the estate. In other words, your question makes no sense, and the uncooperative heir or beneficiary shouldn’t matter. You need to sit down with a lawyer and let him read the Will and interview you. My best wild guess on the facts you’ve recited is that the probate clerk doesn’t think the Will is valid and doesn’t have the time or the authority to solve your family problems. Seek qualified counsel. You can get reimbursed from the assets of the estate.
A: The Clerk cannot refuse to qualify the Executors named in a Will admitted to probate if they meet the requirements for surety, but that does not answer your question regarding real property. The Executor doesn't automatically have authority over the real property. The Will acts as a deed to transfer the property as indicated in the Will and unless the Executor is directed to sell, or has the authority to sell and must do so in order to pay debts of the estate, the Executor has no authority over the real property. If there is some legitimate reason that the Executor NEEDS authority over the real property such as the payment of debts, they can petition the court to gain such authority but if it is merely for the convenience of joint owners then your method of addressing that would be a partition suit by the joint owners who desire a sale for equal distribution of proceeds. Your concern regarding "equal distribution" confuses me though because if it is passing as part of the residue then it does pass by equal ownership. If there is a specific bequest and it is not meant to be equal and you are settling a Will contest then that is another matter entirely and would be settled by litigation.
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