When someone passes away, the state has a legal obligation to ensure their estate is managed and their assets are distributed among the remaining survivors. Most people develop an estate plan that specifically states who should receive what.

But even with a will in place, the deceased’s debts must be paid first. The process of valuing the estate, paying outstanding debts, and then allocating assets to family members is called probate.

If a loved one has passed away and you’re in charge of their estate, it’s important to understand how the probate process will work.

Understanding Probate in Virginia

The actual probate process in Virginia looks much the same as it does in any other state. Virginia does not have a separate probate court, so this process will happen in the county’s local court where the deceased lived. If they lived in an assisted living facility or retirement home, their last permanent residence would be the county of record.

Steps of the Virginia Probate Process

1. A petition to open probate will be filed with the local court.
2. If a will exists, the court will examine it to ensure authenticity.
3. Once the will is verified, the court will approve a personal representative.
4. That representative will notify any heirs or creditors that probate has been opened.
5. Inventory of assets will be taken, including appraisals if necessary.
6. Taxes and other debts will be paid out of the estate proceeds. (If there isn’t enough cash, some assets will be sold.)
7. When all debts are paid, what’s left will be distributed among survivors.

Any assets go first to the surviving spouse if no will is present. If children and a spouse are living, the allocation becomes divided evenly among the children and spouse. If there is no spouse, everything is given equally to the children. If the deceased had no spouse or children, their parents would receive everything. After that, any surviving siblings will be heirs of the estate.

Any assets jointly owned with someone else (a house, for example) will automatically pass to the surviving party. Assets like a 401(k) or life insurance policy with a named beneficiary will go to that person.

Instances Where Probate May Not Be Needed

It’s important to know there are a few times when probate may not be necessary. If someone had minimal assets, the surviving family might be able to skip probate in a few situations.

• Probate may not be needed for real estate if there was no will.
• For personal property, probate may not be needed if the value of all the assets left by the deceased person did not exceed $50,000.

Probate can also be passed by if someone makes a living trust before they die. With a living trust, a person is named as a trustee over all assets, including houses, vehicles, bank accounts, and businesses, in the event of the owner’s death. The owner of those things must then transfer the assets to themselves as the trustee of the trust.

Our Virginia Estate Administration Attorney Can Help With the Probate Process

If this whole process sounds complex, that’s because it is. From start to finish, it can take anywhere from six to 18 months to settle things, cost thousands of dollars, and involve endless paperwork—even with an estate plan in place to help things go more smoothly.

When a loved one dies, the last thing you want to do is travel back and forth to the courthouse for months while their affairs are sorted out. You’ll find that trusting the process to a knowledgeable professional will save you time and the stress of doing it on your own.

At Coastal Atlantic Law, estate administration attorney Kristen Alexander helps Virginia residents navigate the complex probate process. Our Chesapeake office is conveniently located for residents of Portsmouth, Norfolk, Virginia Beach, and Suffolk. Contact us today to learn how we can help.

The process for paying funeral and burial costs after a Virginia resident has passed away will depend on whether they had an estate plan in place. Although an estate plan makes it easier to access the funds needed for these final expenses, you still have options if your family member died without a valid will.

Paying for Funeral Costs When a Virginia Estate Plan Is in Place

When someone has an estate plan, that plan will name an administrator, or someone responsible for carrying out this plan upon the planner’s death. And even though the administrator is named as such in a legal document, they’re not officially the administrator until they take an oath in court and present a certified copy of the will.

That’s fine for most tasks the administrator will handle, but what about funeral costs, which have to be paid even before the legal proceedings around the estate even get started? Fortunately, Virginia Code Section 64.2-511, titled “Powers of executor before qualification,” provides an answer. It reads:

A person named in a will as executor shall not exercise the powers of executor until he qualifies as such by taking an oath and giving bond in the court or before the clerk where the will or an authenticated copy thereof is admitted to record, except that he may provide for the burial of the testator, pay reasonable funeral expenses, and preserve the estate from waste.

