Q: Who inherits property after the last spouse dies?
My mother passed away 10 years ago with no will. She had married a man with children and together they had brought a home. The deed of trust is in both names and listed as tenants by the entireties with the right of survivorship. The husband is now dead. Are ONLY his children entitled to the property, or does my mothers' children also have rights to the property?
A:
When a Virginia resident dies intestate - without a will - property may pass through nonprobate transfers, such as survivorship, POD account beneficiaries, TOD account beneficiaries, retirement plan beneficiaries, or other nonprobate measures, or according to the law of intestacy in Virginia, which appears in Virginia Code Section 64.2-200 et seq. If a married couple holds title to real property as tenants by the entirety with the common-law right of survivorship, title remains in the name of the surviving spouse upon the death of either spouse.
Anyone facing probate in Virginia should consult with an experienced Virginia probate lawyer.
A: That is some seriously poor estate planning, and it may be worthwhile to sit down with a lawyer to check the deed (not the deed of trust) any other trusts, and whether your step-father had a will. But, if the deed was by entireties and bought during the marriage, it became his house when she died, and it goes to his children, including adopted children, when he dies without a spouse.
A: I am answering this question with the assumption the parties resided in the State of Virginia. With the real estate being owned by your mother and your step-father as husband and wife and as tenants by the entirety with the right of survivorship, when your mother passed the property became the sole ownership of your step-father. His interest in the real estate would pass through his estate. Assuming he had no will, the property would pass to his heirs at laws as determined under the Virginia intestate succession laws.
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