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Virginia Estate Planning Questions & Answers
1 Answer | Asked in Estate Planning, Probate and Real Estate Law for Virginia on
Q: My father passed away 3 months ago and was a co-signer on a home mortgage with his step-father.

Can the house just be left in the step-father's name, and not be considered an asset of my father's?

James H. Wilson Jr.
James H. Wilson Jr. answered on Feb 5, 2020

Most real estate financing in Virginia is secured by a deed of trust rather than a "mortgage", although that term is used in a general sense for any loan secured by real estate. Title is determined by the deed and the chain of title, not who may or may not be liable on the note secured by the deed... Read more »

1 Answer | Asked in Probate, Elder Law and Estate Planning for Virginia on
Q: Our mom passed a few months and I was shocked to learn that my older brother had been taking money from her account

And even her home equity line of credit. I was only made aware because I am the executor of her estate. And they hadn't had any payments. What can I do? All 3 son's was beneficiaries on her accounts.

Richard Sternberg
Richard Sternberg answered on Jan 30, 2020

It is probably a good idea to review the facts with a lawyer. It might be that your brother had the right to do that, or he might have been abusing your mother by stealing her money and stealing from the estate. You may be able to collect it back from him or take it as a credit against his... Read more »

1 Answer | Asked in Divorce and Estate Planning for Virginia on
Q: Can a probate court reverse overturn property distribution from a prior divorce decree?

My ex and I divorced 6 years ago. We had a jointly titled exotic car. In our divorce decree, my ex was supposed to pay me for my share of the car before he could retitle it into his name alone. He made a few payments then stopped. He subsequently died and now the executor of his estate is... Read more »

James H. Wilson Jr.
James H. Wilson Jr. answered on Jan 20, 2020

Your question does not match your description of the legal problem. Joint property with a right of survivorship will pass to the survivor upon the death of a co-owner. In Virginia, divorce severs survivorship rights between spouses. The estate would now include your deceased ex-husband's... Read more »

1 Answer | Asked in Estate Planning for Virginia on
Q: Would a Durable Power of Attorney and a Health Directive give an unmarried couple the same rights as a civil marriage?

There are no children involved in the 18-year relationship. We are more concerned with something unexpected such as an accident rather than separation.

James H. Wilson Jr.
James H. Wilson Jr. answered on Jan 13, 2020

No, durable powers of attorney and advance medical directives do not create the same rights and duties as marriage. The public policy of the Commonwealth support marriage as a fundamental institution of society in ways not enjoyed by mere parties to a contract. Spouses enjoy a number of rights and... Read more »

1 Answer | Asked in Estate Planning for Virginia on
Q: I'm administrator for an estate in Gloucester County, VA. Am I obligated to research back child support of beneficiary?
Jay Braddock Jackson
Jay Braddock Jackson answered on Jan 8, 2020

When a person dies owing back child support, the debt passes to the estate. That debt is owed to the custodial parent and not to the child. Normally, this person would need to file a claim with the probate court in order for the debt to be recognized. It does not appear that you, as administrator... Read more »

2 Answers | Asked in Estate Planning for Virginia on
Q: Under Virginia Law can either spouse will their half of home to kids from a prior marriage in case they pass first?

This to ensure my kids get half the house in case I pass first.

James H. Wilson Jr.
James H. Wilson Jr. answered on Jan 5, 2020

Most married couples in Virginia own their real property as tenants by the entirety with the common-law right of survivorship. This tenancy is based on the old common-law fiction that a husband and wife were a single legal unit. Each spouse owns the undivided whole. Upon the death of either, the... Read more »

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1 Answer | Asked in Estate Planning and Probate for Virginia on
Q: My gma died in 1998, and she didn't have a will, my mom, aunt & uncle have all passed my aunt was the last to pass and

left my grandmother house to her husband. I've been asking him for it for 2 yrs for the house & all he says is let me think about it. Is there I way I can get my gma house from him? We live in VA but the house is in NC.

