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Virginia Estate Planning Questions & Answers
1 Answer | Asked in Estate Planning, Family Law, Civil Rights and Communications Law for Virginia on
Q: Can my father's living siblings & children successfully fight for the right to properly bury my father who has no will.

My father is born and raised in Danville, VA. He remarried to make his oldest daughter a legal citizen which wasn't completed. His baby mother has refused to allow us to have his body for our funeral & burial. They expect our entire family to drive 8 hours to visit my father, plus they are... Read more »

Benjamin Inman
Benjamin Inman answered on Sep 21, 2021

Im sorry that you lost your father. Losing a parent at any age can be extremely difficult.

I dont think there is enough information in your question to give you an answer. My best guess from reading between the lines here is that your father died outside of Virginia in a state where he was...
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1 Answer | Asked in Estate Planning for Virginia on
Q: How do primary beneficiaries of an IRA work? What about secondary beneficiaries?

Wills and Estates

Richard Sternberg
Richard Sternberg answered on Sep 13, 2021

I have seen the terms use incorrectly before, so it is useful to have context, but the usual meaning go a primary beneficiary is the person, persons, or entities that are first in line to receive the proceeds upon the death of the grantor. A secondary or contingent beneficiary takes only if the... Read more »

1 Answer | Asked in Criminal Law, Employment Law, Estate Planning and Personal Injury for Virginia on
Q: If a witness in a case has a criminal record, how does that impact their credibility if they are asked to testify?
James H. Wilson Jr.
James H. Wilson Jr. answered on Aug 31, 2021

A witness may be asked about felony convictions and misdemeanors involving moral turpitude - lying, cheating and stealing. These types of crimes reflect on the credibility of the witness.

1 Answer | Asked in Estate Planning, Real Estate Law and Probate for Virginia on
Q: My Mother in law willed her home to all 6 of her children. Her eldest son died having only a wife no children. His wife

Just died in the middle of the sale of the home. My mother in laws will states that if any of her children that do not have children their part goes back to the other children. Can my sister in law will her part of inherited land that was willed to her husband from his mother to her sister or does... Read more »

Nina Whitehurst
Nina Whitehurst answered on Aug 27, 2021

The exact timing matters and the exact wording of the will matters too. There is not enough information here to answer your question. You should schedule a consultation with a probate attorney.

1 Answer | Asked in Estate Planning for Virginia on
Q: I am the executor of my aunts will divided as follows- my father 35% Me 35% brother 1 15% brother 2 15%

Father passed a month after aunt did. So where does his portion go, his wife is still alive. And if it goes to 'him' does it go to my mother (his wife) or to my fathers estate?

James H. Wilson Jr.
James H. Wilson Jr. answered on Aug 11, 2021

If a Virginia resident dies intestate - without a will, his or her assets, including the present right to an inheritance, are part of his or her estate and would pass, if at all, according to the law of intestate succession, as administered by the personal representative of the estate - an... Read more »

1 Answer | Asked in DUI / DWI, Employment Law, Estate Planning and Real Estate Law for Virginia on
Q: What comes out in discovery during a lawsuit?
Richard Sternberg
Richard Sternberg answered on Aug 1, 2021

The answers to the interrogatories asked, the documents subject to a document request, the admissions that the parties make in response to requests, the oral answers to depositions of parties and witnesses, and the documents and things that are sought to be examined. What those things are is... Read more »

1 Answer | Asked in Estate Planning for Virginia on
Q: Hi. My father recently passed away and myself and my sister are his heirs. There is no will. What do we do from here?

There are 2 properties in Puerto Rico in his name of which one shows his ex-wife listed. He divorced many years ago and to my knowledge there was a separation of their properties done. Where can we gain the knowledge of whether or not the property is indeed his ex wife's as well? Also, what... Read more »

Richard Sternberg
Richard Sternberg answered on Jul 27, 2021

It very much matters where your father was domiciled when he passed. You should consult counsel licensed in that state. If the only assets are Virginia real estate, you might avoid formal probate, but, in all likelihood, you'll need a probate in Virginia and an ancillary probate in Puerto... Read more »

1 Answer | Asked in Estate Planning, Real Estate Law and Landlord - Tenant for Virginia on
Q: I'm looking for a legal service to take on joint partnership in a fixit upper property. My partner is refusing to sell.

I bought a fixit upper property from an auction with a partner to fix the house and sell it. After remodeling the house, my partner rented the property for the last 5 years to 3rd. party and refused to sell nor give me my share of the rental income. The deed in both our names half and half.... Read more »

Richard Sternberg
Richard Sternberg answered on Jul 26, 2021

If this property is in Virginia, the correct pleading is a Petition for Sale in Lieu of Partition, and, under Virginia law, the legal fees are paid off the top from the sale. As such, most attorneys will want some form of retainer to cover the initial fees, but those can be reimbursed at the end,... Read more »

2 Answers | Asked in Business Formation, Civil Litigation, Employment Law and Estate Planning for Virginia on
Q: What are the different ways an attorney finds out information about a case through discovery?
F. Paul Maloof
F. Paul Maloof answered on Jul 16, 2021

Request for Admissions, Interrogatories and Request for Production of Documents.

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1 Answer | Asked in Estate Planning and Real Estate Law for Virginia on
Q: If my old but current will says give my house to my kids, but I title the house jointly with my fiance, what happens?

Will that directive be ignored and my fiance gains ownership as surviving owner? Or will the will override the title? I understand that I should have the two (title and will) in sync, but in the interim, what would happen upon my death?

