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 without it going through the probate process? And do all 4 children have to agree on this action being done? What are the laws for this in VA? Thanks
A: In Virginia, real estate passes outside of probate. If the unappointed executor is acting in derogation of the Will, and the Will has not been filed, you need to file the Will and move to appoint an Administrator cum testamento annexo (c.t.a.). This needs to happen now and it wouldn't be a bad idea to file a lis pendens, as well, to block the closing pending court resolution. The case gets much harder if the real estate is sold and the executor and favored beneficiary claim that the property was sold at value. Generally, an executor cannot sell property in Virginia, because it already transferred to the heirs so their signature is needed, but this is a fraud in the making, and the uncle might get away with it if you aren't prompt.
Nina Whitehurst agrees with this answer
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A: Your question leaves out some information - I'll point out that 'belongings' is generally personal property (household goods - TV, furniture, etc) and is not real property such as the home. What does the will say about the real property.
However, that he's acting without at least recording the will concerns me. You need to consult an experienced probate lawyer soon. I'll also point out that it is a crime to withhold or conceal a will.
This forum is designed and good for simple, general questions that will get you to the 'next step' for legal situations. Sometimes all people need is a simple answer. From the facts you’ve given, it seems that you need a lot more than an internet answer. Find and sit down with an experienced attorney in your area – there is a ‘search’ feature that can help you.
James H. Wilson Jr. agrees with this answer
A: 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 real estate, then the real estate "drops like a rock" into the names of the heirs. Typically, a real estate affidavit would be filed, listing the names of the heirs who are now the owners. Those parties together could sell, transfer or convey the property.
Most purchasers of real estate finance the purchase with a loan, which typically requires lender's title insurance. An irregularity in title should be noticed as an objection or an exception to issuance of a policy. You have a number of ways you might address a sale between the uncle and another relative. It is important to address this issue now with an experienced Virginia probate and/or real estate attorney.
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