Virginia Estate Planning Questions & Answers

Q: I live in a. and my brother died without a will. I need to become personal representative to open an estate checking acc

1 Answer | Asked in Estate Planning for Virginia on
Answered on Mar 11, 2019
Karen L. Rowell's answer
You will need to contact the Court Clerk in the jurisdiction in Hawaii where he died and go there to qualify on his estate. You will need a certified copy of his death certificate. You should be able to reimburse yourself out of the estate assets for expenses incurred in the administration of the estate, within reason, with the approval of the Commissioner of Accounts (or whatever they call that in Hawaii, it may be very different). You should also contact an attorney local to the area in...

Q: Can an executor of a will sell a house under his control for $1.00?

1 Answer | Asked in Estate Planning for Virginia on
Answered on Mar 11, 2019
Karen L. Rowell's answer
To sell the house for less than it's value would be a breach of fiduciary duty. However, if the other beneficiaries disclaimed their shares it would pass to whoever would take if they had predeceased, which could result in a larger share, or perhaps even the entire interest, passing to the daughter. You would need to have an attorney review the Will to determine who takes if they had predeceased, such as, does it pass to whoever survives out of the three named or does it pass to their heirs,...

Q: Can the court clerk decide to not appoint the executors as listed in the will and put all heirs on property deed?

2 Answers | Asked in Estate Planning and Probate for Virginia on
Answered on Feb 14, 2019
Richard Sternberg's answer
“Advantage” should have no relevance to the appointment of an executor in a testate estate, and title to the land passes in Virginia outside probate subject to the actions of the executor in administering the estate. In other words, your question makes no sense, and the uncooperative heir or beneficiary shouldn’t matter. You need to sit down with a lawyer and let him read the Will and interview you. My best wild guess on the facts you’ve recited is that the probate clerk doesn’t think...

Q: What happens if one of the witnesses to a holographic will dies before the person who wrote the will?

2 Answers | Asked in Probate and Estate Planning for Virginia on
Answered on Jan 16, 2019
Richard Sternberg's answer
If it was executed correctly, it's a self-proving will signed by two or three witnesses before a notary public, and it is no problem at all. If the testator went the lawyer-free way, Virginia Code § 64.2-403(B) provides that: "A will wholly in the testator's handwriting is valid without further requirements, provided that the fact that a will is wholly in the testator's handwriting and signed by the testator is proved by at least two disinterested witnesses." So, if the will cannot be proved...

Q: Can a life estate be granted to income through a premarital agreement?

1 Answer | Asked in Estate Planning for Virginia on
Answered on Dec 15, 2018
James H. Wilson Jr.'s answer
Virginia has a premarital agreement act in Chapter 8 of Title 20 of the Code of Virginia. Under Virginia's premarital agreement act the fiances may address almost any legal issue arising from the marriage, including estate planning as follows:

Virginia Code § 20-150. "Content of agreement.

Parties to a premarital agreement may contract with respect to:

1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and...

Q: I got a copy of my grandmas will from courthouse. Is it possible there's another will?

1 Answer | Asked in Estate Planning and Probate for Virginia on
Answered on Dec 3, 2018
Richard Sternberg's answer
I wouldn’t be a bad idea to retain Virginia counsel to review the Inventory and First Account, but investment accounts with designated beneficiaries generally pass outside the Will and the probate estate. So, if you are not listed as a beneficiary of those accounts, the Will may not matter in those distributions.

Q: Dad passes his life insurance company is writing the check to his wife that he hasn't lived with for over 15 years.

1 Answer | Asked in Estate Planning for Virginia on
Answered on Oct 23, 2018
Sharon R. Moss' answer
For life insurance policies, 401k accounts, IRA, and some investment accounts, your father would have been asked to provide a beneficiary on the paperwork he filled out to open them. Whoever he listed as a beneficiary is who will receive those funds.

In Virginia, if a person dies without a Will, all other property passes as follows:

1. To the surviving spouse of the decedent, unless the decedent is survived by children or their descendants, one or more of whom are not children...

Q: How do I update a will with new information/different inheritors?

1 Answer | Asked in Estate Planning for Virginia on
Answered on Oct 9, 2018
Sharon R. Moss' answer
You can either have a new will drafted which revokes the old will, or you can have an addendum to the current will. If there are significant changes, it is best to have a new will drafted.

Q: Do I write a rental INCOME check to my uncle's estate? my cousins want check written to them.

1 Answer | Asked in Estate Planning, Probate and Landlord - Tenant for Virginia on
Answered on Oct 4, 2018
Richard Sternberg's answer
You need a consult with a competent lawyer. First, it isn’t clear whether you owe rent. Co-owners don’t pay rent, though your contracts and deed may reverse that. Second, you need to understand title before you pay anyone anything. Payments to the non-owner may not satisfy any rent that is due.

Q: Alzheimer's patient petitioned by spouse specific transfer

1 Answer | Asked in Elder Law and Estate Planning for Virginia on
Answered on Sep 27, 2018
Jay Braddock Jackson's answer
Having an illness that makes one incompetent to handle funds (among other things) does not mean the individual cannot inherit. In other words, the patient’s right to inherit is not impacted in any way by his illness. It may mean that a guardian will need to make certain decisions or request permission from the probate court to spend money for the benefit of that individual. The guardian cannot spend money without the court's permission.

