Death and Title in Virginia: Dying with a Will

Upon death in Virginia, usually one of two estates are established: either the owner died with a will (testate) or without a will (intestate). When a contract is first received, you must look at who signed the contract--either one or more individuals or an Executor or Administrator. The seller is NEVER the estate of a deceased person in Virginia. Property “drops like a rock” meaning that someone owns this real estate immediately upon the death of the deceased owner. It just may take time to determine who that is. For this Auditor’s Corner, let us highlight a few items that exist when property is owned in Virginia and there is a will.

1. A will must be probated in the locality where the decedent resided when he died, but a copy must be recorded in the land records where the real estate is located. This requirement is often omitted with references to neighboring jurisdictions for a copy of the will. If the person was a resident of another state, the will needs to be probated in THAT state and a certified copy recorded in Virginia. If an Administrator/Personal Representative/Executor is appointed in the state where the decedent lived, they can sell the Virginia property once the will is recorded in Virginia, if the will meets Virginia requirements.

2. Wills need to have TWO disinterested and competent witnesses to be valid unless totally in the decedents handwriting. If the will is not “self-proving” at least one of the witnesses must appear before the probate clerk and swear there were TWO witnesses with the testator, in the same room, at the same time the will was signed.

For further reading on will and estate matters, please refer to Decedent Estates – The Basics located in StarsLink. This brief memo also covers the Schedule B-1 requirements for your title commitment.

Please contact underwriting counsels at VAUnderwriting@OldRepublicTitle.com for specific questions regarding Virginia estate issues.