Q: Who gets the house if both husband and wife die without a will and it never went to probate in Virginia?
My sister and her husband are owners of a home. Both have died and their son took over the house but never put it through probate. He is now dying and doesn’t have a will. He has diminished mental capacity at this time. Since the house is still in my dead sister and brother-in-law’s names, what happens with the house? Thank you.
A: The correct answer depends on the form of title and the order of the passing of the grantors, so you start with reading the deed and an interview. But, in a Virginia estate, the property passes outside of probate subject to being recaptured for creditors. If the son is disabled and potentially eligible for services, his family might want to seek counsel to preserve the house from Medicaid recapture.
When a Virginia resident dies intestate, without a will, the real property "drops like a stone" into the names of the heirs at law. The heirs at law are the persons specified in the course of descents in Virginia's intestate succession statutes, Sections 64.2-200 to -206. You do not indicate whether your sister or her husband died first, and whether the survivor remarried. The son inherited either the entire property, or two-thirds, with a third to the new surviving spouse, if there were one. If the son dies intestate, his share goes to his descendants. If there is no surviving spouse, no descendants, and no surviving parents, then the share goes to the siblings and their descendants. As you can see, intestate succession or the course of descents can be complicated.
Anyone with an interest in an intestate estate should consult with an experienced Virginia probate lawyer.
Both Mr. Sternberg and Mr. Wilson are correct, and the answer can be complicated depending on family history. Simplistic analysis: ASSUMING Sister and Husband were parents of nephew (son) who was their only child. He owns the property whether or not their estate was 'put through probate'. It is being TAXED in their name, but under the law it's in nephew's name. If nephew had children, they divide the property among them; if he didn't have any children, then you go 'upstream' to determine who his heirs are; 1/2 to his father's family and 1/2 to his mother's. As she was your sister, you share her half with any other of her brothers and sisters, or if one of them died leaving children, they divide their parents' share.
To unravel this you will need an experienced lawyer - it's way too complicated to answer completely on an internet information forum.
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