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On Behalf of | Aug 7, 2014 | Estate Planning, Probate |

The following question was asked on by a person in Roanoke, Virginia:

“Is my wife’s sister’s husband entitled to assets from her brother’s estate? My wife’s brother passed away without a will, he was divorced for 35 years and had no children. His only surviving family members were my wife and her sister. They both became joint administrators of his estate. My wife’s sister became ill and passed away before there were any distributions and before estate was settled. Is my wife’s sister’s husband entitled to assets from the estate?”

There are a lot of unfortunate circumstances in this scenario. First, the brother passed away without a Will and second, one of his beneficiaries passed away prior to the distribution of the estate.

When a person dies without a Will in Virginia, their assets are passed per the intestate laws of Virginia. Under such a distribution, everything would go to the person’s spouse if there is a spouse (however, if the deceased had children outside the relationship with the spouse, then the spouse would be entitled to 1/3 and the children would be entitled to 2/3). If there is no spouse, then everything is distributed to the deceased’s children. If there are no children, then everything is distributed to the deceased’s parents. If there are no parents surviving, then to the siblings of the deceased – which is what appears to have happened here. Thus, no matter what the brother in this situation wanted to happen to his estate, everything went to the two sisters.

The second issue that arose was that the one sister passed away prior to the distribution. In Virginia, if a beneficiary survives the deceased by at least 5 days, then they keep their share of the estate (unless there is a Will that changes this default rule to a longer or shorter time period). That being said, if a person survives by more than 5 days, but then passes away before the estate makes its distributions, the executor must make that person’s share to that person’s estate, and their share will pass to their beneficiaries (either under their Will or under the intestacy laws of the state that they reside in).

Thus, in this situation, if the sister survived the brother by at least five days, her share of the estate would go to her estate. Her estate (including this distribution to her from the brother’s estate) would be distributed per her Will if she had one or per the intestacy rules in the state she resided in when she passed away. If in Virginia, everything would go to her husband, unless she had children that were not the children of her husband. Then 1/3 of her estate would go to her husband and 2/3 to her children. The executor of the brother’s estate should not make the distribution directly to the sister’s beneficiaries (her husband) but should be making the distribution to the executor or administrator handling the sister’s estate.

Many of these issues could have been resolved with estate planning. If the brother who passed away first had created a Will or created a Revocable Living Trust stating who his beneficiaries were, he would have had more control over the distribution of his estate. Additionally, if he did not want any “in-laws” receiving portions of his estate (from a situation such as this), he could have included in his estate plan that the portion going to his sister would be held in Trust for her benefit and upon her death, the remaining assets in her Trust would go to X person; thus, avoiding the “in-laws” receiving the sister’s entire portion.

There are many family scenarios that need to be considered when creating an estate plan, but the first step is to actually sit down with an estate planning attorney to go over your various options and to make sure you understand how your estate will be distributed.

Contact the Law Office of Deborah N Arthur to arrange a free consultation to discuss your estate plan. Call us at 703-658-6050 or email Rebecca Evans at [email protected]

This blog is only for informational purposes. Please remember this is not intended as legal advice and does not create an attorney-client relationship. Every case is special and more information would be needed to provide you the best legal advice possible.

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