Richard Sternberg
Richard Sternberg answered on Dec 29, 2019

You need to review each of the estate's before reaching a conclusion. Some things are clear from your recitation of facts, however. The house no longer belonged to your grandmother by the end of 1998. If she didn't have a Will, the house then belonged to whomever was named as a successor in the... Read more »

1 Answer | Asked in Estate Planning for Virginia on
Q: I'm writing my will. Is there a minimum requirement or a percentage that a former spouse is to receive after death?

I live in VA. I also have a son with my former spouse. She is receiving spousal and child support.

Lisa Mathews
Lisa Mathews answered on Dec 3, 2019

Hello,

There is no requirement that you include a former spouse in a will in Virginia.

1 Answer | Asked in Estate Planning, Landlord - Tenant and Probate for Virginia on
Q: My Fathers widow is still living in my parents home-How do we have her removed so that we can sell the home?

My Father passed in January and left his personal property and his home to his children. The widow of 8 years is not

cooperating and I would like to sell the home to settle my Fathers affairs. The widow believes everything is hers and will not allow us to have the person family items.

James H. Wilson Jr.
James H. Wilson Jr. answered on Nov 26, 2019

You do not indicate in your question whether your father died testate - with a will - or intestate - without a will, whether his surviving spouse is claiming any statutory rights to his augmented estate or family residence. I would assume he died with a will because you do not recognize any rights... Read more »

1 Answer | Asked in Probate and Estate Planning for Virginia on
Q: My father died years ago , now my stepmother has passed away also. Now her son has inherited all of my father's assets.

Is there anything I can possibly do ?

Nina Whitehurst
Nina Whitehurst answered on Oct 27, 2019

If your father died without a will, then his children should have inherited about 2/3 of his estate at that time. If you did not inherit anything, then either he had a will leaving everything to his wife, or his estate was not probated, or his estate was probated and there was fraud on the court.... Read more »

2 Answers | Asked in Estate Planning, Real Estate Law and Tax Law for Virginia on
Q: Can someone presently be the nominee of a dead person? Do you turn into a nominee of their estate?

If someone is the nominee of a person when he/she is alive, does that person remain a nominee if the other individual dies or does that person become the owner of the dead person's property?

Nina Whitehurst
Nina Whitehurst answered on Oct 17, 2019

If you are referring to the agent under a power of attorney, then the answer is no, the power of attorney automatically terminates upon the death of the principal. Also, agents under powers of attorney do not automatically inherit. Inheritance is determined by the decedent's will or, if the... Read more »

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2 Answers | Asked in Estate Planning and Probate for Virginia on
Q: If a parent had a child, outside of marriage, is that child due an inheritance if that parent dies in VA?

Grandparents passed with a will stating equal distribution among the surviving children. One of their children passed without a will. Sale of grandparents real estate to be divided among children of the recently deceased. Fathered a child outside of wedlock. Child was left out of listing of heirs... Read more »

James H. Wilson Jr.
James H. Wilson Jr. answered on Oct 10, 2019

This is a somewhat complicated issue which should be discussed with an experienced Virginia probate lawyer with the benefit of an illustration of the family tree. Generally, a child or descendant of a child, born out of wedlock, has the essentially the same rights as an heir as the other children... Read more »

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2 Answers | Asked in Estate Planning and Probate for Virginia on
Q: Need advice as administrator to will

My uncle passed with no will. My aunt and my mother are only surviving family . My aunt was the power of attorney before he died. After his death she sold property of the estate and gave other things away without consulting my mom. I became administrator of his estate. There is a house that is... Read more »

Richard Sternberg
Richard Sternberg answered on Sep 13, 2019

Your options as I see them without an interview are:

1) Accept that your aunt is stealing from the estate. As Administrator of the estate who failed to protect the estate, you are likely to be personally liable for her thefts.

