Legal Question in Wills and Trusts in Virginia
Problem with siblings
Recently my grandfather passed away, prior to his death he had added my aunt onto his checking account as a joint account holder to sign checks in his name, due to him having cancer, and cataracts, he could not see, or write due to his illness. Recently she has cashed out the account, and claimed that they money is all her's. $80,000.00 worth. The will stated that everything was to be divided amongst the 5 children. It never mentioned that she can have sole ownership of the money. The will has not been probated also. Should we hold off on probating till this problem can be resolved? How does the law view this? He also left a house to be divided up amongst the 5 of them, and what happens if 1 person doesn't want to sell, but the others do? Any help would be much appreciated. Thanks.
2 Answers from Attorneys
Re: Problem with siblings
There seems to be enough at issue here for you and your siblings to hire an attorney. As for your questions, the provision in the will suggests that your aunt was only on this account for convenience & not as a survivor of the funds--however this may turn on facts. As for the real estate, if the will permits the personal representative to sell it, the proceeds would then be shared by the children. Alternatively, if all do not agree to sell, there might be a need to bring a "partition" action in Court to order the sale and then disburse the proceeds.
Best of luck.
Re: Problem with siblings
There is no logical reason to delay probating
the will. That should be done immediately
because it must be done. It is not optional or
discretionary. And there is no reason to delay
in terms of the other question.
You must understand that NO ONE has authority
to do anything on this issue until someone is
appointed as executor (personal representative).
Only the executor has the legal authority to do
anything at all about any of this, except the
executor officially appointed by the court.
As a result, actually, the children have NO vote
in whether to sell the house or not sell the
house (unless the will says something about this).
It is the executor's responsibility to collect
all of the assets, pay all the debts, and then
distribute the property according to the will.
It is possible that if one child doesn't want to
sell, they could get proportionately less of
other property to even it out.
However, it is the executor's decision alone
whether to sell the house, rent it out, or
whatever. But the presumption is that all of
the heirs deserve to receive their distribution
under the will. It is possible that all of them
could agree to rent the house and split the rent
and hope to sell the house for more money later.
But it is the executor's decision as to what will
maximize the financial value for all of the heirs.
As to the joint account, first you have to read
what the bank's exact agreement says and know
exactly what the correct legal category is.
However, normally, a joint account would be
received by the joint account holder outside of
the will.
In this case *IF* you can *PROVE* that none of
the money in the account came from the aunt
and that the purpose of her being on the will
was to act as a trustee for your grandfather,
then the EXECUTOR (again, notice who has the
authority to act) can demand the money back.
But it is always difficult when you have to
prove the FACTS as to what exactly happened.