My brother passed away 2/29/12 in VA. There are 3 adult children, 2 of which I'm not sure are his even though he didn't request a dna test over the years. One of the 3 children has been doing under handed things since his passing. First of all, she has changed the locks at my brother's home and will not allow the other sibling in. She's under the impression that once she submits the death certificate to the bank, she will be able to just take the money and run. I'm trying to assist my brother's older child to do the right thing, the right way. Also, should a request be made to have a dna test done and how would you get that done since my brother has already been buried. What advice can you offer.
I am sorry for your loss. This sounds like a difficult case with a high likelihood of conflict among your brother's children.
If your brother died without a will (intestate), the law of Virginia will determine which of his next of kin will receive his estate. Usually state law gives a surviving spouse priority to the estate with children second. None of the children will be able to get control of your brother's bank accounts or real estate unless they were also joint owners of the accounts or property prior to his death. One of the children will need to hire a probate lawyer in Virginia and apply to the court to be appointed executor or personal representative of your brother's estate. Virginia law will identify which next of kin has priority. Most likely all of the surviving children have equal priority to be named as the executor. If they can't agree who should be executor, they could agree to have an independent third party serve as executor. If they can't agree on how to handle the case, substantial attorney fees could be expended fighting over the estate. I am currently involved in probate dispute where there was no will and the three children have been fighting over who should serve as personal representative for three years.
If there is only one house, it will probably have to be sold with the proceeds being distributed equally to the children after all estate expenses are paid.
The child that you are counseling should consult with a Virginia probate lawyer. They can help to get the case on track and deal with the issue of paternity under Virginia law.
Mr. Foley has provided you with a treasure trove of information. To that I would add that under Virginia's law of descent and distribution, your father's intestate estate (i.e., there is no Will) would pass as follows:
1. If he was married to the mother of all three of his children at the time of his death (and she's alive), then the entire estate passes to her.
2. If he was married (spouse still alive) at the time of his death, but the spouse was not the mother (biological or adoptive) of ALL of his children, then 1/3 of his estate would pass to her and 2/3 of his estate would be split equally between his children who are not her children. If they are children in common between them, those children would not inherit (it is up to their mother to pass on her share of the estate to them at her death..or not, as the case may be).
3. If he was not married and/or spouse was deceased at the time of his death, then the estate passes to his children in equal shares -- if a child is pre-deceased, then that child's share passes to the child's children.
Paternity disputes in estate cases can be complicated. Estate cases in general can be complicated, especially if one of the relatives is behaving in a sketchy fashion. So, I would strongly recommend consulting a probate attorney right away AND have the older (more responsible, less sketchy) child file for appointment as personal representative of the estate asap! In the event that there is an issue with getting a representative appointed and there is a need to secure and inventorty the property, the probate court may also be able to appoint a Curator for the estate in the interim.
On the paternity issue, if there is a dispute over whether the two children are your brother's biological children, Virginia Code § 64.1-5.2. lists the following ways that evidence of paternity may be proven by children born out of wedlock who are claiming the right to an inheritance:
1. That the father cohabited openly with the mother during all of the ten months immediately prior to the time the child was born;
2. That the father gave consent to a physician or other person, not including the mother, charged with the responsibility of securing information for the preparation of a birth record that his name be used as the father of the child upon the birth records of the child;
3. That the father allowed by a general course of conduct the common use of his surname by the child;
4. That the father claimed the child as his child on any statement, tax return or other document filed and signed by him with any local, state or federal government or any agency thereof;
5. That the father admitted before any court having jurisdiction to try and dispose of the same that he is the father of the child;
6. That the father voluntarily admitted paternity in writing, under oath;
7. The results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence; or
8. Other medical, scientific or anthropological evidence relating to the alleged parentage of the child based on tests performed by experts.
This list is not exhaustive, so any other ways of proving paternity could work even if not included on this list. That said, the children would have to prove paternity by "clear and convincing" evidence, which is higher than the burden of proof in a regular civil trial. The children in question would also have a time limit to make such a claim or their claims would be barred.
Based on the suspicious behavior on the part of one of the children you describe, and on the potential complexity of the paternity issue, your brother's oldest son really ought to follow the advice of the other contributors and retain counsel on this matter to ensure that it is resolved appropriately for all involved.
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