Legal Question in Wills and Trusts in Virginia
Deceased had no will
My daughter's dad died 7/7/04 He had no will but did have a bank account that someone wrote checks out of to close account on 7/8/05 & again 7/11/05. His 2 minor children haven't gotten anything to remember him by. Is it too late for them to get their share of his estate & put in trust until they're 18+? As of 11/04 there had been no administrator set for his belongings. Although his widow cleaned out the bank account illegally, isn't she obligated to share w/his natural children? Is this something the minor children's mothers should look into? The deceased & his sister had 50/50 on their mother's estate, are the natural children entitled to his share of this as well? (She expressed interest in selling this property & putting the children's share in a trust)
2 Answers from Attorneys
Re: Deceased had no will
If the deceased person's bank account has been "cleaned out", then there would appear to be
few if any assets to distribute to any legitimate heirs. Nevertheless, if the person who did the "cleaning", so to speak, helped herself to more than her legal share, the heirs would have to decide whether they want to sue her to possibly recoup what they failed to receive as intestate heirs if this person refused to return voluntarily any amounts to which she was not entitled.(The amounts would have to be fairly substantial in order to justify such a lawsuit.)
In any event, a relative of the deceased should've went to the courthouse to apply to be appointed as administrator of the deceased's estate. It would've been his or her job to identify and collect up whatever assets the deceased had at the time of his demise and perform other functions which may have included the distribution of those assets to the legitimate heirs after all legitimate bills had been paid.
It would appear that you would be well advised to arrange for a consultation with an attorney in your area who is knowledgeable in the areas of wills and estates and who will be able to advise as to what you should do at this particular point in time(if anything).
Re: Deceased had no will
Someone must go to the court and qualify as
executor ("representative" in Virginia). There
is no way around that. Everything else will be
chasing one's tail until there is an executor
officially appointed. Go to the Clerk of the
Court and ask for the probate office/division.
The daughter can go and ask to be made executor,
on the grounds that the wife is NOT doing so.
Once there is an executor / representative,
that person can demand the records of the bank,
etc., etc. You can ask anyone that the father
had a relationship with for recent records in
order to do the job of executor, and get the last
year or so of complete records.
If the decedent's wife is the FIRST wife, and
the father did not have a will, then the first
wife would almost certainly have the right to
receive everything. If it is a second wife, it
must be shared with the children.
The father's talk about his plans is unfortunate
if he never got around to writing a will.
However, if you know any law firms that he
worked with, contact them to see if in fact he
did have a will that nobody is telling you about.
The executor should get access to the complete
bank records. See if there are any checks
written to any lawyers or law firms.
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