Friday, January 28, 2011

So Virginia, you have been cut out of a Will . . .

So your spouse or parent has passed away with a last known home address inside the Commonwealth of Virginia.  You know there is plenty of real estate, a large amount of money, and a life insurance policy.  But there is a Will, and your name just happens to be missing (or worse the deceased specifically wrote that you were disinherited).  You could run to the courthouse and sue without an attorney, or with an attorney who has never filed a similar lawsuit, you could beg the other survivors for scraps, you could give up, OR

*you could become informed about your potential rights and consult an attorney able to explain those rights before acting.*

The following are common occurrences in which you may have additional rights.

For nearly everyone: There are multiple grounds upon which a Will can be challenged due to undue influence, fraud, or improper execution.  The deceased may not have understood what he was signing.  The Will may have been obtained with the assistance of a caretaker, who is also the primary beneficiary.  The Will may not have been signed with the proper number of witnesses, or without all witnesses present.  If a family member who had a good relationship with the deceased has been cut out of the Will, this is a good indication one of the other factors listed above applies.  Bring your facts to an attorney.  In most instances there is no legitimate basis to challenge the Will, but an attorney can help determine if there is or is not a case.  Will challenges, also often called Will contests, are usually long, expensive, and difficult to win.  

For surviving spouses:  Good news!  The Virginia General Assembly saw fit to protect the rights of surviving spouses against complete disinheritance through written laws called statutes.  These statutory rights provide for access to housing, personal possessions, some measure of support, and a percentage of the whole Estate of the deceased.  Better news!  Most of these rights provide benefits to the surviving spouse even if the deceased was in substantial debt.  Best news! If requested and pursued properly, and within the right time frame, these rights are virtually guaranteed.  These rights often apply, even if the surviving spouse and the deceased were legally separated.  A description and some details of these statutory rights will be the subject of a later post. 

For surviving children under the age of 18:  Good news, better news and best news!  Some of the statutory rights available to surviving spouses are available to minor children of the deceased.  Bad news.  It is difficult for a child to pursue these rights without the assistance of an intelligent and patient adult, and the major benefit available to the surviving spouse, a percentage share of the Estate, is not available to the child.  This is an instance in which pursuing these rights without an attorney is technically impossible if a court appearance is involved.

For surviving children of all ages that were not specifically disinherited:  You likely have a right to receive an equal amount to what your siblings received.

Trusts:  Trusts are private agreements, that are regulated by the Commonwealth of Virginia.  There are many similarities between challenging a Trust document and challenging a Will.  Nonetheless, Trusts are complicated enough to warrant their own separate post at a later date.

Special situations:  Real estate will be distributed as stated on the deed to the property.  If there is nothing on the deed, then it will be distributed pursuant to the Will.  Under Virginia law, Real Estate technically does not go through probate, although there is a major exception (and other minor ones).  If the debts of the deceased exceed the remaining value of the Estate, the real estate can be sold to pay those debts.  An improperly procured deed can be challenged.  The complexity of such a challenge is similar to that of a Will challenge.  Life insurance is paid to the beneficiary under the policy.  Life insurance is a contract between the insurance company and the person who purchased the policy.  It is not governed by the Will or Virginia laws of distribution unless there is no surviving named beneficiary under the insurance contract. 

For all others:  If you have not seen your situation listed above, it does not mean you have no rights.  You may have an even less common situation that still grants special status.  Also keep in mind this post only applies in instances in which there is a signed will.

FINAL WARNING: In most litigation you may have years to file a case or perform some act to preserve your rights.  In Trust and Estate litigation in Virginia rights expire very quickly often in a matter of months (in one specific instance 30 days).  Speak with an attorney to determine your rights, there are few second chances.

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