Legal Question in Wills and Trusts in Virginia

Welcome,

First I have listed the people involved and their relationships. Next, an important side note about a specific type of trust you should be aware of. Third, you will find my succinct answer to your question based on the facts provided.

PART 1:

I have listed the people involved and assigned each a corresponding abbreviation for purposes of my analysis. In parentheses, you will see comments and questions I have about facts you have either left out or perhaps failed to specify (which is perfectly understandable). Where you see these questions, however, please note that the final analysis could change depending on pieces of information left out.

Players:

Twin Sister 1 (Ts1): full sister with Ts2. Half sister with S3. Half Brother is B1.

Twin Sister 2 (Ts2): Decedent (died 10/2013) intestate; no children (was there a surviving spouse or grand-kids?)

Mom (M): Deceased; Mother of Ts1, Ts2, B1, and S3

Dad A: Father of Ts1 and Ts2 (but not on birth certificate)

Dad B: Father of B1 and S3

Brother (B1): Child of M (same father as S3?)

Sister 3 (S3): Child of M (same fater as B1?)

First, let me get out of the way a list of types of assets that won't be affected by the "intestate succession laws," the body of law we will be looking at in just a moment.

Non exhaustive list of assets not affected by intestate succession laws:

- property transferred to a living trust;

- life insurance proceeds;

- funds in an IRA;

- 401(k);

- retirement account;

- securities held in a transfer-on-death account;

- payable-on-death bank accounts;

- property you own with someone else in joint tenancy or tenancy by the entirety

These assets will pass to the surviving co-owner or to the beneficiary named by Ts2.

-----

Facts:

Ts1 and Ts2 raised in foster care together.

How do you determine her (the twin sister's) beneficiary? Or Beneficiaries?

----Analysis----

In Virginia, when a person dies without a Will or "Will substitute" (like a Trust), a set of statutes referred to as the Virginia Intestacy laws apply to determine who gets what.

PART 2:

*** SIDE NOTE:

A Will must go through the probate process, which is public, costly, and can be slow. Thus, I mention this in case you yourself (or other loved ones/friends you care about) do not have a Will: I strongly suggest a revocable living trust if you are anywhere between 20 and 60.

If you are still healthy, living at home, but think you might need long term care such as assisted care at home or even nursing home at some point (most people do) in the next five years, a different type of trust could be used to protect your money and assets from creditors, including nursing home creditors.

Otherwise what we see happen is an entire estate and nest egg gone in two years many times. Without proper protection, two years of care (or about 200,000) can deplete an estate quickly. My firm offers this unique trust for this type of planning.

END OF SIDE NOTE. ***

PART 3:

When someone passes without a Will, and there exists no surviving: spouse; child; or child of child etc; then the parents of the deceased individual inherit the estate. If no parents, then the siblings. Half-bloods receive that of the full-bloods.

Your foster parents won't get anything, unless they adopted your sister. If your father is thought by the probate court to be dead or unknown, then you would take one half because you are a full-blood sibling. The half-brother (B1) would take one fourth, and the other half-sister (s3) would take one fourth.

But if the court does find out who the father is despite the birth certificate issue (for example, established by clear and convincing evidence), then he would be the taker.

The question of your birth certificate not bearing your "father's" name is important. There may be a paternity test but the ways this could play out in court are too difficult to ascertain without more information. Has paternity ever been established? It must be established by "clear and convincing evidence" (a specific standard of evidence) in Virginia.

Does he know he is the father?

Did he give you up for adoption?

Was he in your life at all, and are you sure he is your biological father?