How Do Wills Get Probated in Virginia?

The county in which the decedent passed away is the primary place that the paperwork will be filed to probate a will. The probate process is handled by the circuit court in that county.

Probate is typically required in Virginia when the estate’s assets total more than $5,000, so streamline procedures might be available for those with small estates. The first step in probating a Virginia estate is to contact the circuit court clerk in the appropriate county and schedule an appointment to meet him or her.

A certified copy of the death certificate and the original will should be brought with these. The second step is to take an oath of office as an executor of an estate and post a bond. The bond has to equal the value of the estate to ensure against any wrongdoing if the executor is not the only beneficiary in the will.

The third step is to send written notice to all heirs and beneficiaries and then to secure the testator’s property and gather all assets. The next stage of the process is to determine who the testator owed money to and making those payments prior to distributing the remaining assets to beneficiaries of that will.

Some executors might find this process overwhelming, especially if they were also closed to the deceased. Going through grief and the formal steps of estate administration is a tall order for anyone. It’s one of the reasons why many executors choose to partner with an attorney to help guide them through the process. If you’re just now naming your executor, make sure you consider the person’s interest and ability in serving in such a role. Your Virginia Beach estate planning lawyer can help.

Can I Use A No Contest Clause in My Will?

It’s a good idea to think about who you want to include and potentially who you want to exclude in your estate planning process. If you are concerned that someone might challenge the validity of your will in court after you pass away, you might be interested in speaking with your Virginia estate planning lawyer about adding a no contest clause to your document.

A no contest clause in a Virginia Beach willl simply states that if a beneficiary under a will or trust challenges the validity of that document that party forfeits his or her rights to take under the trust or the will. According to Virginia law, no contest clauses are strictly construed and strictly enforced. This means that the courts do not interpret them to be any broader than their terms provide but that they are strictly enforced even if numerous people are caused to forfeit their inheritances as a result.

In the event, that a party challenges a trust or a will that includes a no contest clause in Virginia Beach and is successful in that challenge, the court then declares that document to be invalid and of no effect. Any party who is thinking about challenging a will or trust with a no contest clause inside must carefully consider the important choice here.

Not taking any action and taking an estate plan that they believe to have been created due to a lack of testamentary capacity, undue influence, duress or fraud or risk challenging the will and potentially lose the inheritance if the challenge is unsuccessful. Including a no contest clause can give you piece of mind in your planning. Find a Virginia Beach estate planning attorney who knows how to help you with your will and other key estate documents today.


How Do I Know If My Virginia Will is Valid?

Certain requirements must be met in every single state for a will to be valid. The following issues should always be taken into consideration when creating your Virginia will, since wills are the most common way for a Virginia resident to take control of how the state manages their assets when the will creator passes away.

Your will becomes a binding legal document that is effective on your death and it determines who will care for your minor children, who will inherit your property and who will be the executor of your Virginia estate. The primary purpose of your will is to assist with the distribution of property upon your death. There are four primary requirements to make a valid will in Virginia. These include:

  • Mental capacity
  • Age requirement
  • Writing requirement
  • Witness requirement

The most important aspect of creating a will is that you must be mentally competent at the time, meaning that you should not create or sign a will if you are of unsound mind due to sickness, age or any other issue. You must be greater than 18 years old to make a will in Virginia and your will must be witnessed by at least two other parties when you sign it.

Furthermore, no will in the Commonwealth of Virginia is valid unless it is in writing and signed by the person who created it or by some person under the testator’s direction and in his or her presence at the time. The will could still be valid if it is in the testator’s handwriting and is dated and signed even if no witnesses saw the original document.



What Are the Rights of Interested Parties in A Virginia Estate?

Interested individuals is a term that is used to describe the heirs to an estate or the people who have been formally named in a last will and testament as outlined under Virginia law. There are many different common misconceptions associated with interested parties.

One of these includes if an individual is an heir then they are scheduled to inherit from the estate. A person can be named as an heir, but a trust or a will could supersede the passage of any assets going to that individual.

