TV dramas are rife with scenes showing some officious-looking figure reading the last will and testament of someone who just died. Invariably, gasps arise from the audience as those who felt they were cheated or left out voice their displeasure.
TV dramas aside, wills are often challenged, but Virginia law imposes both individual qualifications and time limits for filing claims on an estate that is going through probate.
If you believe you have a claim on an estate being probated, or perhaps being administered by a trustee, and you’re in or around North Chesterfield, Virginia, including nearby Richmond, Henrico, and Petersburg, contact me at The Thomas Law Firm, PLLC.
I will listen to your story, determine whether you are qualified and have a valid claim, and then vigorously represent you as we move forward to resolve your dispute.
There are various issues with a will that may lead to its being contested, but the three main ones involve the mental capacity of the testator (the person writing the will), whether there was undue influence over the person when writing the will, and whether there are technical issues with the instrument itself.
Mental capacity is associated with the phrase “of sound mind.” Undue influence can be the coercion of a family member or friend who is present at the time the will is composed. Technical issues can include whether the will was properly signed and witnessed or whether the handwriting on a holographic (handwritten) will is truly the decedent’s.
If a person dies with a will, the document normally will have named a personal representative to carry out the desires of the testator in court. The personal representative becomes the executor of the estate and its assets during the probate process.
If a person dies without a will, which is called dying intestate, the court will appoint an administrator, but the court itself will follow the rules of intestacy in distributing assets to the heirs. There can still be challenges, but the judge will rule on every dispute and have the final say.
If there is a will, only those who by Virginia law are “interested parties” can file a challenge. Merely being related to the decedent is not enough by itself to qualify as an interested party. You must have a statutory right to part of the estate through the laws of intestacy, just as if there were no will or the will is invalidated during probate.
Under Virginia Code section 64-1.88, if you qualify as an interested party, you have six months of the order of probate if issued by a probate clerk, or one year if issued by a judge, to file a challenge. You must then attend a probate hearing to press your claim.
If the decedent executed a trust prior to death, and the trustee named in the document is now managing the distribution of assets, there is no probate court or judge to oversee disputes. You must file a separate legal action. To do this, you have two years after the settlor’s (trust grantor’s) death, or six months after the trustee has sent you notice of the death and commencement of the trust administration, whichever comes first.
However, the trustee may “proceed to distribute the trust property in accordance with the terms of the trust” unless he or she is aware of a pending judicial proceeding to contest the trust or has been notified of a potential judicial challenge.
Regardless of what a will dictates, surviving spouses have a right to an “elective share” of the decedent’s estate. The spouse is entitled to one-third of the decedent’s “augmented estate” if there are children or their descendants involved. If there are no children or their surviving descendants, the share rises to one-half.
An augmented estate takes into account any assets the spouse received as joint property, property already awarded by the will, and property given to the spouse while the decedent was alive. What’s left is the augmented estate, but the computation can be complex.
Spouses can also elect to file a Homestead Allowance, Family Allowance, or Exempt Property Allowance.
Whatever the nature of your dispute with a will or trust, you’re going to need the watchful eye and knowledgeable help of an experienced estate litigation attorney. Contact me at The Thomas Law Firm, PLLC and let me assess your challenge and qualifications. Working together, we can meet all deadlines and other requirements and move forward to claim what you believe is rightfully yours. I proudly serve clients in North Chesterfield, Richmond, Henrico, Petersburg, and neighboring Virginia communities.