Lawyers, Answer Questions  & Get Points Log In
Virginia Estate Planning Questions & Answers
1 Answer | Asked in Estate Planning and Probate for Virginia on
Q: When my Aunt dies, what will need to be done to give out monies/belonging left in her will?

I currently have guardianship and conservatorship over my Aunt. She is elderly and in a nursing home with hospice care. Hospice has asked me to start preparing for her funeral arrangements. She has a living will that will leave everything to myself and my brother. Is there a legal way I am supposed... Read more »

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Aug 4, 2022

A living will is an advance medical directive. It contains instructions for medical care if the principal becomes incapacitated.

I will assume you mean a will and I will assume that your aunt resides in Virginia, although you appear to be posting from Maryland.

Once your aunt...
Read more »

0 Answers | Asked in Estate Planning and Probate for Virginia on
Q: Are there any particular procedures to be followed when gifting items to an individual from an estate post-probate?

I am friend to the family of a deceased public figure. The family gifted me items that belonged to the deceased. Most specifically I want to know if the family needs to for any reason document the gifting (other than for any tax purposes) as having come from the estate.

1 Answer | Asked in Estate Planning and Probate for Virginia on
Q: Does funeral reimbursement from estate take precedence over other bills? Father's bank act is just enough to cover them

My father passed recently and we have the estate process going with my sister as executor. His bank account has enough to cover what we paid in funeral costs but there is 1 outstanding credit card debt so I was hoping funeral reimbursement superceded that.

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Jul 30, 2022

Section 64.2-528 of the Code of Virginia sets out the order in which debts are to be paid when assets in the personal representative's possession are not sufficient to pay all debts and demands. This is known as an insolvent estate. Funeral expenses are third priority, after costs and... Read more »

1 Answer | Asked in Estate Planning and Probate for Virginia on
Q: What happens when a life insurance policy says to the estatee? Does it spilt between all children

My mother died and had three life insurance policy’s. I was the sole beneficiary for all but one. The last one states it goes to the estatee, nobody was named. Who will that policy go to? Will it split between all children or will we have to go to court for one person to get it?

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Jun 3, 2022

A life insurance policy payable to the estate should be deposited in the estate account. The personal representative of the estate should have opened an estate bank account and obtained a taxpayer identification number for the estate. The personal representative must qualify through an... Read more »

1 Answer | Asked in Family Law and Estate Planning for Virginia on
Q: How to find out if my deceased father left anything for his children
Richard Sternberg
Richard Sternberg
answered on May 26, 2022

Have you asked your siblings or (step-)mother or other relatives if there is a Will or someone is filing probate? Did he have assets, and should you file as Administrator? A consult with a lawyer discussing your situation might be helpful, and, if that lawyer opens the estate, you’ll be repaid... Read more »

1 Answer | Asked in Estate Planning for Virginia on
Q: How do I go about changing bank accounts set up for funds collected from rental of my mother’s home to a trust account?

My mother (and father) are deceased, and my brothers and I rent her home in Virginia, using a property manager there who rents and manages the care of the house on my behalf (I live in Washington state). From the funds I collect monthly from the rental, it all goes into an account(s) from which I... Read more »

Richard Sternberg
Richard Sternberg
answered on May 17, 2022

Set up a trust. It won’t be hard, but it’s not a DIY project. Get Virginia counsel.

1 Answer | Asked in Estate Planning for Virginia on
Q: I would like my son to inherit my mother’s home instead of myself. Can I do this if she is unable to amend trust?

I am trustee and beneficiary of my mother’s revocable trust, also POA. My husband and daughter are listed as beneficiaries if I were to die, but my sons are not.

Mother is in a memory care facility with dementia.

As trustee, if the three of us sign a disclaimer, am I allowed to... Read more »

Richard Sternberg
Richard Sternberg
answered on May 16, 2022

There are often opportunities for tax savings as well as better planning in this sort of setting, but much depends on what the trust says. I see you are across the border in York, PA. I can refer you to someone, but you need a Pennsylvania admitted trusts and estates lawyer.

