Legal Question in Wills and Trusts in Virginia

Re: Duties of an Administrator

If your grandfather's will was last in his possession, there is a rebuttable presumption that he intended to and did revoke it. If he did not have access to the will after signing it, the presumtion goes the other way, that it is lost, and the burden of rebutting that presumption rests with the person who claims it was revoked.

This is an important issue for you, because you are one of your grandfather's heirs; if his child who was your parent is no longer living, you and your siblings would take that parent's share of the estate.

Your aunt should not be able to sell the real estate without the signature of your grandfather's heirs or a order of the court, unless the court accepts the copy as his will and it grants to the executor a power to sell real estate.

If your aunt has qualified as "administrator" (not "executor") of the will, she is proceeding as if there were no will, and you would be in the line of inheritance from your grandfather, if your parent who was his child is not living.

Re: Duties of an Administrator

Here are my questions: Can she sell the house or anything belonging to the estate before the will is probated (my grandfahter did not have any debt when he passed away)?

-----> NO, absolutely not. The only exceptions to this might be if all potential heirs signed off together on the sale, which it appears you are not going to do. She would have to go through the full probate process.

Can she evict me

----> After going through probate, yes.

and charge me back rent at fair market value?

-----> No. You did not have a signed lease with your grandfather did you? On what basis would she charge you rent? An attempt to collect rent from you would be denied by the court on the grounds that (a) you were not previously paying rent so there is no previous grounds for it, but you had permission to live there, and (b) you never signed any lease agreeing to pay rent. Although the new owner of the house or executor could demand that you leave if you do not start paying rent now, there is no basis for asking you to pay back rent.

Since there seems to be no original will how likely is it that the courts will uphold this copy of the original will?

-----> If the will otherwise complies with certain requirements, it is very likely that the copy would be accepted in lieu of the original. (But my colleague raises an interesting point about whether there was intent to revoke the will). However, it would be necessary that the will be in technical compliance with certain formailities. There must be a self-proving affidavit from each witness, etc., etc. But in regard to whether it is an original or a copy, that issue alone would not be a serious obstacle.