A subsequent beneficiary may, however, need to...

Q: Can I make a provision in my will for an adult child who is not very responsible with money?

1 Answer | Asked in Estate Planning for Virginia on
Answered on Aug 24, 2018
Jay Braddock Jackson's answer
A provision in a will may not be as effective as you would like. There are other estate planning documents and instruments that may be more effective. If you don’t have confidence that your adult child will make good decisions about spending inherited money, you can put those decisions in the hands of someone else. One way to do this is by leaving the money in a trust, and appointing someone as trustee who you think will do a good job of managing the money on behalf of, or distributing the...

Q: My question is my grandfather wants to leave me his house. But we are unsure about how to go about it. And any issues.

1 Answer | Asked in Estate Planning for Virginia on
Answered on Aug 13, 2018
Thomas Woodward Ashton's answer
This is more of a wills/estate planning question. Depending on things like your age and whether or not your grandfather has clear title to the house, it may be a pretty straightforward answer. However, there are some important questions that need to be answered before you all take any action on his wish. Is there another person on the deed? How is title held? Does he have a mortgage? What is the value of the house? How old are you? And many more.

There are also tax planning questions...

Q: Father is trustee on mother's trust. After mother's death, father took out multiple mortgages on martial residence which

1 Answer | Asked in Estate Planning and Real Estate Law for Virginia on
Answered on Aug 9, 2018
Richard Sternberg's answer
You need a lawyer to review the notes and the deeds of trust or mortgages as well as the language in the trust and the applicable state law. If he had the power to use the corpus for his own needs, the daughter may be out of luck. If the notes are his and he had resources and he violated his fiduciary duties to the trust, it probably comes out his estate. In any event, they are his notes, not the daughter's, and a claim should probably be filed in his estate.

Reading an answer on the...

Q: What is required to settle the estate and financial accounts of a deceased parent without an original will?

1 Answer | Asked in Estate Planning and Probate for Virginia on
Answered on Aug 7, 2018
Richard Sternberg's answer
The original Will makes things much easier, because you may otherwise need to prove that the original wasn't destroyed intentionally by the testator. If the Will matches the intestate succession, the process is likely to be easier, but, if faced with a challenge, you will definitely need counsel. Basically, you need to present evidence that the copy is true and that the testator didn't revoke it.

As to learning about insurance, once the executor is appointed, you can present the death...

Q: My grandmother is living in a home owned by her now deceased parents. She is last surviving child. Is home legally her

1 Answer | Asked in Estate Planning and Real Estate Law for Virginia on
Answered on Jul 21, 2018
Richard Sternberg's answer
The answer depends on a number of factors including, at least:

1) How the house was titled to her parents;

2) where each parent resided at time of death;

3) When each parent died;

4) Where the House is located;

5) Who anywhere in the chain of title had a Will;

6) What each such Will said;

7) if there are no Wills in the chain of title, the names & dates of birth and death of any legal intestate heirs;

8) Whether spousal rights...

Q: My sis is administrator on our late mother’s estate. SHe has to provide a report to the court about what she has done.

1 Answer | Asked in Estate Planning and Probate for Virginia on
Answered on Jul 13, 2018
Richard Sternberg's answer
Look up and call the Commissioner of Accounts for your Circuit. Make an appointment and describe the issues accurately and succinctly.

Q: My adult children's father passed,away in carrollton va. fathers name & live in girlfriend is on estate.

1 Answer | Asked in Estate Planning, Real Estate Law and Probate for Virginia on
Answered on Jun 15, 2018
Richard Sternberg's answer
Someone needs to pay for a legal consultation and potentially an investigation before the house is sold. You need a title search and a court record search for a Will.

Q: In Virginia if someone has a life estate, are they responsible for the maintenance and upkeep of the property

1 Answer | Asked in Estate Planning and Real Estate Law for Virginia on
Answered on May 15, 2018
Richard Sternberg's answer
Waste is always prohibited. The definition of waste is much more complicated, but it puts a floor under the duty to maintain the property.

Q: This is an Intestate Succession Question concerning adult child with no spouse or children passing away Jan 2018.

1 Answer | Asked in Estate Planning and Probate for Virginia on
Answered on May 6, 2018
Richard Sternberg's answer
Interstate succession in Birginia is as follows:

all to the surviving spouse, unless there are children (or their descendants) of someone other than the surviving spouse in which case, one-third goes to the surviving spouse and the remaining two-thirds is divided among all children.

 if no surviving spouse, all passes to the children and their descendants.

 if none, then all goes to the deceased’s father and mother or the survivor.

 if none, then all...

Q: My daddy recently passed away in Arizona. I currently live in Virginia. Do I need a probate lawyer in Arizona or Va

1 Answer | Asked in Estate Planning and Probate for Virginia on
Answered on May 5, 2018
Richard Sternberg's answer
The probate needs to be filed in the county where your father resided at the time of death. If he was merely visiting, that doesn’t count. If he changed his residence to Arizona, by, for example, buying a house, signing a lease for a term, changing his drivers license, or other indicia of residence, you need a probate lawyer in Arizona.

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