Anyone who is classified as an interested party in a Virginia estate must be kept informed of court required notices and should be notified when a person has been appointed to serve as an executor. A knowledgeable Virginia estate planning attorney can assist an interested person in understanding their role. Just because someone meets the grounds for being classified as an interested person doesn’t mean that they will officially be a beneficiary of the estate. This also does not mean that you are required to be kept informed of all of the details of what is going on with the estate and the assets inside of it.

The person is only entitled to receive notices in accordance with Virginia laws when that notice is required. If you have questions about setting up your estate planning for your future heirs, schedule a consultation today with an experienced estate planning lawyer.  



Does a New Virginia Resident Need to Update Their Wills?

Welcome to the Commonwealth of Virginia. This is a wonderful and beautiful place to live and it’s easy to get caught up in the hubbub of moving and forget some of the most important aspects of your personal life that should be handled properly as soon as you wind up in Virginia.

You’ll need to sign your lease or store the deed ownership documents for your new home and consider updating your vehicle’s registration, your car insurance, permanent address and your driver’s license. But don’t neglect some of the most important things that need to be updated when you relocate to the Commonwealth of Virginia. Federal tax laws remain the same, meaning that some aspects of your estate plan might not be affected at all. However, there are substantial differences in the laws from one state to another.

Unintended consequences and unexpected expenses can often occur when estate planning documents that were specifically created for another state are used in another. Certain states across the country have their own state’s estate tax, for example.

If your estate plan was created in accordance with that and you have recently relocated to Virginia, scheduling a consultation with a competent estate planning attorney can help to verify that your estate planning documents are updated with proper addresses and other critical details.



Are There Any Problems with Having Multiple Versions of a Will in Virginia?

Estate planning that transfers into estate administration and probate can be especially complicated in cases involving multiple wills. Many area residents have taken the time to draft a will, because these estate planning documents serve as an important way to determine how assets are distributed after the creator passes away. Multiple wills can be a shock for a family, however, especially when they are discovered by different people in Virginia.

No matter where you live in Hampton Roads, you should understand the importance of keeping their planning documents updated throughout the course of their life, such as with a new marriage, the birth of a grandchild, or a divorce.

Virginia wills can also be updated to alter the recipients of certain assets, so it is not unheard of to have multiple versions of a will.

However, the issue, as far as probate administration when it comes to multiple wills, is that the testator might not have all their assets distributed according to their individual wishes. It is the court’s responsibility to analyze these various versions of a will and to determine the most recent version for distribution of assets. Anyone who has multiple versions of a will should destroy the previous versions to eliminate the possibility of confusion on their death. A will contest can still be raised by an applicable family member when multiple wills are in existence.

These issues can occur within a family due to claims of undue influence, fraud or other valid reasons. This can be an emotional time that causes further family conflicts and problems. Scheduling a consultation with an experienced estate planning attorney about your Hampton Roads will is important for moving forward with your next steps.

What You Need to Know When A Sibling Contests A Parent’s Will

It goes without saying that the death of a parent is one of the most complicated times in your life, and this loss can lead to significant riffs among siblings. Unfortunately, the distribution of assets can be one reason that causes conflict between you and your siblings.

Can You Contest a Will for Any Reason?

You need to understand the grounds of a will and what it means to challenge the validity of this document. If a sibling believes that there are reasons to classify the will as invalid, he or she can initiate a will contest.

A last will is a legal document that cannot be easily overturned without significant proof indicating that there are reasons to invalidate the will. This means that just because your sibling contests the will doesn’t mean he or she will be successful. Furthermore, contesting a will is time consuming and expensive, and it might just take your sibling meeting with a probate dispute lawyer to understand the stakes involved to make another decision.

Who Can Contest a Will?

Wills can only be contested by children, spouses or people who are mentioned in the will or a previous version of the will. When any one of these individuals notifies the court of a will contest, the official legal procedure will begin.

A sibling or anyone else cannot have the will overturned or thrown out simply because he or she believes it’s unfair, they’re mad at you personally, because the parent verbally stated they would do something different, or because they feel left out. If there is a valid legal question about the legality of the will, this is the only time that a sibling is able to challenge the process under which the will was created or the document itself.

