BENEFICIARIES, SURVIVING SPOUSES AND HEIRS

Excerpts from "So Virginia, you have been cut out of a Will"

By Paul A. Prados January 28, 2011 

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 . . .

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:  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.  Most of these rights provide benefits to the surviving spouse even if the deceased was in substantial debt.  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.

For surviving children under the age of 18:  Some of the statutory rights available to surviving spouses are available to minor children of the deceased.  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.

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). 

​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.

FIDUCIARY REPRESENTATION


All estates and trusts in Virginia must have a fiduciary, a person responsible for administration of the estate or trust.  Whether referred to as an Administrator, a Personal Representative, an Executor, or a Trustee, the fiduciary is responsible for identifying and gathering property and money, accounting for those assets, and defending the estate or trust from creditors and other litigation, and complying with the terms of distribution.  


Most estates require little more than routine inventories and accountings.  Occasionally an estate will face significant adversity in the form of a will challenge, untrusting beneficiaries, or an aggressive creditor.  Over nine years I have developed a substantial portion of my practice to address these adversarial claims.

TRUST AND ESTATE LITIGATION

Commercial, Property, and Estate Litigation