Virginia Probate Questions & Answers

Q: Friend on unsupervised probation, received a reckless on 80mph. Jail time or no?

2 Answers | Asked in Criminal Law and Probate for Virginia on
Answered on Mar 23, 2019
Daniel P Leavitt's answer
You cannot get reckless driving for driving 80 mph unless it was in a 60 mph zone. We practice regularly along the NC/VA border for interstate 95 and 85 and those are 70 mph zones.

Jail time depends on what court the case is in, and the speed cited if it is reckless by speed. However, you have not provided adequate details as 80 mph is not reckless unless it is in a 60 zone and the area you described would not normally be in that speed zone unless it was on highway 58 which has a 55...

Q: This lawyer also doesn’t do any of the work like second lawyer said he works for a law firm that has lots of offices

1 Answer | Asked in Probate for Virginia on
Answered on Mar 14, 2019
Richard Sternberg's answer
If you have doubts about the handling of the estate, you need to consult with an experienced lawyer. An Internet website cannot review the bills, investigate the services, and evaluate the costs and benefits of challenging the fees or the distribution of assets. If you are asking whether you can get such a review, of course, you can as long as you have an interest in the estate. If the review reveals irregularities, you might be able to raise the issues pro se to the commissioner of accounts to...

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: 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...

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