In short, even though the administrator isn’t legally the administrator until they take their oath, they can pay for funeral costs out of the deceased’s estate if they’re named so in a legal document. Under this method, checks could be written from the deceased’s account to pay for any burial costs.

Paying for Funeral Costs When No Virginia Estate Plan Is in Place

If the deceased doesn’t have a will and nobody has access to their accounts, funeral costs can still be paid from their estate—the process just becomes a little more involved. A family member would need to pay for funeral costs and then seek reimbursement from the administrator of the estate.

Things can get a little complicated here, though, as there is a limit on what can be reimbursed. Virginia Code Section 64.2-528 states that debts are to be paid out of someone’s estate, and funeral costs are high on the list. Burial costs fall only behind estate administration costs and a small allowance to the person administering the estate, which sounds good for the family trying to pay. However, there is a small caveat attached.

Funeral expenses have to be reasonable per the law. That, of course, depends on each person’s situation, it just means you can’t claim (or actually plan for that matter) an incredibly lavish funeral solely for the sake of avoiding estate debts.

But if it’s believed that someone has more debt than they have assets—meaning there’s not enough money in the estate to pay everything owed—funeral expense reimbursement can not exceed $4,000, including cremation or burial and any services you have.

Let Coastal Atlantic Law Guide You Through the Estate Administration Process

Coastal Atlantic Law helps guide Virginia residents through the process of settling a loved one’s final affairs—even if they passed away without a valid will in place. Our Chesapeake office is conveniently located for residents of Portsmouth, Norfolk, Virginia Beach, and Suffolk. Contact us to discuss how we can help with the estate administration process.

Creating an estate plan is an excellent way to ensure your assets are divided as you wish once you’re gone. But just creating one isn’t enough—it must be updated regularly.

Letting an estate plan sit for decades without being revisited can be just as bad as not creating one in the first place. Your estate plan should be updated at three major times: when your assets change, when your personal circumstances change, and when state or federal laws change.

Update Your Virginia Estate Plan When Your Assets Decrease or Increase

One of the biggest times an estate plan should be updated is when the assets involved change. If you’ve started or sold a business, had a sudden influx of wealth, sold off an investment property, or made any move that majorly adds or takes away from your net worth, it’s time to revisit your estate plan.

If you have an asset not explicitly accounted for in your estate plan, it will be divided as the state sees fit when you pass away. What the state sees fit may not be what you wanted, so it’s smart to periodically review your plan to ensure it accounts for all of your current assets.

It’s also important to update your plan if one of your assets has lost value and you’re trying to distribute assets equally among your heirs. If you have a situation where two children are receiving different pieces of real estate, for example, friction could arise if one of the assets has lost the value it had when you created your original plan.

Update Your Virginia Estate Plan When You Have a Major Life Event

You should also update your estate plan when you have a major life event. What kind of life event would trigger an update of your estate plan? For the most part, these changes involve people, not necessarily assets.

Your estate plan should be updated when you:

• Get married or divorced
• Move to another state
• Have a new child or grandchild
• Have a minor child who is now a legal adult
• Have a family member become permanently disabled or terminally ill
• Have an heir or executor of the estate pass away
• Become estranged from an heir
• Decide an heir wouldn’t be responsible with money, so you want to limit their share

These may seem straightforward, but some changes can have significant effects. For example, some states require that a spouse inherit a certain percentage of the estate, while others have no requirement. If you move to a state with this requirement and your plan hasn’t been updated, the state will decide on its own how to fix things.

If you find that you’ve encountered a major life event, it’s probably a good idea to look over your estate plan with a professional.

Update Your Plan to Account for Changes in State and Federal Law

Even if you haven’t had any major life changes or any change in your assets’ value, you should revisit your estate plan every three to five years. Why? Because tax laws change often, and a change in the law may impact how you decide to allocate your estate.

For example, the US Treasury sets a new amount for the annual lifetime gift and estate tax exemption every year. If you created an estate plan many years ago with that old limit in mind, you’d probably find the new limit is much higher.