2) Resign and report the thefts to the Court. Let is be...
Read more »

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1 Answer | Asked in Estate Planning and Elder Law for Virginia on
Q: Children want to distribute mother in laws personal items now. She is entering a long term care facility. Can they

She is 95, entering long term care. Deemed incapacitated. 3 daughters want to empty her apt and distribute her things now while she is still living.

Nina Whitehurst
Nina Whitehurst answered on Aug 7, 2019

If you have a power of attorney from her that allows you to make gifts, then you can do that. Please note, however, that gifting authority in powers of attorney is not common. Absent a power of attorney, one of you will need to petition the court to be appointed as conservator of her estate.

2 Answers | Asked in Estate Planning and Probate for Virginia on
Q: Don't agree w/ proposed property distribution of dead parent. What happens if don’t sign Receipt 4 Personal Property?

Estate attorney is pressuring me to sign. Other beneficiary (also the Executor) likes the proposed distribution, so I’m the holdout. Jurisdiction is Fairfax, VA.

Ross Cameron Hart
Ross Cameron Hart answered on Jul 28, 2019

Is there a specific issue? Have they responded to it? Is it what the will (or law) provides?

If you don't sign, then (1) you'll have to hire a lawyer to represent you when (2) the executor files in court to have the judge declare exactly what is to be paid to you. Your expenses: your...
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1 Answer | Asked in Probate and Estate Planning for Virginia on
Q: My spouse died without a will. He has 2 minor children with me and 1 minor child with another women.

Do I the spouse inherit his sole property and our joint property. Do i have to go to court to change everything to my name and close his accounts.

Ross Cameron Hart
Ross Cameron Hart answered on Jun 12, 2019

I'm sorry for your loss. You need to see an experienced probate lawyer quickly - there are several different ways this could turn out as to property in his sole name. Assuming the 'joint' property was with survivorship, then that is yours but there is some simple paperwork that may need to be... Read more »

1 Answer | Asked in Estate Planning and Probate for Virginia on
Q: Need help/guidance in estate claim/probate claim in VA.

Assistance with an estate situation that has in VA. Best of friends and also involved in formal business since 2007.

Brother is listed as executor of a will that was filed. The will is very vague drafted in 2009. It mentions nothing regarding our business relationships over the years.... Read more »

Richard Sternberg
Richard Sternberg answered on May 23, 2019

It is difficult to pursue a claim as small as $13,000 with a claim involving a declined probate. It isn't as simple as a General District Court case, because it needs to start with the opening of a probate and might lead to a contested and hostile petition for probate by you in spite of not being... Read more »

1 Answer | Asked in Estate Planning and Probate for Virginia on
Q: Can I challenge my fathers wife of less that 8 years on my fathers estate?

My father died by suicide on May 22nd 2018. He was living in Elk Creek at the time in Grayson County. At the time his wife of almost 8 years had been living in New York more than in Virginia with him. She was in Virginia when this happened. I would like to have become a co-executor of the estate... Read more »

F. Paul Maloof
F. Paul Maloof answered on Apr 15, 2019

Since you father died without a Will, the Virginia Code's provisions of Intestate Succession control the distribution of his estate. The Virginia Code's provisions for Intestate Succession are long and complicated. It would be best for you to hire a lawyer to provide you with a written opinion... Read more »

1 Answer | Asked in Estate Planning for Virginia on
Q: I live in a. and my brother died without a will. I need to become personal representative to open an estate checking acc

Estate is less than100,000

Live in Va. brother died in Hawaii.

Karen L. Rowell
Karen L. Rowell answered on Mar 11, 2019

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... Read more »

1 Answer | Asked in Estate Planning for Virginia on
Q: Can an executor of a will sell a house under his control for $1.00?

My brother-in-law was an abusive, substance-abusing man who was not involved in the first 20 years of his daughter’s life. Ten years ago, after being diagnosed with a terminal illness, he decided he wanted to be a ‘father’ to his daughter. He told his disabled daughter (unable to work due to... Read more »

Karen L. Rowell
Karen L. Rowell answered on Mar 11, 2019

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... Read more »

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