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.

If I’m Not Married, Do I Need a Will?

Let’s start with a short case study… a very sad and unnecessary scenario: A client’s domestic partner died in an automobile accident.  They had been together for eight years and at the time of his death, she was three months pregnant.  The house, car title, and bank accounts were all in his name only.  He had a life insurance policy at work and a 401k retirement account, but his original beneficiary, his sister, was still listed on both.  He always talked about adding her name to the house and bank accounts and making her his beneficiary, but time flew by and these items were never at the top of their to-do list.  They were young and healthy, barely into their thirties, and now that they were going to be parents, figured they’d get around to making a will and cleaning up these items after the baby was born. By the intestacy laws of Virginia, their child will be entitled to inherit 100% of his estate.  But in the meantime, she doesn’t have access to anything owned by her domestic partner.  The family demanded that she leave the house and have changed the locks.  She doesn’t know what they might be doing with his and her personal property.  She has no access to the bank accounts or money.  She is not entitled to a copy of the death certificate, so can’t qualify as the administrator of the estate.  She now has no choice but to retain an attorney.  It will take time and it will be expensive, but her child’s future is at stake. If her partner had a simple will stating his wishes for his partner and children, as well as a transfer on death deed and up-to-date beneficiary designations, there would be no issues.  But now, instead of going through the grieving process and planning for the birth of their child, she’s hiring an attorney and going to court with the hope that a judge and the law will help her straighten out this mess.

How to Ensure Your Partner is Protected

The belief that living together as domestic partners for at least seven years constitutes a “common law” marriage is a myth. Only fifteen states and Washington, D.C., recognize common law marriages and the Commonwealth of Virginia is not one of them. Although unmarried couples do not receive federal protection like married couples, documents can be created to provide some of those same protections. If you are in a committed relationship but not legally married, and especially if you have children together, you need to take certain steps to protect your partner. Otherwise, blood relatives, such as parents, children from previous marriages and/or relationships, and siblings, may have rights to exclude your partner from inheriting your property. If you want your partner to inherit your assets, you should consider these steps:
  • Write a will naming your partner as an heir to whatever property you would like him or her to have.
  • Name your partner as the beneficiary on all retirement accounts and life insurance policies that you want to pass to him or her. It is important to make sure and change the beneficiary designation on those policies and accounts you had in place before the relationship began.
  • Structure ownership so that property passes to your partner. “Joint tenants with right of survivorship” or a Transfer on Death Deed will accomplish this goal.
  • Establish a trust to pass property to your partner in a tax-efficient way. Spouses can transfer assets to each other tax-free, but unmarried partners cannot.
In a will, you can leave property you don’t think of or don’t yet own, such as a house you inherit later from your grandfather. Any property not specifically bequeathed goes into the “residuary” estate which covers all property not left to a certain person. You can name your partner as the residual beneficiary so he or she gets that property. A will allows you to designate a personal guardian for any minor children, and to name an executor to control the property distribution and handle the administrative and court duties.

Consult an estate planning attorney

Just because you choose not to marry, does not mean that your wishes should not be kept when you pass away.  It is important to consult with a knowledgeable estate planning attorney with experience working with domestic partners.  Your attorney will walk you through the necessary steps that need to be taken to protect both your partner and your estate in the event of your death and draft the appropriate documents to make sure your wishes are fulfilled.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm based in Reston and serves 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 domestic partnerships, wills, trusts, and our family law practice, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com.

How Often Should I Review My Will, Trust, and Estate Plan?

