Fiduciary Boot Camp: Should You Record the Will?

by Jonathan A. Nelson

A significant goal in many estate plans is avoiding the time and expense of formal probate.  A decedent’s estate may avoid probate of assets by using a trust, beneficiary designations, and certain titling or contract documents. In Virginia, smaller estates may be eligible to use a Small Estate Act affidavit.  

If you are a fiduciary dealing with a Virginia estate which has successfully avoided having probate assets requiring you to be sworn in as the executor), should you still record the will at the courthouse?  I suggest that the answer is yes in most circumstances, for the following reasons.

1.       Preservation of the original document: The original will is very important in Virginia until it is recorded.  It may be years down the road before you know that you need to record it, particularly if it comes up because of a real estate title problem.  Getting it out of your hands and into the court’s records avoids accidental destruction or becoming lost amid the decedent’s other papers being stored or given away.

2.       Updates records: Any time a Virginia Small Estate Act affidavit is used, and sometimes when government benefits or real estate title issues come up, having the will already recorded saves time and steps later.

3.       Proof of testacy: Until the will is recorded, there is a presumption on paper that the decedent was intestate.  The will lays out who the beneficiaries are, and those people rather than the heirs at law have standing to litigate matters related to the estate administration; recording the will also starts the time limit to challenge that will’s validity.  Both of those are helpful in reducing future litigation and allowing finality to the estate.

4.       Placeholder for executor: Although this category is fortunately not a frequent issue, when it does arise, the avoidable problems are significant.  The will names the decedent’s choice of the person to be in charge of the estate; in an intestate estate, any heir and even creditors can qualify to administer the estate.  Some of the most difficult litigation matters for my clients have dealt with removal of someone who swore there wasn’t a will and took over the estate at a time when there was no will on record.  This has included a child intentionally cut out of the will and an ex who wanted access to recent medical records.  Conversely, I have had a matter where we recorded the will and I found out later a family member who had been excluded as a beneficiary had unsuccessfully tried to qualify as administrator, but was stopped because the will had already been filed at the courthouse.

Very occasionally there may be a reason to intentionally not record a will (or not record it right away); this has come up at our firm only once in the last five years.  The reasoning for that decision is very fact specific, and is best discussed with a competent estate administration attorney.

Virginia attorney Jonathan A. Nelson uses his extensive legal knowledge and trial experience to resolve conflicts, negotiate settlements, navigate compliance matters, and vigorously advocate in the courtroom in order to achieve the best possible outcomes for his clients. He practices in estate planning, probate, trust and estate administration, corporate law, and civil litigation related to these fields.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consulta

Lessons from Litigation (and LAW UPDATE): How to Prove a Deceased Person’s Claim

by Jonathan A. Nelson

The Virginia Supreme Court this month issued an opinion in Bon Secours-DePaul Medical Center, Inc. v. Rogakos-Russell, addressing Virginia’s rules on testimony with a deceased party, commonly called the “Dead Man Statute.”

 The Dead Man Statute has two basic components:

(1)      where there is a claim “by or against” a deceased person or his estate (and also for certain other unavailable persons), there must be disinterested corroboration of the basic elements of the claim; so, for instance, a child could not claim an oral contract with a deceased parent to be paid at $200 an hour from the Estate for lifetime personal care unless there was some outside confirmation of the agreement;

(2)       however, statements by the deceased person which would otherwise be hearsay may generally be admitted as evidence.

The two components have a recognized side effect: the hearsay statement allowable under the second part of the statute must be corroborated in accordance with the first part before it can be used by the interested party.

While the statute is often used defensively by an estate to require disinterested corroboration before acknowledging a claim, in the Bon Secours-DePaul case, the estate of a Greek Orthodox priest brought a wrongful death claim against a hospital, and the only direct evidence of the cause of eventual death was the decedent’s own oral statements that he fell after leaning on a stretcher bed whose wheels should have been locked.

Testimony that the decedent made these statements was introduced by several family members, another priest, and a doctor.  The Court found that the statements were sufficiently corroborated because the priest and the doctor were disinterested in the result, and further that the statements did not make the decedent a ‘witness’ requiring additional corroboration in their own right – he is a ‘hearsay declarant’ about whom the witnesses testified, and, having passed on to the next life, he has no remaining interest in the affairs of this life.

There is one important question which the Court declined to rule on in this case: whether the Dead Man Statute’s corroboration is even required where the hearsay is offered in favor of the deceased party rather than by its opponent.  However, because the Court ruled (and this is consistent with centuries of law) that the decedent is not a party, it seems to me a fair inference that the decedent’s survivors will still need corroboration – the decedent is not strictly on their side, either.  In fact, it is not always clear which side the decedent would be on. Consider an example where someone’s will has been probated and then a second will is introduced. Testimony of the decedent’s hearsay statements about which of the two documents is consistent with his wishes would likely be introduced by  both sides; it would create a rather uneven playing field if only the party who lost the race to the probate office had to corroborate the decedent’s statements.

The Dead Man Statute can be technical to apply.  If you are looking at litigation by or against an estate, including cases not directly related to probate issues, seek advice from counsel experienced in its use.

Virginia attorney Jonathan A. Nelson uses his extensive legal knowledge and trial experience to resolve conflicts, negotiate settlements, navigate compliance matters, and vigorously advocate in the courtroom in order to achieve the best possible outcomes for his clients. He practices in estate planning, probate, trust and estate administration, corporate law, and civil litigation related to these fields.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.