Probate

If a Last Will & Testament was not executed properly, it still may be deemed valid by the court. To be valid, the proponent of the Will needs to file a petition within 1 year of the decedent’s death and make all interested persons parties.

Note: There is a strict 1 year time limit from date of death so moving quickly is critical.  

Although a Last Will & Testament was not executed in accordance with § 64.2-403, the Will shall be treated as if it had been executed in compliance with § 64.2-403 if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute 

(i) the decedent's will, 

a partial or complete revocation of the will, 
an addition to or an alteration of the will, or 
(iv) a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will.

Generally, this remedy doesn’t excuse compliance with any requirement for the testator's signature, except in circumstances where two persons mistakenly sign each other's will, or a person signs the self-proving certificate to a will instead of signing the will itself.

In Virginia married persons have certain rights to the property of a deceased spouse. Even if the spouse was disinherited by a Will, Trust or gifts during lifetime, the spouse may be entitled to numerous spousal inheritance rights. Such rights include an (i) elective share, (ii) possession of the family residence, (iii) family allowance, (iv) exempt property allowance, and (v) homestead allowance. The following discussion concerns the aforementioned text discussed the forgoing spousal rights.  

Blended Families (a child or children from a prior marriage/ relationship)

A blended family is a family where one or more spouses, life partners, or significant others (hereinafter spouses) have a child or children from a previous relationship. Estate planning for a blended family can become very complex. Generally each spouse desires to provide for the surviving spouse upon their own death. However they also generally desire that their own children do not become disinherited.
That can be the tricky part. How do you provide for the surviving spouse and also ensure that your children do not become disinherited?

A child may be disinherited in a number of ways, including but not limited to the following:

• Intentionally (e.g., Surviving spouse creates a new will or trust and expressly disinherits them)
• Accidentally (e.g., Surviving spouse’s will or trust is declared invalid, or lost, and the state statute disinherits them. Most intestacy statutes exclude non-biological non-adopted children. Adopted children may be excluded in common law jurisdictions)
• Remarriage and Divorce (e.g., Surviving spouse remarries, then subsequently divorces, and the new spouse becomes entitled to your child’s inheritance via the equitable distribution of property during a divorce proceeding)
• Remarriage and Death (e.g., Surviving spouse remarries, then dies. Despite what is written in the will, trust, or contract, the new spouse may become entitled to your child’s inheritance via the elective share statute. The elective share refers to the right of a disinherited spouse to receive a portion of a deceased spouse’s estate.)
• Fraud (e.g., Surviving spouse’s mental faculty diminishes and your child’s inheritance is swindled by unscrupulous predatory persons.)
• Lawsuit (e.g., Surviving spouse gets sued and must use your child’s inheritance to pay the plaintiff and his attorney.)
• Government Seizure (e.g., Surviving spouse needs governmental benefits, such as Medicaid, and must spend down your children’s inheritance before receiving benefits.)

With proper planning, an estate planning attorney can work with blended families to develop a plan that provides for the surviving spouse and protects the deceased spouse’s children. Contact us today and let a knowledgeable estate planning professional go to work for you.
 

Authored by Luke Anthony Lenzi, Esquire