There are two primary reasons for having an estate plan:
  • To make sure that your family and loved ones are taken care of to the best extent possible following your death, and
  • To provide clear instructions on what should happen to your estate following your death
Without a will or trust, the Virginia courts will apply state intestacy law to distribute your assets, regardless of what you wanted or promised.  The courts not only decide what happens to your assets, they may also decide what happens to your children.  Your will or trust and other estate documents are the most important legal documents you’ll probably ever sign. The goal of good estate planning is to ensure that your assets go to the people that you want to benefit after you’re gone.  Because life isn’t static and is filled with many changes over the years, your estate planning documents may need to change and be updated too. Many people create a will relatively early in life to achieve these goals, because they understand that death can, unfortunately, come at any time. But as you move through adulthood, your life will probably change in ways that impact both the assets that you own as well as the people in your life that you want to benefit. You get married, have children, buy a house, have grandchildren, have a pension or open retirement accounts… the list goes on and on.  You may have created a basic will at some point, even a do-it-yourself will, without the help of an estate planning attorney.  But as your life changes and assets grow, an attorney with expertise in estate planning will help you understand strategic estate planning methods that better fit your situation and provide additional protections and benefits for beneficiaries than simply passing property through a will. Your will and other estate planning documents should be reviewed whenever you have a life changing event.  But even without big life changes, it’s best to review your documents with a Virginia estate planning attorney every three to five years. Laws are ever changing and you want to be sure that your documents remain effective and efficient at expressing your wishes.

What events should prompt my estate planning documents to be updated?

  • Marriage
  • Divorce
  • Birth or adoption of a child
  • Children reaching the age of majority (18)
  • Death of a spouse
  • Death or incapacity of a beneficiary
  • Buying or selling a primary residence or vacation home
  • Buying or selling a major asset (boat, plane, collectibles)
  • A significant change in your estate’s value
  • Change in your executor, guardians, trustees, agents, or personal representatives
  • Receipt of an inheritance
  • Medical needs
  • Changes to state law
  • A move to a new state
  • Starting a new business
  • Planning for charitable or other organizational contributions
In addition to the list above, everyone should have all their estate documents reviewed before the age of 70 if you have an IRA or 401(k) that requires you to begin taking distributions at the age of 70 ½.

How do I change my will or trust?

There are several different ways to amend or update your estate planning documents and much depends on how big a change you are making.  It is best to consult an estate planning attorney when making changes to executed documents to ensure that all legal formalities are followed and the changes being made are effective. Codicil:  A codicil is the formal way to amend your will.  It is a way to add a new provision to or revoke a part of your existing will.  Adding a codicil to your will can do a number of things, such as revoke the inheritance of a previous beneficiary or establish a new beneficiary for inheritance. However, you should not attempt to make substantial changes to your will through a codicil. Once the codicil is written, signed, witnessed, and dated, it should be kept with the original will. Memorandum of Tangible Personal Property:  One issue you’ll want to consider when you’re writing your last will and testament is how you want your personal effects distributed, including things like jewelry, collectibles, antiques, artwork, china, silver, furniture, etc. In other words, who gets the grand piano and which daughter or daughter-in-law gets your diamond engagement ring.  If you have specific people in mind to receive certain items, you can list them and the property you’d like them to receive in a separate written list and attach it to your will.​  Using a personal property memorandum allows you to change these bequests without worrying about all the formalities of having a codicil or amendment signed and witnessed. It’s usually far easier to simply detach an old memorandum and replace it with a new one when you want to make changes. Revocation:  If you need to make major changes to your will, it may be more beneficial to rewrite your will than to edit or amend the existing one.  To revoke your existing will, simply state that your new will revokes any previous wills.  Then sign and date your revocation in your newly established will. It’s best to destroy all known copies of the old will so that your beneficiaries won’t be confused. Updating a Trust:  As long as your trust is revocable, you are able to make changes at any time. An irrevocable trust cannot be changed under any circumstances.  A revocable trust can be amended, revoked, or terminated at any time and for any reason. To make a change, you simple attach a signed and dated amendment to your revocable trust. The amendment may make changes to trust property, beneficiaries, or designations.  Be sure you attach your amendments to your original trust documents in order to reflect your changes. No matter what changes you need to make, be they large or small, the important thing to remember is an outdated will or trust means that the court must abide by your outdated wishes, regardless of the changes in your life or your current wishes. The laws of Virginia makes it relatively easy to update a will, trust, and other estate planning documents. This is a great time to speak with an estate planning attorney to assess all your documents and how updating your will or trust, along with incorporating other estate planning documents can best provide for you and your family for decades to come.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm based in Reston and serves 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, trusts, and our estate planning services, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com.

