Virginia Probate: What to Do if You Are Left Out of a Will

Sometimes people are left out of their family's will. This can create distrust and animosity among family members. Sometimes people are accidentally left out of the will. Other times, the family member intentionally decided to disinherit them. 

Either way, a disinherited family member may still be entitled to some compensation from the depending on when the will was drafted and whether the action was intentional or unintentional.

So who is entitled to receive compensation even if they are left out of the will, and how much are they entitled to?

Children Born After the Will's Creation

The first category of individuals that may be left out of a will are omitted children. This category is dedicated to children who are born after the will is executed. If the will does not explicitly waive the interests of children born after the will is created, then those children are entitled to a share of the estate’s assets.

An omitted child may be entitled to two different types of compensation depending on how the will is written. If there are other children who receive assets under the will, then the omitted child will likely be entitled to at least the same amount of compensation as those other children. If no child receives compensation under the will, then they are entitled to an equal share of the assets depending on how much is left after other claims.

Marriages After the Will is Written

It is not uncommon for a person who drafted a will to either marry or remarry after their will is created. If they do not update their will to reflect their new marriage, then there may be some problems. A new spouse, or an "omitted spouse," is entitled to receive compensation from an estate even if their name does not appear in the will. An omitted spouse is entitled to receive the same amount of money as if there had been no will.

Spouses Intentionally Left Out of a Will

Even if a person does not remarry after creating a will, and intentionally leaves nothing to their spouse, the spouse is entitled to compensation from the estate. This is known as an “elective share.” An elective share may be either a third or a half of an estate, depending on whether there are any surviving children or omitted children.

Why You Need a Lawyer

If your relative left you out of their will, either intentionally or unintentionally, it is important to have a lawyer walk you through your rights and how to request compensation from an estate. There are many different calculations that come into play depending on the type of heir you are, and when the will was written. If you have been left out of a will, seek out legal counsel as soon as possible.

Virginia Probate: Duties of an Executor

So you have been appointed to be an administrator or an executor of an estate. You probably have several questions of what your duties and responsibilities are. These are important questions to have answered, as failure to perform your job well may result in personal liability.

So what are your duties as an executor or administrator? Here is a partial list of those duties.

OPEN THE ESTATE

The first thing that needs to happen is to timely open the estate. Your first stop should be a local probate lawyer so you can have guidance for your particular case. However, the first court official to interact with is the probate clerk. You need to schedule a meeting with your local probate clerk and to get information related to what documentation is required to open the estate.

Common examples of required documentation include copies of the will and any accompanying documents and a certified death certificate. You need to bring these to the probate clerk where your family member last lived.

PROVIDE ACCOUNTINGS

After the case has been opened, you will have to provide the court with several accountings. These accountings are supposed to show the flow of money both into and out of the estate. For example, if there is cash sitting in a bank account, that must be accounted for. If that money is used to pay a creditor, that must also be accounted for and provided to the court.

You will have to file several accountings, at least once a year.

CREATE AN INVENTORY

If there is any personal property, that will need to be detailed on an inventory. This document will catalogue personal property such as jewelry, clothes, vehicles, tools, etc. The purpose of an inventory is to notify the court and various officials as to what property is available if something needs to be sold to satisfy a debt. It also allows the court to disburse that property if there is a specific bequest in the will.

RESPOND TO CREDITORS

Throughout a probate proceeding, creditors are likely to file proofs of claim detailing their claims to the estate. You may need to respond to these claims and hold hearings on the sufficiency of these claims.

WHY YOU NEED A LAWYER

A lawyer is important because you need to meet all of these obligations. Failure to do so may result in personal liability. Therefore, before you begin any of this work, consult a probate lawyer near you. Always keep in mind, you may not have to serve as an executor if you don't feel comfortable doing so.

ADDITIONAL RESOURCES

Virginia Bar Association's Guide to Probate Administration

Virginia Probate: Who is involved in the process?

Virginia probate is a complicated, lengthy process depending on the type of estate that you are dealing with. However, there are several people who will likely be involved throughout the probate process. If you have been appointed as administrator or executor, you need to be familiar with these people and their role.

So who are these people, and what do they do?

Commissioner of Accounts

The Commissioner of Accounts (“COA”) is an individual that is appointed to an estate to make sure that all the financial aspects of the estate are treated properly. The COA is typically an attorney, and the COA has significant power in probate proceedings. For example, the COA can demand inventories and accountings of an estate. The COA also has the ability to prolong proceedings and bring independent actions against an administrator or an executor if they have failed to properly perform their duties.

Therefore, It is important to listen to the COA when you are probating an estate. They can be an invaluable asset in getting the estate resolved. However, they can also be a powerful enemy if you have failed to properly perform your duties.

Probate Clerk

Each court in Virginia has a number of clerks. These clerks are there to make sure that the appropriate documentation is filed with the court in order for the case to start. There are several different types of clerks including land records clerks and probate clerks. A probate clerk’s job is to sit down with the person who intends to administer the estate and to explain what documents are necessary in order to begin.

