Legal Question in Wills and Trusts in Virginia

Estate Settlement

My Mother died May 2004. She left a house in Virgina thats worth about $250,000. She has no Will, I have 3 siblings that I have to settle the estate with. We don't get along, My sister has decided to move into the house,without the consent of any of us..How do I get the Estate settled, and can I force the sale of the property, and just split the profit amongst my siblings

Asked on 9/14/04, 2:31 pm

3 Answers from Attorneys

Jonathon Moseley Jonathon A. Moseley

Re: Estate Settlement

My colleagues have given you good information, but I will add some things.

The one who has authority over ALL of your mother's belongings is the executor of her estate(also called a personal representative). The problem is that right now her estate does not have any executor. So there is no one who is officially authorized to control the property and make all of these decisions.

Thre is no way around this, whether it is to your advantage or disadvantage. There must be an executor/personal representative appointed.

None of your mother's property can be sold or distributed without the executor doing it. Nothing is valid unless it is done by the executor. (So, for example, your sister cannot just move in to the house because she wants to. Technically, she is trespassing without the permission of the executor. But there is no executor, again.)

Because your mother did not have a will, there is no clear choice. The Court will have to choose an executor. Your siblings can challenge any nomination and try to persuade the court why they should be the executor. (The person has to live in Virginia or else have an agent in Virginia under certain rules.)

Furthermore, there is a lot of work that the executor has to do before we can even get to this point. All of your mother's creditors must be notified. Notices must be published inviting anyone with a valid debt to come forward and make a claim. Anyone with valid, legitimate debts of your mother must be paid off first, including selling any of your mother's property if necessary to pay her debts.

A lot of paperwork has to be filed with the Circuit Court. Actually, see if your County has a "Commissioner of Accounts" who will tell you what you need to do. Also, if you report the estate to them, and tell them it is not being handled properly, the Commissioner of the Accounts will probably make demands for the filing of inventories and reports.

Only after all of your mother's debts are paid off can you even start to consider who gets what among her heirs.

Because your mother had no will, standard "off the shelf" rules will apply. It sounds as if your father is no longer alive or you would have mentioned him. If her husband is not alive (or if he divorced), all of your mother's belongings would be divided EQUALLY among the children. That means that your sister would have to BUY your share of the house in order to keep it. Otherwise the house would be sold and the money divided among the children.

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Answered on 9/14/04, 9:43 pm
Thomas Dunlap Dunlap, Grubb & Weaver, PLLC

Re: Estate Settlement

The best thing to do regardless of whether there is a dispute is to probate the estate with the local probate court. You can contact them directly to assist you with this matter - it must be the county court in which the decedent last resided. They will insure that the proper executor is established and can sign off on distributions to help insure against litigation in the future. Please contact us directly at 703-777-7319 for additional information. Thank you.

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Answered on 9/14/04, 3:29 pm
Michael Hendrickson Law Office Michael E. Hendrickson

Re: Estate Settlement

You as one of the siblings and presumed heirs of your mother's estate can go to the circuit court

in the city or county where she last resided and make application to be appointed the administrator of your mother's estate. The clerk of the probate division should be able to advise you as to what and how to file the appropriate papers and what procedures are to be followed.(There may also be a brochure or booklet available advising you as to how to fullfill your fiduciary duties in this matter.)

You will have up to 14 months to collect and inventory the various assets of your mother's, estate and make the required distributions and file the necessary reports with the local Commissioner of Accounts.

A final order or decree of probate will then issue from the court in effect confirming the actions which you've taken (assuming they are correct and appropriate).

When the probate process if finally complete and each of the siblings has received his/her due share of the property, you will then be in a position to initiate your equitable suit in the circuit court in the jurisdiction where the property is located to have the property partitioned, and, if necesaary, have the court order the property sold and the proceeds of the sale divided among the heirs.(The foregoing assumes, naturally, that no agreement can be worked out among the heirs as to how the property should be used or disposed of.)

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Answered on 9/14/04, 3:59 pm

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