Coastal Atlantic Law Can Help Make Sure Your Estate Plan Fits Your Needs

Nobody likes to think about their own death, but it’s important to be prepared. If you want to make sure your wealth passes down according to your wishes, estate planning attorney Kristen Alexander can help make sure that happens. Our Chesapeake office is conveniently located for residents of Portsmouth, Norfolk, Virginia Beach, and Suffolk. Contact us today to schedule an appointment to update your estate plan.

Depositions are question-and-answer sessions conducted under oath as part of the discovery process. They give attorneys a chance to gather the information needed to build their cases. The deposition is taken in the office of one of the attorneys working on the case, and a court reporter will prepare a transcript of everything said.

Depositions are not necessary in every Virginia family law case. A deposition is only required when key facts are in dispute, such as when both parents seek primary custody of the child or when spouses disagree about the division of assets or payment of spousal support.

Types of Questions You May Be Asked

The questions you will be asked during a deposition will depend on the nature of your case. For example, if your case involves a child custody dispute, questions will likely focus on determining how involved each parent has been in the child’s daily upbringing. You may be asked:

• Who is responsible for dressing, bathing, and grooming the child?
• Who prepares the child’s meals?
• Who is responsible for helping the child with homework and attending school functions?
• Do you volunteer at your child’s school?
• Who does your child turn to when hurt, sick, or sad?
• Can you describe a typical day for your child?
• How do you discipline your children?

If your deposition is part of a divorce, you could be asked:

• Do you have any mental or physical health issues?
• Can you describe your duties at your current place of employment?
• How many hours do you work per week?
• Do you have any additional sources of compensation beyond your employment?
• What will your living arrangements be after the divorce?
• Who was responsible for paying bills and managing money during your marriage?

Your attorney can provide you with insight into what questions you can expect to be asked during your deposition.

Deposition Tips

It is normal to feel nervous, anxious, or apprehensive about the prospect of giving a deposition. However, your attorney will be with you at the deposition to ensure your rights are protected throughout the process.

Keep in mind the following tips to help ensure that your deposition goes smoothly:

• Dress to impress. You should be neat, well-groomed, and conservatively dressed. Wear clothing similar to what you’d wear to a job interview.
• Keep your temper in check. A deposition can potentially involve questions about sensitive issues, such as drinking, drug use, mental health problems, infidelity, or domestic violence.
• Pause before answering. This gives your attorney time to object if the question is inappropriate and gives you a moment to collect your thoughts.
• Choose your words carefully. Avoid statements with “always” or “never,” as this can give the opposing attorney an opportunity to make you seem unreliable and untrustworthy.
• Only answer the question that is being asked. Keep your answers brief, and do not volunteer additional information.
• Don’t be afraid of awkward silence. It is common to allow pauses between questions to see if a witness will keep talking to avoid silence.
• Do not attempt to justify responses. Even if you think an answer portrays you unfavorably, do not try to explain your reasoning. Stick to the facts.
• Avoid speculation. It’s okay to admit that you don’t know the answer to a question. Do not lie or guess.
• Don’t try to be funny. While using humor to diffuse a tense situation works well in many circumstances, it’s inappropriate for a deposition. Jokes can be misinterpreted, and you want to avoid coming across as insincere or disrespectful of the court.

Do You Need to Speak With a Chesapeake Family Law Attorney?

Coastal Atlantic Law helps clients with a wide range of family law issues, including preserving access to their children and fighting for their share of marital property. Our Chesapeake office is conveniently located for residents of Portsmouth, Norfolk, Virginia Beach, and Suffolk. Contact us today to discuss how we can help you best move forward.

If you’re dealing with a divorce, issues involving your children can be among the most difficult to resolve. When you’re trying to figure out who will have custody of your children, the first option is for the parents to mutually agree on a setup. This can be a 50/50 split, or it can be another equally agreed-on percentage.

If a child’s parents can’t agree on a custody arrangement, the court system will become involved.

Determining the Best Interest of the Child

When the court is asked to make a decision regarding physical custody and legal custody in a Virginia family law case, the court will make a decision they feel is in the child’s best interest.

