Virginia Probate Questions & Answers

Q: My father was California Resident and died in 2010. He had a Will which poured over into a trust thus avoiding probate.

1 Answer | Asked in Probate for Virginia on
Answered on Dec 28, 2018
Ben F Meek III's answer
Typically, probate is required to pass title to real estate of a person who died as the sole owner. If the "pour-over" will was probated, in California, a probate in Virginia would be considered ancillary. Either way, the will probated in Virginia would transfer title to the property into the Trust from which it can then be sold. Alternatively, the property could be sold from within the probate proceeding and the proceeds of the sale then distributed into the Trust. Whether there is any...

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: 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: What elements are required for summons of heir publication.

1 Answer | Asked in Probate for Virginia on
Answered on Aug 15, 2018
Richard Sternberg's answer
If you are going to do it yourself, the smartest thing is to do it the way lawyers do it: Open the Code and do exactly what it says. The Code is published on-line, and all I'd be doing is cutting and pasting it into this response.

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: Which law will govern the probate of a will if I am the spouse and the will is being challenged by a "girlfriend"?

1 Answer | Asked in Probate for Virginia on
Answered on Jul 25, 2018
Richard Sternberg's answer
The law of the jurisdiction where the decedent resides at the time of their death will be applied to determine the validity of the Will. In some cases, if the Will was created while the decedent resides elsewhere, that law will apply.

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: Can landlord keep next of kin off property after a death for next of kin to appraise property?

2 Answers | Asked in Landlord - Tenant and Probate for Virginia on
Answered on Jun 19, 2018
F. Paul Maloof's answer
If she refuses to allow you in the property to have an appraisal performed, you will need to get a court order that requires her to let you on the property.

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: 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: My mother passed away in January, she was married to my stepfather. My mother gave me the title to her mother's mobel

1 Answer | Asked in Probate for Virginia on
Answered on Apr 21, 2018
Richard Sternberg's answer
A mobile home usually includes both the home and a piece of real estate on which it sits. If you have proper title to both, then I would ask your step-father what rights he believes he has as to your home. Otherwise, you need to confer with counsel to explain what you own and what rights you might have.

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

Q: Force sale of inherited property?

1 Answer | Asked in Real Estate Law and Probate for Virginia on
Answered on Apr 2, 2018
Richard Sternberg's answer
Yes. The action is called a Petition for Sale in Lieu of Partition. The elements require that the property not be severable. A house isn't severable. Five Hundred acres of farmland is. An apartment building might be. The other element is that one of the owners wishes to sell. There are few defenses, and, in Virginia, the legal fees can be charged to the costs of the sale by statute. Most attorneys do want some of the funds up front. It's a fairly easy petition, but it is far less likely to be...

Q: My mother had a living trust and i have been trustee since her incapacity in 2014 and I am the sole heir.

1 Answer | Asked in Estate Planning and Probate for Virginia on
Answered on Mar 14, 2018
Richard Sternberg's answer
A Will is not self-effectuating. The Will is "accepted into Probate" before it becomes effective. So, for the Will to be acted upon, a personal representative (executor) needs to be appointed, and that executor does as the Will commands. Thus, the property did not become a part of the trust until the executor transferred it there. Under Virginia law, however, real property transfers conditionally on death independent of probate, but your lawyer can explain why that did not apply in the facts of...

Q: I inherited property in NC when my father died in 2005. I live in VA. I need to have my name placed on that deed.

1 Answer | Asked in Real Estate Law and Probate for Virginia on
Answered on Mar 6, 2018
Richard Sternberg's answer
If all owners agree as to ownership, there is usually no need to conform the title before sale. Unless the title is so damaged that a claim to quiet title is required, all three of you should sign a listing agreement to put the property on the market, and the title agent will correct title at the closing. You'll have an advantage that, IIRC, NC still requires title to be closed by a licensed lawyer, so he or she will have a better grasp on what needs to be done to deliver good title. But, to be...

Q: Gfather passed on 01/10/17. Uncle left as executor. Nothing done since his death. What should have been done already?

1 Answer | Asked in Probate for Virginia on
Answered on Mar 3, 2018
Richard Sternberg's answer
Petition to remove the executor for self-dealing. But, it would be best to know what you are talking about and use counsel, because courts disfavor should petitions, especially by pro se parties.

Q: My sister usurped my authority of Executor of my mother's estate. She refuses to give me any receipts. What should I do?

1 Answer | Asked in Estate Planning and Probate for Virginia on
Answered on Mar 2, 2018
Richard Sternberg's answer
If you are the Executor, you are blatantly incompetent and need to be removed or get advice on how to do your job better. Why is the estate's money in an account that anyone other than the court-appointed executor can access? Is it still in the decedent's name, and the bank hasn't been told that the account holder is dead? That could be criminal. Why, as executor, haven't you properly brought these thefts to the attention of the Commissioner or the Courts? That is your responsibility. Have you...

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