A last will and testament is assumed to be valid by the probate court, so long as it is submitted in the proper format and has no will contest associated with it. You may need to retain your own probate dispute attorney if you have to fight back against a sibling who is arguing that the will is invalid.

Need help with your estate planning? Talk to a Virginia estate planning attorney now.

What to Do If You Want to Exclude a Child from The Will

Having the estate planning process nailed down with the support of an experienced attorney, you might have questions that you are uncomfortable bringing up with your lawyer. One such question includes whether or not it makes sense to exclude a particular child from your will.
While the vast majority of estate plans give all of the assets to the spouse and then to the children, not every plan has to follow this type of testamentary distribution trend. If you wish to exclude a child or some other relative from your will, you are certainly free to do so. While it might go against the norm of what most people are doing with their estate planning, it doesn’t mean that it’s appropriate or wrong in your particular situation.
It simply means that you are recognizing a unique family dynamic and deciding that passing things on equally is the right thing to do. Deciding to exclude someone from your will could increase the chances of a will contest or a will challenge down the road. Having your documents properly drafted with the support of an experienced attorney can greatly decrease the chances that someone will be eligible to bring forward a will contest years into the future.
However, this is why you want to work only with an experienced and dedicated lawyer who has an understanding of your unique situation and can help to advise you of ways to avoid common missteps and problems. These problems could eventually turn into significant issues down the road when your loved ones, whom you intended to receive material are faced with a delayed probate proceeding because someone initiated a will challenge. Consulting with a lawyer helps to decrease the chances of these issues and empowers you with the chance to ask many of your questions about the estate planning process in general.     

When Is Your Living Trust Better Than a Will?

Do you only have a handful of documents set up for estate planning purposes? If so, you’re like most people who don’t realize that your will probably doesn’t go far enough to protect your interests. Having a living trust is a great way to incorporate additional planning opportunities into your big picture to ensure that you’ve considered the whole scope of everything. 
In some situations, a living trust is a better place to incorporate these estate planning concerns. Talking a lawyer begins this conversation and ensures that you’ve considered all the factors that belong in your ultimate trust. Once your lawyer has reviewed what you hope to accomplish, you’ll be in a better place to move forward with your entire estate plan.
A living should be a cornerstone of your estate planning toolkit if you fall into any of the following categories:

  • You have a surviving spouse
  • You are a senior with significant assets
  • You have a family to support even after you pass away

There is good chance that you might already have considered the basic benefits of having a will but a will is not enough if you need to accomplish these additional goals. A living trust or revocable trust many be a better tool instead. Living trusts were created specifically to fix the issues that are often tied to a traditional will.
The first thing that makes a revocable trust different from other types of trust is that it can be changed or dissolved base on the wishes of the person who created it. Rather than having your estate go through the process of probate, wherein the court has temporary possession of all of the assets inside, you can use a living trust to ensure a smooth and seamless transition of these assets.
You might be concerned that your final wishes surrounding property won’t be honored with a living trust. However, a trust is stricter than a will when it comes to ensuring that appropriate requirements are met. A trust can also handle more specific concerns that you wish to be carried out on a regular basis.
Another benefit of a living trust is you can establish your inheritor trustee as your power of attorney. To put together a living trust, you will want to first discuss this opportunity with the help of an experienced estate planning lawyer.

Use Your Will to Ensure That Your Wishes Are Followed

When facing the death of a loved one, the last thing any family members want to worry about is dealing with an estate and going through probate. If you don’t have a plan in place, then your individual state and the court system comes up with a plan for you. 
Your property will eventually go to someone, but without an estate plan and a proper will in place, the court is responsible for determining what’s best for that property, not you. This means that the property handed down legally through the court’s determination may not go to who you want. Your beneficiaries can be named inside an estate plan. A will also allows you to put together the name of a guardian for your minor children and the executor of your estate. The guardian can be one of the most crucial decisions you make legally if something were to happen to you and your spouse.
If you have no will but all of your assets have the beneficiary designation enlisted on them, the fact that you don’t have a will won’t have any impact on your property, but this relates primarily to assets such as your retirement plan and life insurance policies where you’ll need to establish your beneficiaries separately.