Factors the court uses to determine the child’s best interests include:

• Where the child currently lives
• Which parent has been the primary caregiver
• Which parent provides a more stable environment
• Which parent is staying in the family home
• Which parent demonstrates a willingness to put the child’s needs first
• Which parent has stable employment and has the most time available for the child
• If either parent has a new romantic partner
• The child’s preference (if they’re of an age to express a preference)
  

Of course, no single one of these questions will be a deciding factor on its own. If both parents want to be involved, they most likely will be in some way.

Unless there is a strong reason why one parent should have limited access to a child, custody agreements settled by a court almost always include some visitation rights and rights to make key decisions about the child’s upbringing.

Types of Custody in Virginia

The state of Virginia has two main types of split physical custody among parents.

• 50/50 custody sharing: If both parents are deemed to be fit for the child, 50/50 custody may be granted. This is when the child lives with each parent for an equal amount of time. Both parents have access to the child, and neither is the primary parent. This does require a fair amount of movement for the child, so it works best in a situation where both parents live close to each other. It’s recommended that the child has clothing and belongings at each house instead of packing their things each week.
  
• Primary base custody: As the name implies, home base custody makes one parent’s home the child’s regular home. The child does have regular visits with the other parent, even at their house, but it’s less than 50 percent of the time. This arrangement does mean one parent has more time with the child, but it also means the child has a much more stable life. This can be the best arrangement if one parent has a very demanding schedule and doesn’t have as much time to devote to childcare.
  

Legal custody refers to the right to make decisions about a child’s upbringing. Joint legal custody is the most common scenario and means both parents make decisions together as to what’s best for the child. Sole legal custody gives one parent the sole authority to make decisions. This may happen when one parent lives a long distance away, if there is evidence of abuse or neglect, or if there is substance abuse from one parent.

Non-Parental Child Custody Decisions

There are times when someone other than a parent is interested in taking custody of a child. Whether it’s a grandparent, aunt or uncle, or someone else, a non-parent that wants to be a child’s caretaker in a custody battle must prove that the child is in immediate danger or that both parents are unfit.In a re-marriage situation, stepparents do not have legal rights over their spouse’s child. For a stepparent to have custody, a legal adoption must occur, meaning one parent would have to give up their parenting rights.

Our Virginia Family Law Attorney Can Help Settle Your Custody Dispute

Coastal Atlantic Law has helped our clients with a wide range of family law issues, including settling custody disputes and fighting for children’s best interests. Our Chesapeake office is conveniently located for residents of Portsmouth, Norfolk, Virginia Beach, and Suffolk. Contact us to discuss your custody arrangement.

If you’re going through a Virginia divorce, you’re probably trying to set out a plan for custody of your children. Custody is a complex issue and is broken down into two parts: physical custody and legal custody.Physical custody refers to who a child is with at a given point, while legal custody refers to who makes decisions about a child. Both types of custody can be either joint or shared. When parents can’t come to an agreement on their own, the court will make custody decisions based on what’s in the child’s best interest.

Physical Custody in Virginia

In a divorce, the term physical custody designates which parent a child is living with at a certain time. Both parents can have equal physical custody, just one parent can be granted physical custody, or the two parents can agree on a non-even percentage split. If you hear phrases like “parenting schedule” or “parenting arrangement,” those usually refer to a physical custody situation. When arranging physical custody, you want to consider things such as work schedules and extra-curricular activities.It’s essential to make sure this is clear from the beginning because it can affect things later on. For example, if one parent has physical custody and the other does not, the parent with custody legally has the right to move to another state with the children, and a court order proving the move would be harmful is required to stop them.

Legal Custody in Virginia

Legal custody refers to the parent with decision-making power about a child—decisions related to welfare, education, and health. This includes what school or daycare they attend, what activities they participate in, what doctor they visit regularly, and so on. This does not include day-to-day decisions such as what foods they eat, what emergency room they can visit, or what church they attend.Like physical custody, parents will have to agree on how legal custody is laid out. It may be split evenly, just one parent may have all the power, or parents may agree on a certain percentage. It’s important to note that a parent can have more decision-making power than they have physical time with a child, meaning there could be a scenario where a parent has 50% physical custody but 100% legal custody.

