Virginia Estate Planning Questions & Answers

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.

Q: My mother died and left my only sibling, a "deed of trust" which reduced me to 1/3 of estate. How can I contest this?

1 Answer | Asked in Contracts, Estate Planning, Libel & Slander and Probate for Virginia on
Answered on May 4, 2018
Richard Sternberg's answer
It certainly sounds like you need a lawyer. What I don't read in your story is a question. Let me infer that you are asking how to find a good estate litigator. I suggest you visit Avvo.com. Navigate to Find a Lawyer. Type in the county where your mother resided at time of death. Type in "probate" for type of law. Read the client reviews and endorsements. Ignore the ads.

Q: Mother passed away with no will. She was still married but legally separated. Should the house go to children or husband

1 Answer | Asked in Estate Planning and Real Estate Law for Virginia on
Answered on Apr 18, 2018
Richard Sternberg's answer
"[Virginia] Code § 64.2-200. Course of descents generally; right of Commonwealth if no other heir.

"A. The real estate of any decedent not effectively disposed of by will descends and passes by intestate succession in the following course:

"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 spouse, in which case, two-thirds of the estate descends...

Q: My will names my spouse as beneficiary but we have since been divorced. Will a judge award her the property if I die?

1 Answer | Asked in Probate and Estate Planning for Virginia on
Answered on Apr 14, 2018
Richard Sternberg's answer
While I believe there is a presumption that a will favoring a spouse is invalidated by a divorce, and, if your actual will says "my spouse", rather than including her name, then the grant probably fails anyway. You have no spouse. But, it is foolish to rely on that. After a divorce, you should pay a lawyer to re-draft your will. If the will was written by someone local, it is probably still on their computer. The fix will be inexpensive. If the will is old or way out of date, it still isn't a...

Q: My Aunt recently passed, no will. She was single, no children. How would her estate be separated?

1 Answer | Asked in Estate Planning, Elder Law and Probate for Virginia on
Answered on Apr 6, 2018
Steve Miyares' answer
Under section 64.2-200 of the code of Virginia, her estate would pass to her surving parents. If there are sosurving parents, then her estate would be divided among her siblings and their descendants. You shouldconsult with an estate planning attorney for a more detailed analysis of your particular situation

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