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Christopher M Guest

Christopher Guest’s Answers

7 total

  • How can I leave a house to my sister if my estate is not large enough to cover my existing debts?

    My wife and I are both 30 years old. We have a three-month old daughter, and my sister has agreed to serve as our daughter's guardian should my wife and I both die. My sister rents a house that we own. In the event of our deaths, I'd like thi...

    Christopher’s Answer

    You have a couple of decent answers posted though not exactly right given the differences in Virginia Probate law.

    First on the student loan front, public loans owed to the government are discharged upon your death as long as they are not consolidated and name your spouse on the consolidated loans. Private loans are trickier and depends. Generally, they are like any other creditor and can make claims against your estate or if can make claims against anyone that co-signed your loans like your spouse or parents.

    Second, I agree there are couple issues that your estate plan needs to be addressed given your situation particularly in light of the life insurance policies.

    Third, your home, and if creditors can attach to it will depend on how you own the property. Virginia, unlike California and Minnesota, is a pretty conservative state with respect to its legal rules and has a strong view with respect to the augmented estate and election. In short, the ability of the spouse to take part of the estate regardless of what is said in the will or via intestate.

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  • Grandmother died without will grandfather will is said to be no good

    last year my grandmother who raised me from a baby gave me the last will and testomony of my grandfather who died a few years ago..1 This stated that upon his death grandmother would inherit his estates and would be exec of state 2. upon her death...

    Christopher’s Answer

    To answer your additional information. Who raised you does not matter. In fact, a parent can disinherit a child or in your case a grandchild. If there was no will and the laws of intestacy governed then depending on who was alive at the time of the death of your grandmother would determine who could inherit what properties. In the will for your grandmother, she could leave her property, with in certain parameters, to anyone she deems fit including only to your mother, you, a combination or even someone else barring some type of fraud.

    The question that you raise regarding your grandfather and grandmother property/assets requires a great deal more information and is really based on the language used in the will and how the property was owned in the first place.

    The first issue that is needed to be determined is how the property was owned between your grandmother and grandfather. There are three basic types - joint tenancy with the right of survivorship, tenancy-in-common and tenancy by the entirities. Joint Tenancy and Tenancy by the entirities is generally how husband and wife own real estate and ownership is governed by the operation of law and regardless of the will, the law would determine ownership of the property. As an example, and I don't know if your grandparents owned the real property this way, but if the property was owned in joint tenancy with right of survivorship, when your grandfather died his ownership of the property was extinguished at his death and, thus, his ability in the will to give that property away is void. The remaining joint tenants became the owners of the property and can do with the property as the please as owners. In this case, if the property was owned as joint tenants with your grandfather, then your grandmother's changing of the deed would be deemed appropriate. T

    enancy by the entirity is similarly transferred whereas tenant in common property in simple terms means each owner has a percentage interest in the property and that percentage interest is what is transferred and the will or intestacy would govern who owns that percentage of the property.

    If the property was solely owned by your grandfather he could have only given your grandmother a life estate in the property then her actions would be more suspect. A life estate means the creator of the will is giving someone ownership "rights" in the property for some lifetime, usually the person holding the property's lifetime and then ownership is going to someone else as state in the will. For example, with the right language in the will, your grandfather could have designate the ownership of land for the duration of a person's life - your grandmother - and then designated ownership to you and your mom after your grandmother's death. However, your grandfather's will needs to use express language in it and the property could not be owned as joint tenants with your grandmother for a life estate to be effective.

    Depending on what your grandfather's will states and additional facts will determine what actions to take.

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  • Is the beneficiary of a savings account be superseded by a living will and such account not mentioned on the will

    Is the beneficiary of a savings account be superseded by a living will? Knowingly the maker did not include such account on the will and did not specifically mentioned this on the will nor verbally mentioned it with the Executor.

    Christopher’s Answer

    I agree with Mr. McWilliams. But to further follow up on the point regarding the difference between a living will and a will and many people confuse the two. A living will is a document that describes what actions you would like medical professionals taken regarding your health if you are incapacitated to speak i.e. would you like to be feed intravenously or not or have all measures taken to save your life. You are alive when the provisions of living will can be instituted. In most cases, a living will is the oldest term for what is commonly now referred to as an Advanced Medical Directive.

    A will, or last will and testament, is a legal document that describes what steps are to be taken after you have deceased. It only comes into effect when you have passed.

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  • Can a executrix in your last will and testament be the sole person

    like name if preceaded in death name pre deased name

    Christopher’s Answer

    I'm a little hazy on your question. But if you only want to name one person as the executor (or personal representative) of your last will and testament that is fine. Now, it is advised that you name a couple of personal representatives in case the first person you name has either died, become incapacitated or decides to turn down the appointment for some reason so that you have another person that you trust is in line to serve. If no one is named or your only personal representative declines the appointment then it can become an issue as to who will administrate your estate and could result in multiple people petitioning to become the personal representative or the court appointment someone that you either did not want as the personal representative or could even be someone without any connection to your estate like a creditor for instance.

    You can also name several people as co-personal representatives if wish but they tends to get messy if there is a conflict between the co-personal representatives which can happen for a number of reasons.

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  • Will a "living will" override any rights that a husband may have over the other property/estate?

    If I married someone else, other than my children's father, and I have a will that states that every single asset in my name will be for my children upon my death or impediment to care for them (and I name an executor/manager while they are still ...

    Christopher’s Answer


    While I agree with the overall premise of your answer, I do have one issue with your answer and that is the elective share. Her husband can make an elective share of up to 1/3 her augmented estate if she is survived by descendants and 1/2 of her augmented estate if she was not survived by descendants. The 48K that you side which is comprised of the Family Allowance (18K), Exempt Personal Property Set Aside (15K) and the 15K Homestead Allowance would be excluded from her augmented estate and would be the first item her husband could take and then it goes to the augmented estate. All interests that pass or have passed to the surviving spouse are first applied to satisfy the elective share and the balance is equitably apportioned among the other recipients of the augmented estate.

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  • Virginia Will - Codicil to change Executer

    I have two children listed as my executers of my will. The one has small children and lives out of town and I don't want this to be a burden to her. Can I handwrite a codicil taking her off. As information, it is in my written will that whoever...

    Christopher’s Answer

    A Codicil to be effective in VA, it must met the same requirements of your will. However, Virginia does recognize holographic (i.e. handwritten) wills and courts generally will construe the language liberally.

    The real question is why the need to remove one of your children as personal representative. (Though the better question would be why you wanted both listed as PR when the original will was drafted). While it might be burdensome to your out of state child they can certainly disavow the being executor if they feel that way and let your in-state child be the executor.

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  • In probating the personal property, is the marital property included in the estate?

    As the second wife, the children of my deceased husband are trying to probate his estate. They are trying to do an inventory of the personal property for the estate to get their 2/3 but does that inventory include the furniture, etc. that was ma...

    Christopher’s Answer

    In following up...generally, Virginia considers the following as marital property:

    • Property acquired by either party during the marriage that is not separate property

    • Property that is part marital and part separate.

    • Property whose title is held by both parties (however, this still may be proven to be separate or partly separate if it can be traced accurately and fairly to separate property).

    As Steve states recording keeping is very important, particularly in second marriages, to minimize the family dynamics that takes over in your situation. Without more information, it is hard to give any real feel what your rights are but you should meet with an attorney that specializes in VA probate law. You have my warmest sympathies in a trying situation.

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