It is important to work with the probate clerk in your local area to determine what local rules there may be. Failure to adhere to these rules may prolong the administration of the estate.

Creditors

An estate may also have several people that money is owed to. These are creditors. A creditor representative can file claims against an estate. It is important to work with the creditor representative to determine how much is owed on the debt and how that debt will be treated during probate.

Bonding Company

Sometimes, you may be required to post a bond if the will wasn’t properly drafted. A bond company may be involved in helping you post a bond with the court to cover the liability of probating the estate. It is important to work with your bond company representative to determine how much of a bond is required, and how that bond is treated.

Why you need a probate lawyer.

With all these moving parts, it is easy to get lost in probate proceedings. A lawyer can help you navigate interacting with these various representatives and to make sure you do your job properly. Failure to properly administer an estate could subject you to personal liability. If you are considering qualifying to probate an estate, seek legal help.

Virginia Estate Planning: Types of Trusts

If you have significant assets such as real estate or liquid capital, you may want to consider the estate planning tool know as a trust. A trust is an arrangement which you can create which allows you to transfer title of your assets and to plan for certain tax consequences of allowing those assets to go through probate. A trust is also an excellent way of avoiding conflict between your heirs over the meaning of a will, or how an estate will be settled by your executor.

However, there are many different types of trusts in Virginia, and it is important that you have a basic familiarity of these trust types to help you understand your lawyer’s advice.

Revocable v. Irrevocable Trust

A living trust is a type of trust that you create during your lifetime. There are two major types of living trusts; revocable and irrevocable trusts. With either type of trust, your assets are transferred into the ownership of the trust. Technically, you no longer own the property that is put in the trust.

The difference between the two trust types boils down to how much control you maintain over the trust after it is created. A revocable trust allows you to make changes to the trust during your lifetime. For example, if you decide you want to dismantle the trust.

In contrast, an irrevocable trust cannot be dismantled, and the property remains in the trust during your lifetime. There are several benefits to an irrevocable trust depending on the value of your estate and the likelihood that your heirs will contest how your estate is handled.

Subtypes of Trusts

These two major categories of trusts can be further split into various categories depending on why you create the trust, the type of property you put into the trust, and how much power you want to give to your heirs in the trust. Common examples of subtypes of trusts include;

1. Generation skipping trusts, which allow you to pass property from yourself to your grandchildren.

2. Land trusts, which allow land to be managed by your family.

3. Medicaid planning trusts, which allow you to put your property into a trust to allow you to qualify for medicaid if you have too many assets.

4. Special needs trusts, if you have a family member with mental health needs or other disabilities.

5. Spendthrift trusts, which allow you to limit the amount of money your heirs receive over a period of time if you are afraid they will spend all the money too quickly.

6. Charitable trusts, which allow you to leave money to a charitable organization of your choice.

7. QTIP, which is a type of trust that allows you to leave tax-incentivized assets to your spouse.

Why you need an estate planning lawyer.

As you can see, trusts are a very complicated area of law which require a significant amount of thought. There are many different types of trusts in Virginia, and the one that is right for you depends largely on why you want to create the trust and what the trust is to be used for. A lawyer can help you navigate these various types of trusts to determine which is best for you.

Virginia Probate: How Lawyers Avoid Probate

Probate is generally the process by which a deceased individual’s assets are transferred to their heirs. The vast majority of property that an individual owns will pass through probate unless it is a small estate. Property that passes through probate may be sold to satisfy creditors or to pay for administrative fees. This means that some of an individual’s property, even if it is intended for a specific heir, may not make it to that heir depending on how much debt that person has.

However, Virginia law allows you to avoid probate for certain types of property. How is this done, and how can a lawyer help you avoid the costs of probate?

Payable On Death Accounts

One common example of an estate planning method used by lawyers is known as a payable on death account. These types of accounts typically hold a specific amount of assets which are held for a specific beneficiary. These assets are immediately transferred upon death to that beneficiary. This means that the beneficiary will be considered to own that property without having to go through probate.

Some common examples of payable on death accounts include a bank account with cash, a safe deposit box, or event real estate.

Life Insurance

Another common method of estate planning available to lawyers is to set up life insurance accounts with specific beneficiaries. This allows an individual to invest their savings into a life insurance plan that will transfer money immediately upon their death to a designated beneficiary. There are several restrictions on how much can be placed in such accounts and what financial institutions qualify to offer these services.

Sharing Real Estate

Finally, another option used by lawyers is to have individuals hold property in a “joint tenancy” arrangement. A common example of this method is to transfer a portion of ownership in a house to a beneficiary with a “right of survivorship,” which means that upon death that beneficiary will own the entire house without having to go through the process of probate.

Why You Need a Probate Lawyer

Each of these options carry with them unique tax and medical planning issues that need to thoroughly be addressed. Every person’s case is unique, and a combination of these plans may be needed to minimize the amount of taxes that are paid and to preserve the property. It is also important to hire a lawyer to understand when not to use these estate planning tools, as creditors may attack your transfers as an attempt to avoid their claims. Hire a lawyer to help you prepare your estate and to protect your heirs.