A person’s death is a difficult time for surviving members of the family. In the midst of dealing with the loss of a loved one, it falls upon the family to make funeral arrangements and decide how to handle the assets the person left behind. The probate litigation attorneys at the Hampton Roads Law Offices of John W. Lee, P.C., offer trusted advice and representation at this trying time. They take away the burden of probating a last will and testament or administering a trust, so family members can focus on the grieving process.
What is Probate in Virginia?
Probate is the process by which a deceased person’s estate is divided and distributed to his or her heirs or beneficiaries. This process is started by a qualified person being made the executor or administrator of the estate. In cases in which there is a will, this person is named to serve as the executor.
In Cases With No Will:
Any individual who is related to the decedent may petition the court to be the administrator of the estate. It is not uncommon that there may be more than one person who petitions to be the administrator. In those cases, the court must determine between the petitioning parties who should serve in that capacity.
The executor or administrator must provide to the court an accounting to list all of the assets which the decedent had at death and who the heirs or beneficiaries are. In a case where the decedent had a will, the executor makes distributions of the assets to the named beneficiaries and provides an account to the court as to what was distributed and to whom. In a case without a will, the administrator must distribute the assets to those individuals who would receive as heirs according to the Code of Virginia.
The administrator cannot make any distributions contrary to the code without written direction through a valid will prepared by the decedent. Sometimes the only way for the assets to be divided properly is to sell some of the assets and then divide the proceeds between the heirs and beneficiaries.
Also, an heir or other interested party may seek to challenge a will that has been presented through probate. It may be that the document is fraudulent or has been tampered with. It may also be that it was created by the decedent while under undue influence by another party. Such an action will seek to preserve the assets from waste or distribution until such time that the decedent’s wishes, if there were any, can be determined.
Help with Estate Administration
When residents of Newport News or Virginia Beach die leaving a last will and testament expressing their wishes for asset distribution and settling of their financial affairs, the will they leave behind must be submitted to the Circuit Court for probate. Probate is the process in Virginia that includes the following:
- Filing of the will with the clerk of the court
- Proving the authenticity of the document
- Authorizing the individual named in the document to act on behalf of the estate as the executor\
The estate of a person dying without leaving a will must also be submitted to the court. Instead of appointing an executor, the court appoints an estate administrator to handle estate affairs.
Probate and estate administration are commenced with the filing of petitions with the court. The petition is usually filed by a relative and begins the process of court oversight of the handling of the distribution of assets, payment of debts and taxes, and other essential matters carried out by executors, trustees and administrators.
Common Probate Issues Requiring Virginia Beach Legal Help
It is a common occurrence for family members to squabble and disagree over asset distribution or other provisions of the will left by their deceased relative. These arguments frequently result in one or more people contesting a will.
As a general rule, courts are reluctant to interfere with the wishes of a person as reflected in a last will and testament. Contesting a will in Hampton Roads or other parts of Virginia requires more than claiming the individual contesting it was treated unfairly. Some of the common grounds courts recognize for challenging a will are the following:
- Failure to comply with Virginia law as to preparation and execution: Wills must be signed by the testator, the person making the will, in the presence of two witnesses who do not have an interest in the estate. The witnesses must also sign the document. Testators must be at least 18 years of age.
- Lack of testamentary capacity: The testator must have been of sound mind at the time the will was signed. This means the individual possessed the ability to understand the nature of the document and its contents.
- Undue influence: If a caregiver, relative or other person in a position of trust to the testator exerted influence over the decisions about asset distribution or other provisions of the will, this could invalidate the will.
- Duress: Making and signing a will should be voluntary on the part of the testator. Threats or force to compel an individual to make a will or include particular provisions in it could invalidate the will. As with undue influence, duress requires proof that the challenged provisions do not reflect the wishes of the decedent.
- Fraud: Presenting a document to a person while concealing or misrepresenting the fact it is a will is an example of fraud. The validity of a will in Virginia requires a voluntary and knowing decision by a testator to create and sign the document.
Unless challengers to a will can establish undue influence, lack of testamentary capacity or other legal issue to invalidate the entire document or only certain portions of it, the courts attempt to carry out the last wishes of the testator.
The probate litigation attorneys at the Law Offices of John W. Lee, P.C., represent trust and estate representatives, heirs and beneficiaries of estates and trusts, and others with an interest in the estate of a decedent. They possess the legal knowledge of estates and trusts along with the courtroom skills and litigation experience to provide comprehensive probate and trust litigation services.
Probate Litigation Involving Title to a Given Asset
An executor or a trustee might require legal assistance and representation to resolve questions about title to a given asset. As a general rule, the following assets usually transfer without formal probate proceedings:
- Property held in a trust
- Life insurance policies with a designated beneficiary
- Retirement accounts with a designated beneficiary
- Real property owned by two or more people as joint tenants with rights of survivorship or by married couples as tenants by the entirety
Disputes could arise questioning the validity of the manner in which title to an asset was held at the time of the owner’s death. For example, it could be necessary to seek guidance from the court when it is discovered a couple holding title as tenants by the entirety was never married or was in the process of seeking a divorce when one spouse died.
Services a Probate Litigation Lawyer Offers
Probate litigation lawyers must possess a superior knowledge of estate and trust laws combined with an extensive background as seasoned litigators and trial attorneys. Among the services they offer to estate representatives, trustees, heirs and beneficiaries are the following:
- Instituting probate and administration proceedings
- Lawsuits regarding interests in an estate or trust
- Proceedings challenging the validity of wills and trusts
- Challenges to actions taken by estate representatives and trustees
- Lawsuits regarding title to a given asset
- Lawsuits request an accounting by trustees, executors and administrators
Chesapeake probate litigation attorneys ensure estates and trusts are administered in accordance with the law and in keeping with the wishes and intentions of the deceased.
Contact a Hampton Estate Litigation Lawyer Today
The attorneys at the Law Offices of John W. Lee, P.C., have the knowledge and experience in estate and trust matters to offer sound legal advice and outstanding representation whenever issues arise in connection with the death of a family member.
We have four convenient Hampton Roads locations in Virginia Beach, Hampton, Chesapeake and Newport News servicing the surrounding cities of Norfolk, Portsmouth, Suffolk, Smithfield, Poquoson and Williamsburg and the York, James City and Gloucester counties.
Find out more by calling them at (757) 896-0868 to schedule a free and confidential initial consultation.