What is probate?
Probate in Virginia refers to the legal process through which a deceased person's estate is administered and their assets are distributed. Here's a breakdown of the probate process in Virginia:
1. Initiating Probate: Probate typically begins by filing a petition with the Circuit Court in the county where the deceased person lived. This petition may request the appointment of an executor or administrator to manage the estate.
2. Appointment of Executor/Administrator: If the deceased person left a will, the court will appoint the person named as executor in the will, provided they meet the legal requirements. If there is no will, or if the named executor is unable or unwilling to serve, the court will appoint an administrator.
3. Inventory and Appraisal: The executor or administrator is responsible for taking an inventory of the deceased person's assets and having them appraised. This includes real estate, personal property, financial accounts, and any other assets owned by the deceased.
4. Notification of Creditors and Claims: Virginia law requires that the executor or administrator notify known creditors of the estate and publish a notice in a local newspaper to notify any unknown creditors. Creditors have a specified period of time to file claims against the estate.
5. Payment of Debts and Taxes: The executor or administrator is responsible for using estate funds to pay off the deceased person's debts, including any taxes owed to the state or federal government.
6. Distribution of Assets: Once debts, taxes, and expenses of the estate have been paid, the remaining assets are distributed to the beneficiaries named in the will or, if there is no will, according to Virginia's intestate succession laws.
7. Final Accounting and Closing of Estate: After all assets have been distributed and all debts settled, the executor or administrator must file a final accounting with the court detailing how the estate was handled. Once the court approves the final accounting, the estate can be closed.
It's worth noting that not all estates in Virginia are subject to probate. Some assets, such as those held in a living trust or assets with designated beneficiaries (like life insurance policies or retirement accounts), may pass outside of probate. Additionally, Virginia offers simplified probate procedures for smaller estates.
Adoption in Virginia
In Virginia, as in most U.S. states, there are several types of adoption available to individuals and couples who wish to adopt a child. The main types of adoption in Virginia are:
Agency Adoption: In agency adoption, a licensed adoption agency facilitates the adoption process. This can be a public agency (such as the Virginia Department of Social Services) or a private adoption agency. Agency adoptions typically involve children who are in foster care, waiting to be adopted, or infants placed by birth parents for adoption.
Independent Adoption: In an independent adoption, also known as a private adoption, the birth parents and adoptive parents work directly with each other or through an attorney or facilitator to arrange the adoption. Independent adoptions are subject to specific legal requirements in Virginia, and it's essential to follow the state's adoption laws closely.
Stepparent Adoption: Stepparent adoption occurs when a stepparent wishes to adopt their spouse's child. This process typically involves the termination of the noncustodial biological parent's rights, and the stepparent takes on the legal rights and responsibilities of a parent.
Relative Adoption: When a close relative (such as a grandparent, aunt, uncle, or sibling) wishes to adopt a child, it's known as a relative adoption. This can be a way to keep a child within their extended family.
International Adoption: Virginia residents can adopt children from other countries through international adoption agencies. These adoptions involve adhering to both U.S. immigration and the child's home country's adoption requirements.
Adult Adoption: In some cases, adults may choose to be legally adopted by other adults. This is typically done for emotional or inheritance reasons and doesn't involve minor children.
Foster Care Adoption: Virginia has a significant need for foster care adoptive families. Many children in the state's foster care system are waiting to be adopted. Foster parents may choose to adopt a child they've been fostering, or individuals/couples can adopt from foster care through an agency.
Open Adoption: Open adoptions allow for ongoing contact and communication between the birth parents, adoptive parents, and the adopted child. The terms of open adoption can vary widely and are agreed upon by the parties involved.
It's essential to note that adoption laws and regulations may change over time, so it's crucial to consult with an adoption attorney or agency for the most up-to-date information and guidance when pursuing adoption in Virginia. Additionally, there are specific requirements, background checks, and home studies that potential adoptive parents must meet, and the process can be complex and time-consuming.
What is a power of attorney? Do you need one?
In Virginia, a power of attorney (POA) is a legal document that grants someone (known as the "agent" or "attorney-in-fact") the authority to make decisions and take actions on behalf of another person (known as the "principal"). The person granting the authority is typically an adult who is of sound mind and capable of understanding the implications of the document.
