Legal Question in Wills and Trusts in Virginia

My father in law passed away a few months ago and there are 4 children left to divide the small estate one of the children has borrowed money from the father for the past 2 years and even had a loan that was co signed by the father that the father paid off in full. most of the loans are documented in a journal. can the money be held out for what he owes from the estate money to pay back these loans legally?


Asked on 5/25/10, 5:36 am

1 Answer from Attorneys

Jonathon Moseley Moseley & Associates Law Firm

First, watch out that you may be in Virginia but if the father in law is in a different State, then the laws of another State might govern the question. The laws of the State where he was a resdient at his death will control. I can only tell you about Virginia law.

It depends on what the father in law intended about the loan.

If it is clear that loan was really a loan, which the father in law wanted paid back, then the executor of his estate has a DUTY to collect all money owed to the estate in order to distribute it according to his will or standard inheritance rules.

Therefore, the executor (personal representative) * MUST * try to collect this money and treat it as an asset fo the estate before distrbuting the total assets to the heirs. He would have a duty to the other heirs.

This of course can be done by simply reducing the amount of money distributed to that child.

However, it can sometimes be unclear whether the intention was a real loan or a gift during the father-in-law's life. It needs to be clear exactly what was really going on.

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Answered on 5/25/10, 11:55 am


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