Legal Question in Wills and Trusts in Virginia

Cemetery Burial Plots as Real Estate?

A deceased mother Willed all her tangible, intangible and personal property equally to her children with one exception. That exception was that all interests in real estate owned by her was willed to only one surviving child. The only property owned by the deceased mother was her primary residence and several cemetery plots. My question relates to cemetery burial plots that were owned by the deceased. Are these cemetery burial plots considered ''real estate'' and therefore should be transferred to that same one child, rather than equally split between her surviving children?

Thank you, in advance for your reply.

Asked on 6/19/04, 6:25 pm

1 Answer from Attorneys

Jonathon Moseley Moseley Legal Associates LLP

Re: Cemetery Burial Plots as Real Estate?

As a general proposition, sure, a cemetery plot is of course real estate. It is physical land, no matter how small, and is more real estate than some other border-line concepts. However, in my opinion that does NOT resolve the question. The plain meaning of words has a very strong weight in wills, especially in Virginia. Rules of law (including the legal definition of real estate) govern wills ONLY when a clear intention cannot be found in the will itself. So if one is left scratching one's head, then rules of law (like the definition of real estate under the law) become the fall-back position. So, it is first the actual intention and plan of the decedent that governs and then only second standard, off-the-shelf rules of law and legal definitions that fills in the gaps where we are not sure of what the decedent actually meant.

Since most people would not THINK of a burial plot in the same category as real estate, but would instead consider it as a cost of living (or the end of living), the question is what the decedent actually intended. Any will or trust is governed 100% by the intent of the decedent (testator) or donor (grantor of a trust). (Rules of law come into play only when the intent is not clear.) So the question must really be answered based upon the exact wording of the will, the overall plan that the will demonstrates, the exact wording of the provisions, and the context. The #1, #2, and #3 job of the executor is to come to the best possible understanding of what the decedent ACTUALLY intended (rather than looking to technicalities). So the question is whether the decedent intended for the one child to have the burial plot. When the decedent wrote that real estate goes to that child, did the decedent INTEND for that to include the burial plot? For example, are similar items given to someone else? Does the overall plan of the will demonstrate an intent to primarily provide for that child? Does the will give similar items of general living (and such) to that child or to others? Is there anyone else whom the decedent would logically have wanted to give the burial plot to? So, you should consider ALL of these factors, not merely the technical meaning of real estate as a matter of law. If there is no clear indication that someone else should get the burial plot, then one would be safe ruling on the legal definition of real estate alone. But the first and strongest obligation is to try to figure out what the decedent ACTUALLY intended, rather than simply relying on the legal definition of real estate alone.

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Answered on 6/25/04, 8:35 am

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