Here are some key points about a power of attorney in Virginia:
Types of Power of Attorney: Virginia recognizes several types of power of attorney, including:
- General Power of Attorney: Grants the agent broad authority to make financial and legal decisions on behalf of the principal.
- Limited or Special Power of Attorney: Grants the agent specific, limited authority to perform certain actions on behalf of the principal, typically for a specific purpose and time frame.
- Durable Power of Attorney: Remains in effect even if the principal becomes incapacitated or unable to make decisions.
- Springing Power of Attorney: Becomes effective only when a specific event or condition, such as the principal's incapacity, occurs.
Requirements: In Virginia, a power of attorney must be in writing and signed by the principal. It must also be notarized or witnessed by at least two adults who are not the agent or related to the agent by blood, marriage, or adoption.
Agent's Duties: The agent has a legal duty to act in the best interests of the principal, to avoid conflicts of interest, and to keep accurate records of all transactions made on behalf of the principal.
Revocation: The principal can revoke or terminate the power of attorney at any time as long as they are mentally competent. This can be done by notifying the agent in writing and, if necessary, by notifying third parties who have been dealing with the agent on the principal's behalf
It's important to consult with an attorney experienced in Virginia law when creating a power of attorney to ensure that it meets the specific legal requirements and addresses the individual needs and circumstances of the principal. Legal advice can help you navigate the complexities of these documents and make informed decisions.
Who needs a power of attorney?
A power of attorney can be a valuable legal tool for a variety of individuals and situations. It allows someone (the principal) to designate another person (the agent or attorney-in-fact) to make decisions and take actions on their behalf. The need for a power of attorney can arise in several scenarios:
- Estate Planning: Many people include a durable power of attorney as part of their estate planning documents. This ensures that someone they trust can manage their financial and legal affairs if they become incapacitated. It can help avoid the need for a court-appointed guardian or conservator.
- Business Matters: Business owners may use a power of attorney to designate someone to act on their behalf in business transactions or manage their business affairs if they are unable to do so themselves.
- Healthcare Decisions: A healthcare power of attorney (a type of POA) allows individuals to appoint someone to make medical decisions on their behalf if they become unable to do so. This is often included as part of an advance healthcare directive or living will.
- Age-Related Concerns: Older adults may use a power of attorney to plan for the possibility of diminished capacity due to aging. This can help ensure their financial and healthcare needs are met without the need for a court-appointed guardian.
- Military Deployment: Service members may create a power of attorney to authorize a trusted individual to manage their financial and legal matters while they are deployed or stationed abroad.
- Disability or Illness: Individuals facing a serious illness or disability may want to establish a power of attorney to ensure that their affairs are managed appropriately during times of incapacity.
- Financial Management: Some people grant a power of attorney to a financial advisor or attorney to manage their investments, assets, or financial transactions on an ongoing basis.
It's important to note that the specific requirements and regulations for powers of attorney can vary by jurisdiction, so it's advisable to consult with an attorney who is knowledgeable about the laws in your area when creating a power of attorney. Additionally, the decision to grant a power of attorney is a personal one and should be made carefully, with consideration of the potential implications and the trustworthiness of the chosen agent.
What is an advanced medical directive? Do you need one?
An advanced medical directive in Virginia, often referred to as an Advance Directive for Health Care, is a legal document that allows individuals to specify their healthcare preferences and appoint a healthcare agent to make medical decisions on their behalf if they become unable to do so. It can include instructions about life-sustaining treatments, organ donation, and other medical choices. Virginia law provides specific forms and guidelines for creating and implementing advanced medical directives to ensure that a person's healthcare wishes are respected.
An advanced medical directive is recommended for anyone who wants to ensure that their healthcare preferences are honored, particularly in situations where they may be unable to communicate or make decisions. This document can be beneficial for:
- Adults of all ages: It's not limited to older individuals; anyone over 18 can benefit from having an advanced medical directive.
- Individuals with specific medical conditions: Those with chronic illnesses or terminal diseases may have strong preferences about their medical care.
- Elderly individuals: As people age, they may face more healthcare decisions and may want to express their preferences in advance.
- Individuals facing surgery or medical procedures: Temporary incapacity due to surgery or medical procedures may necessitate clear instructions.
- Anyone concerned about their healthcare choices: Regardless of age or health status, if someone has specific preferences about their medical treatment, an advanced medical directive can be valuable.
Consulting with an attorney can provide guidance on whether an advanced medical directive is appropriate for your individual circumstances.
