Legal Question in Wills and Trusts in Virginia

Re: Fiduciary Responsibility for the Home

This is a common problem and a tricky one.

Is there a will?

First, the Administrator (Personal Representative or executor) has a responsiblity not to allow "waste" to compromise the assets. So if there is money available in the estate, he should keep the mortgage from going into foreclosure until the matter is resolved. This may include renting the house, either to one or more of the heirs or to strangers, to raise money to pay the mortgage, if possible.

Second, however, the normal situation is that the heirs receiving the house take it "as is" -- including with the mortgage still on it.

But the wording of the will can change this. I don't remember the exact wording and one would have to study the will anyway. But the wording of the will can change the rule as to whether the mortgage should be paid off.

Of course normally this applies when 1 heir is getting the house, and other heirs are getting whatever money is left over.

If the same people (whomever they turn out to be in the end) are getting a share of the house and also getting whatever money is left over, then it makes no difference in terms of the distribution among the heirs.

I think by agreement of the heirs they could request that the mortgage be retired, which in today's environment may be a smart move.

I don't think the question of who the beneficiaries or are where they are is going to change the answer, although it is a big question by itself.

Except if the house is being given in a will to certain named individuals, but whatever is left may be given to other people than it may make a difference.