Legal Question in Wills and Trusts in Virginia

Re: right of survivirship impact on estate

Generally speaking, no. First, the heir or survivor normally gets the house WITH the mortgage still attached. Second, it sounds like the executor is mixing and matching unrelated things.

The right of survivorship -- written into the deed -- is a process that is OUTSIDE the administration of the will.

So the house would be OUTSIDE the will -- if you are accurately remembering these details.

So, use of money from the estate to pay off the mortgage is mixing and matching things that have nothing to do with each other. The executor (personal representative) is taking money from one place (the estate) and paying it to an entirely different process (the transfer of the deed by operation of the terms of the deed).

Also, whether or not a will giving a house to heirs is subject to the mortgage or the mortgage should be paid off depends on the exact wording of the will. (HERE it is not under the will, but outside it. But in general...)

So just to be on the safe side an attorney should really examine the exact wording of the deed and the will to see what it has to say about this.