Month: July 2018

Can I Contest a Will in Virginia?

In the Commonwealth of Virginia, only interested parties can contest a will.  An interested party is an individual that has standing to challenge the estate and is usually someone who is entitled to receive property under the will.  It could also be someone who has a legal right to part of the estate, such as a spouse or someone who would be entitled to property under the laws of intestacy if the will were invalidated.  Simply being related to the decedent does not necessarily make you an interested party. Contesting a will is usually done to invalidate a portion or portions of a will presented at probate.  It can also be done to introduce another will that is believed to be the last will and testament of the decedent.

What makes a will valid under Virginia law?

Under Virginia law, the court honors only those wills considered valid.  If there is suspicion of fraud or a reason to believe that the decedent was not of sound mind or was pressured by others when drafting the document, the heirs may challenge the will in court. To create a legally valid will in Virginia you must satisfy the following 3 requirements:
  • Age:  You must be at least 18 years old.
  • Testamentary Capacity:  You must be generally of sound mind and understand the nature and extent of your estate and the natural heirs of your estate.
  • Free will:  You must create the will voluntarily, without any pressure, undue influence or fraud by others.
If a last will and testament lacks any one of these requirements, the law may consider it invalid and you may contest or challenge it in a legal proceeding. Contesting a will is a complicated and often lengthy process, so it’s important to consult with a knowledgeable and experienced Virginia estate planning attorney who can advise you on whether you have legal grounds for contesting the will and/or identify the ground(s) for challenging the will.  Contesting a will in Virginia requires more than claiming that the individual contesting it was treated unfairly.  In other words, you can’t challenge a will because you don’t like what it says.

Contesting a will

Most wills go through probate unchallenged.  As a general rule, the courts are reluctant to interfere with the wishes of a person as reflected in a last will and testament.  Unless challengers to a will can establish undue influence, lack of testamentary capacity, or other legal issues to invalidate the entire document or certain portions of it, the courts attempt to carry out the last wishes of the testator. Proving fraud or the deceased’s lack of free will is hard to do and usually results in a prolonged and costly legal battle.  It may be easier to prove that the will was invalid for technical reasons, such as improper witnesses, failure to follow the requirements for creating and executing a will under Virginia law, or because there is another valid will.

Estate disputes

The attorneys at Melone Law offer services that address the following estate dispute issues:
  • Disputes over the executor’s compensation
  • Estate and probate administration management disputes
  • Disputes about how the will was drafted
  • Probate
  • Joint property disputes
  • Will and trust disputes
  • Distribution of assets
  • Tax controversies or claims
  • Guardianship documentation
  • Undue influence allegations
  • Fraud
  • Testator Competency issues
  • Inheritance and family planning

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about wills and estate planning, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com.

Prenuptial Agreements…Should I Sign on the Dotted Line?

Though the term prenuptial agreement or “prenup” screams celebrities and the ultra-wealthy, that really isn’t the case anymore.  As couples marry later and bring assets to the marriage, prenuptial agreements have become more commonplace.  Whether you’re talking about a prenuptial agreement created before the marriage, or a marital agreement created after the marriage, the objective is the same… to clear up any ambiguities as to how assets are divided if the marriage ends. So let’s start with a good definition:  A prenuptial agreement is a contract entered into before marriage. This agreement commonly includes provisions for division of property and spousal support in the event of divorce, separation or death. It may also include terms for the forfeiture of assets as a result of divorce on the grounds of adultery.  Most importantly, a prenuptial agreement can preserve the nature of property in the event the marriage ends. In other words, separate property can remain separate, instead of being subject to community property or equitable distribution laws.  Marital agreements are similar with the exception that they are entered into after the couple has married.

Who may benefit from a prenup?

There are many reasons why a couple chooses to create a prenuptial or marital agreement.  The following are the most common scenarios:
  • One spouse comes into the marriage with significantly more assets than the other
  • One spouse has a lot of personal debt (credit cards, student loans, mortgages, etc.)
  • One spouse is the owner or partial owner of a business
  • One spouse earns significantly more income than the other
  • One or both spouses have retirement benefits or employment benefits such as stock options or profit sharing
  • One or both spouses have children from previous marriages or relationships

Benefits of a prenuptial or marital agreement

Though it does not seem romantic to discuss the end of marriage before it even begins, irreconcilable difference over finances is one of the main reasons for divorce.  Taking the time to talk to your spouse about property, marital assets, and finances may benefit your marriage in the long run.  Some benefits of a prenuptial agreement include:
  • documenting each spouse’s separate property to protect it as separate property in the event of a divorce
  • supporting your estate plan to ensure that specific assets go to biological children and are not considered marital property
  • distinguishing between what is marital and what is commingled property
  • documenting and detailing any special financial arrangements between you and your spouse
  • avoiding the time and expense of extended divorce court proceedings and reducing conflicts during a divorce
  • establishing procedures and rules for issues that may arise in the future… since none of us has a crystal ball
  • assignment of debt, such as credit cards, school loans, and mortgages, to the appropriate spouse to avoid both spouses sharing debt liability.
A prenuptial or marital agreement can’t include issues surrounding custody, visitation, or child support.  The Virginia court has the final say based on the best interest of the child.  It also cannot include personal preference or domestic items, like who will wash the dishes or where the family will spend Thanksgiving.  A prenuptial agreement is designed to address only financial issues.  The court can set aside any provision that it finds unfair or not in the interest of justice.  The most commonly set aside provision are spousal support agreements and spousal support waivers.

The prenup checklist

The following is a checklist of topics to discuss when preparing a prenuptial or marital agreement:
  • Deciding what is separate and what is joint property
  • Management of household bills
  • Management of bank accounts (joint, separate, both)
  • Management of credit cards and payments
  • Savings
  • Investment accounts
  • Estate planning
  • Retirement benefits
  • Beneficiary designations on life insurance and other accounts
  • Debt (yours, mine, and ours)
  • Income deductions, claims, and filing tax returns
  • Financial arrangements for putting a spouse through college
  • Spousal support
  • How future disagreements will be settled (e.g. mediation)

Contact a Virginia family law attorney

Every prenuptial or marital agreement is unique.  A prenup is a legal and binding contract that is not easily overturned.  “I didn’t read it” or “I didn’t understand it” or “He wouldn’t marry me if I didn’t sign it” are not excuses once the document has been signed and witnessed.  It’s important that you consult with a Virginia family law attorney to understand your rights before you sign any document which may affect your future.  A judge always has discretion to throw out all or parts of a prenuptial agreement if it is found to be illegal or unconscionable.  The contract will be deemed valid if:
  • The prenup was signed before the date of marriage
  • Each person entered into the prenuptial agreement voluntarily
  • The agreement was substantially fair to both parties;
  • Each person’s disclosures were honest
  • The contract will lead to an equitable result in the event of divorce.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about prenuptial and marital agreements, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com.

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