In the initial installment of this series, we discussed what happens when “Life Happens” during one’s lifetime. This blog looks at potential fixes when “Life Happens” events intersect with a Will after the death of a loved one.
Is Estate Administration Necessary?
Virginia law offers a few ways to administer a decedent’s estate outside of the formal probate process. Namely, if the value of the non-real estate assets owned in the decedent’s name alone are no more than $50,000, then the formal probate process is not required; an alternate process is available. Although formal oversight does not occur under the informal small estate process, the individuals administering the estate using this process are obligated to pay the decedent’s debts, expenses, and statutory obligations prior to making distributions to beneficiaries. The small estate process is meant to avoid fiduciary responsibilities, instead it requires them to act under an honor system.
No Will or Plan In Place
Without a Will, the decedent’s Estate is inherited according to Virginia’s intestate (intestate = has no Will) succession rules, which specifies the order in which classes of blood relatives inherit. As the decedent exhales her last breath, ownership of the real estate automatically “vests” in the heirs according to the order of intestate succession. The person who qualifies on the estate, if any, is called an Administrator. Absent Court order, the Administrator has no power to sell or otherwise control the real estate, instead, the Administrator administers the non-real estate assets and may, under certain circumstances, be required to request Court permission to administer the real estate.
An Existing Plan is Insufficient, Inadequate, or Outdated
If the original Will is missing, but a copy exists, it may be possible to petition the Court to have a copy of the Will admitted to probate in the place of the original. Because a Will can be revoked by destroying it, the person who wants the copy to be accepted as valid must offer sufficient proof that the Will was misplaced and not revoked, and that the copy accurately reflects the testator’s true wishes.
If the Will contains ambiguous language or if a beneficiary is not adequately identified (was niece Sue supposed to be cousin Sue?), then the Executor may need to petition for the Circuit Court’s aid and direction to interpret the uncertain provisions. All interested parties will need to be notified so they may make their case for their preferred interpretation.
If the Executor named in the Will has died or is unable or unwilling to serve and no successor is named, then the beneficiaries may be able to nominate a successor who can then administer the assets in accordance with the governing document.
If a Will beneficiary cannot be located, then the proceeds may be paid into the clerk of the circuit court that has jurisdiction.
If the Will does not contain protective language for a beneficiary with disabilities, then depending on the amount and whether or not the inheritance would jeopardize the beneficiary’s needs-based benefits, the inheritance may be able to be held in a protective arrangement with the clerk or court or by another means; the Court may be able to reform the Will or Trust to include protective language; or the appointment of a conservator may be necessary to receive and manage the money and/or set up a Special Needs Trust on behalf of the individual with the disability. If the beneficiary’s disability is because she is a minor, then a guardian of the minor’s estate may need to be appointed to manage the inheritance until the minor turns 18 years old and can receive her interest in the money or real estate outright.
“May” is used often throughout this article. That is intentional because the smallest change in facts can make a tremendous difference in outcome. Although no lawyer can guarantee that you will be able to achieve the results you want when there is no plan in place or when the plan is insufficient, inadequate, or outdated, you may have options. Please call Promise Law or contact us here for an appointment to discuss your specific situation.
Life Happens. Plan on It.™