Your Divorce is Final. Have You Revised Your Estate Plan?

Your divorce is final, assets have been divided, child support, custody, and spousal support have been determined, and you’re ready to move forward with your life.  But you’re not quite done yet.  The final step in your divorce is an appointment with your estate planning attorney. The estate plan you created with your ex-spouse during your marriage needs to be revised and updated with new estate planning documents.  If you do not update and revise your estate plan, your ex-spouse or even your ex-spouse’s new husband or wife and children may inherit your assets.

If you have a will

During your marriage, you cannot disinherit your spouse through a will. After divorce, the best way to revise a will is to simply execute a new will, and revoke your old will.  This can easily be done by shredding or burning it, or by stating in the new will that you are revoking all prior wills. Making a new will ensures that your current wishes are reflected.  This includes the persons or entities you wish to receive your estate, the person you wish to be the executor of your estate, and most importantly, the person you choose to be the guardian of your minor children and their property. If you die and your ex-spouse is still alive, in all likelihood your ex-spouse will be awarded custody of your minor children. If both parents are deceased, or the surviving parent is determined to be unfit, the court will appoint a guardian. Though the court is not required to follow your guardianship choice, it most often will do so.  If you have sole custody of your children, and don’t want your ex-spouse to have custody if you die, you need to put your reasons in writing and attach that statement to your will for a judge to consider.

If you have a revocable living trust

As with a will, it is best to create a new revocable living trust after your divorce.  Minor children can be beneficiaries of the new trust, and your ex-spouse can be prevented from controlling their assets if you wish.  You can designate the new trust to be the beneficiary of various assets, such as pay-on-death bank accounts, transfer-on-death brokerage accounts, and life insurance policies. Even IRAs, 401(k)s, 403(b)s, and pensions can designate the trust as beneficiary, but there may be tax ramifications that you should discuss with your accountant and estate planning attorney.  If the divorce decree allows one party to remain in the family home, a trust may be used to shelter the property from creditors or a future spouse.  Depending upon your circumstances and goals, it may be necessary to set up more than one trust.

Beneficiary designations

Your spouse is probably designated as the beneficiary on your various bank and other financial accounts, life insurance policies, retirement and pension plans and social security benefits.  You will need to change the designation of such beneficiaries, or else those assets will pass automatically to your former spouse by operation of law and outside of your estate plan. As discussed above, if you are setting up a new living trust, you may want to name the trust as the beneficiary, especially if you have minor children. Otherwise, a beneficiary who is a minor will need a trustee or conservator to manage their inheritance, and the court may appoint your ex-spouse.  To make a beneficiary change you will need to obtain the necessary forms from your financial institutions, brokerage firm, or employer.

Powers of attorney

A financial power of attorney can give your agent broad powers, such as to sell your property and remove funds from your financial accounts. If you have appointed your spouse as your agent on any financial power of attorney, you should immediately execute a document revoking it and deliver a copy to all of your financial institutions. This may be done even while your divorce case is still pending. If you determine it is necessary, you can execute a new power of attorney appointing another trusted person as your agent.

Health care directives

If you have a health care advance medical directive or living will, you probably appointed your spouse to make medical treatment decisions for you when you are unable.  It is best if you revoke the document and execute new health care directives appointing a trusted person as your agent.  Again, this can be done while your divorce case is still pending. Your health care providers should be notified of the change and given a copy of the new document for your file.

Other considerations

Sometimes divorced couples remain friends and continue to trust each other on various matters. Nothing prevents you from leaving a gift to your ex-spouse in your will, or designating him or her as your beneficiary, your agent in a power of attorney, or custodian of minor children. The important thing to remember is that you should discuss your estate plan with an experienced Virginia estate planning attorney who will help you re-evaluate your plan, prepare and execute new documents, and make sure that your estate plan is complete and nothing has fallen through the cracks. This should be done as soon as possible to protect yourself as well as minor children.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm based in Reston and serves 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 divorce and our estate planning services, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com.

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