Legal Question in Wills and Trusts in Virginia

Re: Viewing a will and Power of Attorney

First of all, your brother DOES NOT have a Power

of Attorney for your Father. A POA is automatically extinguished upon death. So the

POA was canceled by operation of law the moment

your father died. Your brother has NO legal role

whatsoever, any more than a stranger, in relation

to your father's estate.

Second, probating the will is NOT optional.

Your father may have debts to third party creditors. Whomever has a copy of the will is

OBLIGATED to probate it, and the executor named

therein (or named by the court) must publish a

legal notice inviting would-be creditors to

apply to show any VALID debts they may have, or

forever hold their peace.

So, it is not just an obligation to the heirs,

but is an obligation to third party outsiders as

well. The will *MUST* be filed with the court,

and cannot be kept secret from other people.

You can talk to the Commissioner of the Accounts

in your COunty to see if they will act, or you

might file a Bill of Complaint against your

brother for an "accounting" of your father's

estate. Normally this would be done against the

executor, but where someone is withholding the

will from the court and others, and is presuming

to act as executor, I think it would work. You

can demand in discovery a copy of all the papers.

You could serve a subpoena against the attorney

for a copy of the will.

However, the attorney who prepared the will

must surely know all of this, and I would pay

him a visit warning him that you are about to

file a lawsuit if the brother does not probate

the will properly. You do not have to do anything to have grounds to ask, except that

you don't know if you are an heir under the will.

Since it is very likely that your mother is, it

would be best to secure a letter from your mother

requesting a copy of the will, so that you are

demanding this on behalf of both you and your

mother. However, I wouldn't let that stop you.

It is *NOT* necessary, just an extra. Because

the burden is on your brother to probate the

will, it is not your duty to prepare to demand it.

Also, your mother can cancel the POA from her

to your brother, if she is unhappy with his

handling of the father's will.

Note that there is a summary procedure for

small estates. The true executor of the will

does have a right to file an expedited,

simplified, slimmed-down version of a probate if

the dollar value of your father's estate is

small. However, it is not okay to do nothing.

It still must be filed with the court.