Including real estate in your will is a possibility in Virginia. However, there are some important factors you should know about before proceeding. For example, when you go about drawing up papers to include real estate in your will, the status of your marriage or divorce is tremendously influential in the process. Learn more by reading on.
Factors That Facilitate Leaving Real Estate in Your Will
Title: The first and most important factor that facilitates leaving any real estate in your will is the title. In Virginia, holding title means that you possess legal ownership of the property. Therefore, you also have the right to use that property however you see fit. If you wish to pass real estate down through your will, you must hold the title to that property. You should always furnish your attorney with the title so it can be accounted for in your will.
Ownership: Title is so immensely important primarily because it defines ownership. There are several types of legal ownership in Virginia: sole ownership, common tenants, and right of survivorship. Sole ownership is considered when the title is in one person’s name. When someone (namely, the declarant) possesses sole ownership, the property they wish to leave behind can indeed be left to anyone that they choose.
Common Tenants: Common tenants is considered when the title is in the name of at least two people. Common tenants then co-own the property. Thus, this type of ownership grants each co-owner what is known as “undivided interest”, which allows them the authority to leave their undivided interest for a beneficiary of their choosing. However, the other co-owners must approve that choice of beneficiary. This type of ownership essentially transfers a share of a house, for instance, and not the entire house itself.
The Right of Survivorship: Earlier, we alluded to how the status of marriage and divorce was influential to matters of leaving real estate in wills. Marriage and divorce affect the final type of legal ownership in Virginia, which is called the right of survivorship. For this to be possible, the co-owners must be husband and wife. If, on the title, it is noted that the husband and wife as co-tenants and co-owners with right of survivorship, the husband and wife are considered by Virginia law to be one person. Under the right of survivorship, when one spouse passes away, the property automatically transfers to the other still-living spouse. Therefore, as declarants, they cannot leave the property to someone other than themselves. Divorce nullifies this right, however. The right of survivorship converts to common tenancy instead.
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