1 Answer | Asked in Estate Planning for Virginia on
Q: When does the statue of limitations began on breach of fiduciary duty in va?

Estate has been opened since 2019, majority of breaches happened that year but va has two year statue of limitations. Not sure if I have a chance in court, or do I just have to take a loss?

Ross Cameron Hart
Ross Cameron Hart
answered on May 10, 2022

If a fiduciary mis-handles an estate, then having them pay improperly handled money and property is technically called a 'surcharge' and is suing on the bond. That statute is ten years - see Virginia Code 8.01-245, here: https://law.lis.virginia.gov/vacode/title8.01/chapter4/section8.01-245/.

2 Answers | Asked in Estate Planning and Probate for Virginia on
Q: My stepsister sold house that my dad and her mom owned together without permission from her stepsiblings. No will. Ok?

Dad died in 12/2020 and her mom died early 2022. To my knowledge neither had a will. They live in Virginia.

Richard Sternberg
Richard Sternberg
answered on May 7, 2022

You might want a consultation with a Virginia lawyer to review the matter, but if the house was owned by dad and step-mom by entireties, and dad died first, the house belonged solely to step-mom when she died. I would think in a second marriage, the parties would title their home better, use a... Read more »

View More Answers

2 Answers | Asked in Divorce and Estate Planning for Virginia on
Q: How do I start divorce proceedings while married, living together, with minor children when the spouse refuses to leave

I want to divorce my husband. He refuses to establish a separation date, so I can’t do a no fault divorce. We live in my fathers house, it’s paid off, and will come to me upon his death through inheritance. There is no established rental agreement. I believe my husbands plan is to wait until he... Read more »

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on May 5, 2022

A Virginia resident can file for a divorce from bed and board immediately, based on either abandonment and desertion or cruelty and reasonable apprehension of bodily harm. Virginia recognizes contructive desertion, which is essentially a desertion of the marital relationship while the parties... Read more »

View More Answers

1 Answer | Asked in Divorce, Real Estate Law and Estate Planning for Virginia on
Q: My spouse&I live in a house owned by my dad. I will inherit when he passes. Would it become a marital asset in divorce?
James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on May 5, 2022

Property that is acquired by gift or inheritance during a marriage in Virginia starts as separate property in equitable distribution. This is an exception to the general rule that property acquired during the marriage and before the last date of separation is presumed to be marital property, no... Read more »

1 Answer | Asked in Estate Planning, Family Law, Elder Law and Health Care Law for Virginia on
Q: See below.

My partner and I have moved back to the Charlottesville area to provider assist with his grandmothers care. It is the hope of my partner and his family that his grandmother can qualify for Medicaid, once she has Medicaid, she can be moved into an assisted living facility paid for by Medicaid. The... Read more »

Ross Cameron Hart
Ross Cameron Hart
answered on Apr 4, 2022

You are asking a very complex question on a short answer forum and mis-understand some of Medicaid rules. Aunt may or may not be wrong - there are several ways this can be handled.

You need an Elder Law Attorney to advise you, and Charlottesville has several very good ones who are...
Read more »

2 Answers | Asked in Estate Planning and Real Estate Law for Virginia on
Q: Should Dad's house be included in his will or should it be listed separately?
Shafeek Seddiq
PREMIUM
Shafeek Seddiq
answered on Mar 21, 2022

It depends on what your dad wants. What does separately mean? I would recommend your dad reaches out to an estate planning lawyer and explain what he wants. Then, the lawyer can tell him what estate documents he needs.

View More Answers

1 Answer | Asked in Contracts, Estate Planning, Real Estate Law and Landlord - Tenant for Virginia on
Q: My landlord has given me a 60 day notice to leave as he “wants to sell” the home. We have been here a year and lease is

About to expire. I’ve talked with previous tenants and the landlord has done the same to them and refused offers that was given to buy. What can I do to stay?

Steven Krieger
Steven Krieger
answered on Mar 13, 2022

It depends on the specific language in your lease agreement. If there's a provision that permits the owner to terminate the agreement for purposes of a sale, then you're in a more difficult position. I'm sure anyone who responds would be happy to hep if you'd ie to hire an attorney. Good luck.

