Legal Question in Wills and Trusts in Virginia

Re: Father's Will Was Denied

Thank you for actually giving a lot of detail. Most questions lack the detail needed to give a good answer. However, your situation is so complicated that there still may be more detail needed.

A will such as you describe is NOT valid without witnesses, and without the witnesses following a careful formula and script. That is why wills at Staples or Office Depot or Legal Zoom are dangerous... the problem is not the document, but knowing how to USE the document to make it valid.

HOWEVER... insurance policies are outside of a will. They are a creature of contract (between your father and the insurance company). If your father entered into an agreement with the middle child that this money be used for a particular purpose, then that COULD be a binding contract ( a SECOND contract between your father and the middle child) and/or a trustee relationship.

So even though the will might not be valid, the agreement that "I will make you beneficiary of the insurance policy and in exchange for that you agree to use the money for XYZ," could be a binding trustee relationship and/or contract in its own right, separately.

However, as with all such "understandings" the problem is proving it. If there are witnesses or some evidence, then it can be proven and binding. But if it becomes a "he said, she said" dispute, then it might be hard to prove.

Now, what to do with the house is a separate matter. Because that is controlled by a person's will and/or probate if there is no will, that CANNOT be dictated by the understanding re: the insurance policy. The ins policy agreement can dictate the money be used to fix up the house and put it on the market. But the house must be decided by the probate.

ALL of the assets owned by your father must be gathered up (figuratively speaking), all debts paid (IF VALID!!! don't be a patsy for pushy creditors), and then the remainder distributed equally among the heirs (children).

That means that the house must be sold and the money divided among the children / heirs. If the middle child wants to buy it from the other children, that can work.

Now, it is a HORRIBLE time to sell a house. It might be wise to wait. In such a case, the middle child should probably PAY RENT, but then again an executor can also claim some fees, so that might be a wash.

I am disturbed about this lawyer being co-executor. That does not smell right to me, but you gave very few details.

But if it cannot be worked out informally, you could sue (a) the middle child as an informal trustee of the insurance policy money, and/or for breach of contract, and/or under a "constructive trust" theory (ask a lawyer!), and (b) the EXECUTORS (a separate concept even if the same person) for not following the probate rules.

Re: Father's Will Was Denied

It's probably time for you and your younger brother to retain an attorney in order to challenge these various actions by the middle child and the attorney who is assisting him or her as co-executor of the estate.