Contrary to popular belief, once someone has died, in most situations there is no reason to rush to the courthouse to record the will and qualify as executor, nor is there a specific deadline to do so. The first priority is typically to make funeral and burial arrangements and see them through. Next, take some time to gather information about the decedent’s assets and debts. Where did he or she have bank accounts, investment accounts, retirement accounts, life insurance, and real property? How were those assets titled? Were there beneficiaries named? Any asset in the sole name of the decedent and for which there was no beneficiary named will pass through the decedent’s probate estate. The court is interested only in those assets passing through the probate estate, and not in assets that will pass directly to a joint owner or to a named beneficiary.
Once you have a good understanding of the decedent’s assets, consult with an experienced trusts and estates attorney. Depending on how much will be passing through the probate estate, the attorney may recommend that you simply record the original will in court without qualifying as executor. Often if the total value of the probate estate is below $50,000, there is no reason for an executor to qualify – and to take on the responsibilities (including the filing of an inventory and accounting(s)) and liabilities associated with serving as executor. There are other ways to close out what’s considered a “small estate” without going through the full probate process.
If there are insufficient assets to cover the decedent’s outstanding debts, the estate is considered “insolvent,” and debts must be paid in a specific order as prescribed by the Virginia Code. It is extremely important that the executor pay debts in this order as opposed to paying debts as he or she sees fit, because the executor can be held personally liable for debts of the decedent if he or she fails to follow that order.
On occasion, I will meet with an individual who has already qualified as executor unnecessarily, usually because the value of the estate he reported to the court includes the value of a retirement account or life insurance policy which names beneficiaries. The steps we then must take in order to relieve the executor from going through the involved, often lengthy probate process are more complicated than if the executor had spoken with us before qualifying.
If a loved one has named you as executor of his or her will, you can save yourself a lot of time, effort and expense by seeking the advice of an experienced attorney before qualifying as executor in court.
Ask Kit Kat – Learning From Dogs
Hook Law Center: Kit Kat, what can you tell us about dogs being used in medical research which can actually help humans?
Kit Kat: Yes, there is some ground-breaking information on this topic. Here’s the latest. It turns out that dogs make excellent research subjects for scientists who want to locate the precise gene which is responsible for controlling the development of specific diseases. While humans have approximately 1 million genetic markers, dogs only have 170,000. That sure reduces the amount of what sometimes ends up being random testing. Scientists came to this conclusion back in 1999 when Emmanuel Mignot of the Stanford Center for Sleep Sciences and Medicine was able to isolate the gene responsible for narcolepsy in Doberman pinscher puppies. Dobermans are prone to narcolepsy. That finding led to identifying the gene in humans.
There are other examples where different dog breeds have higher than normal ratios of specific diseases. Cancer is more prevalent in golden retrievers, epilepsy in beagles, and autoimmune disorders in Siberian huskies. As this realization has grown, new grants from prestigious institutions such as the National Institutes of Health are becoming available. While some scoff at the idea, others say it is no more unreasonable than using mice, heretofore the standard animal used to further research for humans.
Also, scientists are beginning to tap the huge reservoir of household canines for information collection. The estimated number of pet dogs in the United States is 77.8 million! Elinor Karkson of the Broad Institute of MIT and Harvard says they are an “…incredible resource for science.” No one knows their dog better than its owner. Their insights and record collection are building a bank of data that will be used in medical research. The Broad Institute has invited dog owners to participate in an online survey of 10 questions since October 2015 called Darwin’s Dogs. By June 2016, dog owners had answered more than 616,000 questions, and volunteered almost 7,000 pets as available for DNA sampling. It’s a win for everybody! Stay tuned as we learn more from out canine friends. (http://www.ozy.com/fast-forward/what-dogs-can-teach-us=about-ocd-and-cancer/68623) (8-29-16)
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As with marriage assets, the apportionment of debts can be a complicated and quarrelsome process. But the first factor in any division of debts is whether the state that has jurisdiction over the proceedings is a community property state, as nine states are, or a non-community property state, such as Virginia and Maryland.
In Virginia, one of the 41 states with an equitable distribution law for dividing property and debts, specific guidelines determine the division of debts upon the dissolution of a marriage. Virginia law mandates that the following issues be resolved in order to make a determination on debt division: the classification of debts as marital or separate, the valuation of debts and the equitable division of any debts based on statutory factors from the Virginia Code.
The debt classifications can be defined in two ways. Marital debts are acquired by either spouse from the date of marriage to the date of separation. Conversely, separate debts are accumulated prior the date of the marriage or after the date of separation by a specific spouse in his or her own name.
But a few types of debts fall into a gray area, such as those acquired during a marriage for which a creditor eyed the separate property of one spouse for payment, or those acquired prior to a marriage in one name for purposes that are specific to the marriage.
In Virginia, valuation of marital property is generally the date of the evidentiary hearing or trial, while valuation of debts is based on the date of separation.
Courts in Virginia employ various factors from the Virginia Code to determine the equitable division of debts. However, equitable division does not necessarily translate into an equal division because a court takes into consideration case-specific variables that may be salient in determining how debts, as well as property, should be fairly divided.
While property and debt division can be a troublesome matter to navigate, an experienced divorce attorney can help guide a spouse seeking or facing a divorce through the issues involved, as well as chart a course that is as stress-free and cost-efficient as possible.
Contact a family law attorney with the McDevitt Law Office of call 1-571-223-7642.
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