1 Answer | Asked in Estate Planning, Real Estate Law and Tax Law for Virginia on
Q: I am the trustee of mother’s estate & beneficiary of her house. Upon death, can I transfer it to my son directly?

She has dementia. I want my son to have the house instead of me. Would he be able to inherit it at the stepped up value?

I was hoping I could just change the title from my mother’s name to his.

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Mar 2, 2022

The phrasing of your question is a bit confusing. An estate does not usually have a trustee, the personal representative of an estate is either an executor or an administrator. It is possible for a pour over will to automatically transfer assets into an existing trust, such that the trustee of... Read more »

1 Answer | Asked in Estate Planning, Family Law and Probate for Virginia on
Q: My aunt's husband passed away and there was unpaid credit card debt. Does she owe this if it is not in her name?

What do we do if it's not in her name and only her deceased husbands name? There is one credit card that she is a joint user for. We have gotten death certificates so far but nothing else.

Richard Sternberg
Richard Sternberg
answered on Feb 10, 2022

The wife is not liable for credit card debt she did not contract to pay by being on the card or using the card. She may be liable if the charges were for something the law calls necessaries, like medical care, food, clothing, and other needs of her spouse, but that is liability for the necessary... Read more »

1 Answer | Asked in Estate Planning for Virginia on
Q: Estate question at Mother’s request- my father died 4 year ago. All assets were held jointly or with TOD to my mother.

Assets include property, bank accounts, stocks, mutual funds and vehicles. There is no debt whatsoever. After fathers death, my mother had all assets, except vehicles, changed to her name with a TOD to my 2 siblings and me. Property deeds were also changed to include a TOD. Question 1- when she... Read more »

Ross Cameron Hart
Ross Cameron Hart
answered on Jan 10, 2022

All great questions, and NOT suitable for a quick internet messaging site such as this. There are a lot of variables you haven't considered and not fully understanding them can cost you thousands.

Elder Law Attorneys handle this type of matter and can give you good advice. Most of...
Read more »

1 Answer | Asked in Estate Planning and Probate for Virginia on
Q: Do I have to return my husband’s inherited property to his siblings after his death?

My father in law passed in 2013. His home and belongings stayed empty for 2 years before my husband, our young children and me bought out his siblings for the home. Before us moving in, the siblings and husband, split up their fathers belongings. My husband passed away in 2020 and the deed to our... Read more »

Richard Sternberg
Richard Sternberg
answered on Dec 18, 2021

As I understand the facts, your father-in-law passed in 2013, and the personalty in the estate was divided among the heirs and the estate closed. Around 2015, you and your husband bought the house and its contents, and they belonged to him or both of you. Your husband passed in 2020, and now his... Read more »

2 Answers | Asked in Estate Planning for Virginia on
Q: My mother lives in Newport News VA. She wants to leave me her house that still has a mortgage. What is the best way
Sonja Aoun
Sonja Aoun
answered on Dec 17, 2021

Generally speaking, a house that has a mortgage on it can still be transferred upon the owner's death. Most people use a will or a trust to do this, but it does matter which type of trust is used. For example, if someone attempts to leave their house to another person and retitle it into the... Read more »

View More Answers

1 Answer | Asked in Estate Planning and Probate for Virginia on
Q: If an executor of an estate fails to perform his duties and all property sits unclaimed for years, can heirs claim it?

My ‘well to do’ great-great aunt died in 2005 with a will naming her nephew as executor, he and his wife as beneficiaries, and my father as an heir. This nephew died intestate in 2003. His wife died in 2005, five months after my g-g aunt. 2 months prior to wife’s death she appointed a friend... Read more »

Richard Sternberg
Richard Sternberg
answered on Oct 22, 2021

Your description is too imprecise to render an opinion, but it sounds like you need a probate attorney licensed in Virginia to re-open the estate of Wife. I don't understand from your description what Father's rights are. You call him an heir, but you tell me that the sole beneficiaries... Read more »

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.