Richard Sternberg
Richard Sternberg answered on Jul 13, 2021

The two should be in synch, because having them inconsistent can be used to confess and delay proceedings when everyone needs certainty and dispatch. The inconsistency can be used as evidence that your testamentary intent was uncertain or that you were confused. Unless you can be proven... Read more »

1 Answer | Asked in Estate Planning, Civil Litigation, Elder Law and Probate for Virginia on
Q: Can a trustee legally represent a beneficiary in court and be her attorney? From any false accusations from her sibling

My question: Is a trustee (also an attorney) allowed to legally represent and defend a beneficiary in court and be her attorney if there are any possible future legal suits against this beneficiary from her litigious jealous sister? For example: for medical neglect? The trustee is NOW the new... Read more »

F. Paul Maloof
F. Paul Maloof answered on Jun 25, 2021

I regret that I do not handle matters that involve Trusts and/or Trustees. Sorry.

1 Answer | Asked in Employment Law, Estate Planning and Real Estate Law for Virginia on
Q: Why do people sometimes try to avoid going to court by settling? In other words, what is the fear?
Richard Sternberg
Richard Sternberg answered on May 24, 2021

Losing?

Major legal expense?

Inability to collect?

Witnesses forget the facts?

Party says something stupid?

Risk... risk... risk.

1 Answer | Asked in Estate Planning and Probate for Virginia on
Q: What happens to a car loan when a cosigner dies?
Richard Sternberg
Richard Sternberg answered on May 24, 2021

As long as the loan continues to be paid timely, nothing happens. If it is not paid, the lender enforces against the living signer and tries to enforce against the deaf citizens-signer. Upon learning of the demise, they may proceed to file a claim in the probate estate.

1 Answer | Asked in Estate Planning and Probate for Virginia on
Q: Family member in Alexandria VA. Not sure if he will survive. Don't know if has a will. need advice

Do I need to hire attorney to represent our family and handle the estate? If he passes away we do not know anything about life insurance or burial insurance but we will have to pay the bill for the funeral because we do not know any thing about his finances etc.

Ross Cameron Hart
Ross Cameron Hart answered on May 21, 2021

I am sorry for your situation.

I always recommend consulting an attorney for an estate - depending on the estate we can save the family money and keep them from making mistakes in handling the estate. Consult a probate lawyer.

There's usually no hurry when someone passes...
Read more »

2 Answers | Asked in Estate Planning for Virginia on
Q: I have a revocable trust naming my daughter as successor trustee. She is sole beneficiary. I recently discovered that

The sole trustee cannot be the sole beneficiary. Can my designated trustee also be the sole beneficiary?

Nina Whitehurst
Nina Whitehurst answered on May 4, 2021

It is not true that the sole beneficiary cannot be the sole trustee. However, it is true that if you set it up that way, it is virtually impossible to afford the beneficiary any asset protection. If asset protection for her is your goal, then you should name an independent trustee and also take... Read more »

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1 Answer | Asked in Estate Planning for Virginia on
Q: In Virginia, are sons of deceased sister valid heirs to her brother's estate-no will, no kids, no parents, and unmarried

My mom passed away a few months before my uncle, but we have been advised that my brother and I are valid heirs. I read about the 120 hour rule, but that does not seem to apply here, because my mom has living sons. He had three sisters, including my mom. One of the two living sisters is... Read more »

James H. Wilson Jr.
James H. Wilson Jr. answered on Apr 30, 2021

The course of descents in Virginia is set forth in Virginia Code Section 64.2-200 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 or their descendants of the surviving...
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1 Answer | Asked in Estate Planning for Virginia on
Q: Is it illegal to hold someone else's property against his or her will if they ask for it back?
James H. Wilson Jr.
James H. Wilson Jr. answered on Apr 24, 2021

A Virginia resident can file a Warrant in Detinue for the return of specific personal property or its fair market value. A person who converts another's property to his or her own use has committed the tort of conversion. If someone takes someone else's property with the specific intent... Read more »

1 Answer | Asked in Estate Planning for Virginia on
Q: What happens if someone refuses to give your your belongings after you ask them to do so?
James H. Wilson Jr.
James H. Wilson Jr. answered on Apr 10, 2021

In Virginia, a personal property owner can file a Warrant in Detinue in General District Court for the return of personal property or an award of its fair market value. The Warrant in Detinue is a fill-in-the-blanks form. In Circuit Court, a Complaint for Detinue would have to be drafted by the... Read more »

1 Answer | Asked in Estate Planning, Family Law and Real Estate Law for Virginia on
Q: Can you stay at the house of a relative if they don't want you to? Isn't that illegal?
Richard Sternberg
Richard Sternberg answered on Mar 29, 2021

Maybe. I need more information. Is the person staying a spouse? Is it a dependent child? Even if there is no duty of support, criminal law only becomes involved if there is a crime, such as breaking and entering or trespass, so calling the tenancy illegal stretches the common meaning of illegality.... Read more »

1 Answer | Asked in Estate Planning for Virginia on
Q: I would like to get a Will but not include my husband. I live in Virginia. Thanks
James H. Wilson Jr.
James H. Wilson Jr. answered on Mar 20, 2021

A spouse is not required to make his or her spouse a beneficiary of a last will and testament; however, there are statutory rights for surviving spouses that limit the ability to completely disinherit a spouse in Virginia. A surviving spouse can effectively renounce a will and claim an elective... Read more »

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