Legal Question in Wills and Trusts in Virginia
Executor Responsibilities
My Father died May, 2005. Brother was his POA until his death. The will was finally read Feb, 2006. Brother was also named Executor. The will was recorded in Feb 2006 and other than real estate it was reported ''no assets''.
At the reading it was acknowledged that in October 2004 Brother, etl took all of Fathers CD's (appx $60,000)converted them to smaller CD's ($11k each) presumebly to avoid estate taxes; dispersed to various members of Brother & his family and to Sister & her family. Mother & I were not included in the dispersement. When the will was read Father left,other than specific items, ''all the rest & residue of estate both real & personal'' to Mother and 3 children in 4 equal shares. How can I determine (1) if,as POA, Brother had authority to convert Fathers assets prior to his death?;(2)if there was only appx $60k converted and not more? (3) since at least 4 people not listed in the will received cd's in the 10/2004 transaction how can those funds to people not listed in the will be returned and dispersed according to the will?;(4) is the real estate titled in Fathers name automatically changed by the courts to 4 people listed in the will. No communication at all from Brother since reading of the will.
1 Answer from Attorneys
Re: Executor Responsibilities
You should consult with a Virginia attorney to discuss the application of the law to the facts of your particular situation. The following is general legal information on advancements in Virginia.
Black�s Law Dictionary defines an advancement as �[m]oney or property given by a parent to his child or, sometimes, presumptive heir, or expended by the former for the latter�s benefit, by way of anticipation of the share which the child will inherit in the parent�s estate and intended to be deducted therefrom��
Section 64.1-17 of the Code of Virginia describes what happens to advancements:
� 64.1-17. In division of estate of intestate, advancements to be brought into hotchpot. � When any descendant of a person dying intestate as to his estate, or any part thereof, shall have received from such intestate in his lifetime, or under his will, any estate, real or personal, by way of advancement, and he, or any descendant of his, shall come into the partition and distribution of the estate with the other parceners and distributees, such advancement shall be brought into hotchpot with the whole estate, real and personal, descended or distributable, and thereupon such party shall be entitled to his proper portion of the estate, real and personal. (Code 1950, � 64-17; 1968, c. 656.)
Section 64.1-63.1 of the Code of Virignia qualifies what may be treated as an advancement with a will:
� 64.1-63.1. When advancement deemed satisfaction of devise or bequest. � Property which a testator gave during his lifetime to a person shall not be treated as a satisfaction of a devise or bequest to that person, in whole or in part, unless (i) the will provides for deduction of the lifetime gift, (ii) the testator declares in a contemporaneous writing that the gift is to be deducted from the devise or bequest or is in satisfaction thereof, or (iii) the devisee or legatee acknowledges in writing that the gift is in satisfaction. (Code 1950, �� 64-63, 64.1-63; 1968, c. 656; 1985, c. 432.)
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