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Fairfax, VA Probate Blog

Monday, February 23, 2015

Will Construction: Property Determined at Death (A Will Speaks at Death)

A Will shall be construed, with reference to the real and personal estate comprised in the probate estate, to speak and take effect as if it had been executed immediately before the death of the testator (or decedent), unless a contrary intention shall appear by the Will.

Consequently, when the Executor is reviewing the probate assets to be distributed in accordance with the Will’s provision, unless otherwise provided in the Will, generally what assets the decedent had when the Will was executed is not relevant to determining what assets a beneficiary receives .

The Executor should look to the terms of the Will and apply those terms to the then existing property.

I.e, Decedent executed his Will on 1/1/1990 with 2 parcels of real property. The Decedent died on 1/1/2014 with 5 parcels of real property. The Decedent’s Will leaves “all his real property to his eldest son”.

It doesn’t matter what real property the decedent owned or didn’t own on the day that he executed his Will. What matters is that “all his real property should pass to his son” and the concept of what all his “real property” is shall be determined based upon the real property the decedent owned as of the date of death.

But what happens if a Decedent’s Will bequest’s or devises property that no longer is in the Probate Estate?

Except for an act that results in the revocation of a Will pursuant to Article 64.2 of the Virginia Code, any conveyance or other act done subsequent to the execution of a Will shall not prevent the operation of the Will with respect to such interest in the estate as the testator may have power to dispose of by Will at the time of his death.

I.e., Decedent leaves his Residence at 1401 Elm Street to his only son. At his death, the decedent didn’t own 1401 Elm Street (he sold it 5 years prior while not under a disability). The devise may fail but the remaining provisions of the Will are still valid.

 

A Will’s generally is not revoked merely because the decedent had a bequest devising property the decedent already disposed of or never owned. 

Note: Property may be deemed to have Adeemed or may be deemed to still exist (even in partially) depending on the circumstances. The key to this blog is to show that, unless specifically provided, the absence of the property in the decedent's probate estate doesn't necessarily revoke the Will.




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