Fairfax County Probate - What Happens to Real Estate if there is not a Last Will and Testament | Herndon | Oak Hill | Fairfax | Reston

Services for Real Estate Pros with Dominion Wealth Law, PLLC (Wills, Trusts and Probate)

As an Estate Planning and Probate Attorney I handle many cases a year involved in litigation where real estate is involved.  Too often individuals try to prepare a Last Will without an attorney, or fail to prepare a Last Will, resulting in substantally more expense to the ones they love.  Utlimately, this costs the beneficiaries (this is the people they love such as a spouse, children, parents) a lot more then they would have spent for an attorney to draft the Will, and supervise the Will signing.  For example, in Virginia if you do not have a Will the Adminitrator (also referred to as Executor  - this is the person in charge of your property after you die) does not have the authority to sell real estate. 

Imagine the situation where a spouse, and children from different marriages all own real estate which they inherited from the decedent (this is the person who died).  It can be difficult for these individuals to agree to anything.  Although all of these individuals have the right to occupy the real estate, the reality is they will not be willing to live under the same roof.  So basically you may be the owner of a partial interest in real estate which is almost impossible to sell. 

You can go through a partition suit (a suit to force the sale of the real estate), but this is expensive.  Additionally, the Administrator (this is the person in charge of property when there is not a Will) may ask the Virgnia Circuit Court to grant the Administrator the power to sell the real estate.  A motion with the Virginia Circuit Court (this is a request to the court) should be filed by the Administrator asking for the power to sell real estate (this is allowed under Virginia Code 64.1-57 and 64.1-57.1).  In my experience Fairfax County Circuit Court, and been very liberal in granting these requests.  Fairfax County Circuit Court went under major renovation.  The Fairfax County Probate Office is now located 4110 Chainbridge Road, Room 410, Fairfax, VA  22030.  

A well drafted Last Will and Testament would include the power to sell real estate which would avoid the above problems.  If you need assistance in preparing a Will, or knows someone who needs assistance in preparing a Will please call me.  I reside in Haymarket, Virginia.  My contact information is Laura Moldowan, Dominion Wealth Law, PLLC, 14535 John Marshall Hwy, Suite 102, Gainesville, VA  20155.  (703) 753-2305, www.Dominionwealthlaw.com.

Comments (1)

christine relyea

great write up. thanks for sharing this pertinent information.

Oct 07, 2008 09:16 AM