Cumming, GA asked in Estate Planning and Probate for Virginia

Q: After being married to and living with a man for 8 years we separated but did not get divorced. We had 2 boys.

We never lived together again. 10 years after we separated he had a heart attack, suffered brain damage, and had to be put in a home for 10 year. He recently passed away. All he has left is about $330K in his IRA. While incapacitated his mother created a will leaving all money to his sons and nothing to me. She also had made his sons the only beneficiaries of his IRA. I now know that I should not have let this happen. I now feel that if we had divorced after 8 years of marriage I would have received 50% of everything including the IRA. My boys agree so we decided on a 25%-37.5%-37.5% split where I get 25%. Is there any way to get the beneficiary selection changed post mortem? My CFP say it might be able to go to and estate IRA then divide it up from there or if that does not work the boys can take it then just gift me the amounts annually . What do you think is the best way to go. Remember, at his death I was still his wife (28 years) and the boys have be living mostly with me.

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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: Property often transfers at death through nonprobate transfers, including survivorship on title, beneficiary designations on accounts, payable on death bank accounts (POD), and transfer on death investment accounts (TOD). Nevertheless, such transfers are still subject to legal requirements of capacity to contract and voluntariness. Just as a will may be challenged or impeached for lack of testamentary capacity or undue influence, a person interested in a decedent's property can challenge his or her competency or capacity to make a contract or voluntariness through duress or undue influence.

A well-drafted settlement agreement typically excludes the possibility of later revision without the written consent of all parties.

Anyone with an interest in an estate or property of a Virginia resident should consult with an experienced Virginia probate lawyer.

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