Legal Question in Wills and Trusts in Virginia

Re: Step Parent decends and property returns to bio children

In most of these questions on LawGuru, we are only giving a rough answer based on what you describe. It is important to examine the actual documents carefully. In your case, this is especially true. The result will depend crucially on exactly what your mother's will says, as well as how the house was titled as ownership before her death. I am assuming of course that your mother's will was properly probated and accepted by the court as being valid and in force.

Most wills say that property goes to a husband or wife, but in the alternative (meaning if that person is not alive) to the children. This sounds very normal.

However, it is also possible to give specific property like a house to a person (such as a spouse) only during their life. They do not own it at all after they die. At the second of death, the property reverts back to the previous owner, or to someone else specified. However, this would have to be written very clearly and precisely for that to be true. Just because a spouse is mentioned and then children are mentioned, does NOT mean that this is true.

However, if in fact the step-father was only given the house during his life, then he can only pledge for a loan that which he owned. He cannot pledge the house after his death, because he cannot give more than what he owns. If he only owned the house during his life, then the lender was foolish to give the loan in the first place. The lender's rights would end at the step-father's death. However, I would be hesitant to jump to this conclusion, because I am surprised that any lender would loan money under such circumstances... unless they did not bother to check the will or did not know of the limitation. Yet, if the step-father only held the house during his life, then the lender's rights are terminated at his death. They would have no further claim on the house... assuming that this really is the situation with your mother's will (and how the house was titled before her death, which could also change the result).

In that case, the lender could still try to collect some or all of the money from your step-father's estate, if he has any other money or property to go after. For example, you say he borrowed a lot of money. Where did all that money go? The lender would have a right to go after that to pay back the loan. But if indeed his rights to the house ended at his death, then they cannot go after the house and their security interest would be terminated. It would not affect the later heirs.

But, again, this would depend upon the exact, and I mean exact, wording of the will and other documents. And the lender would probably try to say that the will means something else, unless it is crystal clear.

Re: Step Parent decends and property returns to bio children

If your mother bequeathed the property to her husband as what the law calls an absolute fee simple estate, meaning that the property was his, without conditions or limitations of any kind, then he was free to mortgage it in any way he wished or borrow against it as collateral for however many loans lenders were willing to give him.

And yes, if that in fact turns out to be the case, then the property rather than the children would be "strapped" with the burden of whatever loans your stepfather took out using this property as collateral and which remain unpaid at the time of his decease.

I would suggest, however, that you have an appropriately qualified attorney review the various documents connected with this matter in order to ascertain precisely what the situation may be, legally speaking.