Houston, TX asked in Estate Planning for Virginia

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 has the home and lot, does he have entitlement to all of it's contents?

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1 Lawyer Answer
James H. Wilson Jr.
James H. Wilson Jr.
  • Estate Planning Lawyer
  • Glen Allen, VA
  • Licensed in Virginia

A: 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 make sense in light of this typical structure. Any personal property not subject to a specific bequest, and not passing outside the will through a nontestatmentary transfer, would pass according to the residuary clause.

Whether a home includes the personal property contained therein would depend on the language used by the will drafter as reflecting the intent of the testator. For example, a will drafter might refer to a home and its contents, which would include personal property, or my real estate located at a specific address, which would likely not include personal property.

In some instances, a poorly-drafted will, for example, one without a residuary clause, results in partial intestacy. The will passes some, but not all of the decedent's property at his or her death. In such an event, the property not passing under the will would pass according to the law of intestate succession.

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