Sole vs. Joint Custody

In both legal and physical custody situations, parents will agree to have either sole or joint custody. As the names imply, sole means one parent will have authority while joint means both parents share the authority. If at all possible, joint custody for both areas is the preferred arrangement. But, of course, there are many variables to consider.

• Joint legal custody: This is the most common scenario and means both parents make decisions together as to what’s best for the child. There’s no legal remediation if a disagreement happens, so communication is key.
• Sole legal custody: Regardless of who a child is with, one parent has the sole authority to make decisions in this situation. This may happen when one parent lives a long distance away, if there is evidence of abuse or neglect, or if there is substance abuse from one parent.
• Joint physical custody: This setup is seen most often. Parents split time physically with the children. A joint schedule looks different for every family, and there’s nothing wrong with an uneven split if it’s what works best.
• Sole physical custody: It’s uncommon for one parent to have sole physical custody in a divorce, but it does happen if the other parent has significant difficulties that would make childcare impossible or if the other parent has no desire to be involved.

Let Coastal Atlantic Law Assist You With Your Custody Arrangement

Divorce is rarely easy, and the emotions involved make things even more difficult. But if you’re going through a divorce, it’s important to make the right decisions for any children involved. Not what’s best for any individual parent, but what’s best for the kids.

If you want to set up a custody arrangement but don’t know how to go about it, Coastal Atlantic Law can help. We understand that no two situations are the same, and attorney Kristen Alexander will work to find what best fits your needs.

Our Chesapeake office location is conveniently located for residents of Portsmouth, Norfolk, Virginia Beach, and Suffolk. Contact us to discuss your custody arrangement today.

What is considered adultery under Virginia law?

Under Virginia law, adultery is voluntary sexual intercourse with someone other than your spouse. While emotional relationships can be just as harmful as physical ones, affairs that are solely emotional in nature, without more, are insufficient to be considered adultery.

What is Adultery:

• Voluntary oral, anal, or vaginal intercourse with someone who is not your spouse

What is not Adultery:

• Being friends with someone
• Confiding personal information
• Turning to someone else in vulnerable moments
• Sexting

Signs Your Spouse Could Be Cheating:

• They accuse you of cheating
• They have become more judgmental towards you and your marriage than they used to be
• They have changed their appearance for the better or are dressing up or wearing makeup more often than they used to
• They are talking to you less than usual
• Intimacy has decreased
• They guard their phone
• They continually like and/or comment on the same person’s posts and pictures on social media
• Unexplained charges on credit or debit cards
• Encouraging you to spend more of your free time with others
• Encouraging you to go away on trips to see friends or family alone
• Their friends behave differently towards you
• Changes in routine
• They have cheated in the past

If you think your spouse may be cheating or if you have proof that they have, you must be aware of the statute of limitations to bring a fault-based divorce on adultery in Virginia. A statute of limitations sets the maximum amount of time that parties involved in a dispute have to initiate a legal proceeding from the date of an alleged offense. In Virginia, adultery has a five-year statute of limitations from the date of the act as a divorce ground.

The applicable statute of limitations, the burden of proof required for an adultery-based divorce, and the potential defenses an accused spouse may raise are all reasons that you should consult the experienced attorneys at Coastal Atlantic Law about your adultery-based divorce.

What to Expect When You Meet with Us

At Coastal Atlantic Law, we have the attention to detail and tenacity that it takes to prove divorce based on fault grounds. We devote the utmost attention and care to our clients, and we want to do the same for you.

When you meet with us, we will:

• Outline the costs and benefits associated with legal action, the various approaches to reach your goals, and what you can expect if you hire our team
• Discuss the law generally and then move into how the law applies based on the facts and circumstances unique to your case and family
• Review documents, if applicable
• Work to develop a strategy based on your personal goals