So you want to get your marriage annulled?
In Virginia, like in many other states, annulment is a legal process that declares a marriage null and void, as if it never existed. Annulment differs from divorce, which ends a legally valid marriage.
Why would someone consider getting an annulment, rather than a divorce?
Religious Beliefs: Some people may seek an annulment for religious reasons. Some religious institutions do not recognize divorce, but they may allow for annulments under certain circumstances. An annulment aligns with the belief that the marriage was invalid from the start.
Social or Cultural Stigma: In some cultures or communities, divorce carries a significant social stigma. An annulment, which declares the marriage null and void, may be seen as a more socially acceptable way to end the relationship.
Property and Financial Considerations: An annulment can simplify property division and financial matters. Since the marriage is considered to have never existed, it may be easier to determine property rights and financial responsibilities.
To obtain an annulment in Virginia, you must meet specific grounds outlined in the state's laws. Some of the grounds for annulment in Virginia include:
- Bigamy: If one party was already married to someone else at the time of the marriage, the marriage can be annulled.
- Incest: If the spouses are closely related by blood, such as siblings or parents and children, the marriage may be annulled.
- Impotence: If one spouse was unable to consummate the marriage and the other party was unaware of this condition at the time of marriage, an annulment may be granted.
These are just a few of the grounds that may allow you to seek an annulment, rather than a divorce.
It's important to note that the process and requirements for obtaining an annulment in Virginia may vary depending on the specific circumstances of the case. It's advisable to consult with a qualified Virginia family law attorney in order to understand if your situation meets the requirements for an annulment.
What about post-nups?
WHAT IS A POST-NUPTIAL AGREEMENT IN VIRGINIA?
A postnuptial agreement, also known as a post-marital agreement, is a legal contract entered into by a married couple after their wedding or civil union has taken place. Like a prenuptial agreement, a postnuptial agreement outlines the division of assets and addresses financial matters in the event of divorce, separation, or the death of one spouse.
In Virginia, a postnuptial agreement is governed by the same laws as prenuptial agreements,. The requirements for a valid postnuptial agreement in Virginia are generally the same as those for a prenuptial agreement:
- In writing: The postnuptial agreement must be in writing and signed by both spouses.
- Voluntary: Both parties must enter into the agreement voluntarily and without any signs of coercion or duress.
- Full disclosure: Both spouses must provide a complete and honest disclosure of their financial assets, debts, and obligations.
- Fair and reasonable: The terms of the agreement should not be unconscionable or unfairly one-sided.
- Compliance with public policy: The agreement cannot include provisions that violate Virginia's public policy or laws.
A postnuptial agreement can address various financial matters, such as:
- Division of property and assets: The agreement may specify how assets acquired during the marriage will be divided in case of divorce or separation.
- Alimony or spousal support: It can outline the amount and duration of spousal support if the marriage ends.
- Debts and liabilities: The agreement can establish responsibility for existing debts and liabilities.
- Estate planning matters: It may cover issues related to wills, trusts, and inheritance rights.
- Any other mutually agreed-upon provisions: Couples can customize their postnuptial agreements to address specific concerns or financial matters.
Postnuptial agreements can be beneficial for couples who did not sign a prenuptial agreement before marriage or for couples who want to update or modify their financial arrangements during the marriage. It is essential for both parties to seek independent legal counsel before signing a postnuptial agreement to ensure their rights and interests are protected, and that the agreement complies with Virginia's laws and regulations.
WHO NEEDS A POST-NUPTIAL AGREEMENT IN VIRGINIA?
A postnuptial agreement in Virginia can be beneficial for various couples in different situations. While it might not be necessary or suitable for everyone, there are specific scenarios where a postnuptial agreement could be considered:
- Change in financial circumstances: If there has been a significant change in the financial situation of one or both spouses during the marriage (e.g., a significant increase in income, inheritance, or acquisition of valuable assets), a postnuptial agreement can help clarify how these new financial circumstances will be managed in the event of divorce or separation.
- Absence of a prenuptial agreement: Couples who did not sign a prenuptial agreement before getting married might consider a postnuptial agreement as a way to address financial matters and protect assets acquired during the marriage.
- Addressing unforeseen events: A postnuptial agreement can help couples plan for unexpected events, such as one spouse starting a business, winning a lottery, or receiving a substantial gift.
- Reconciliation after separation: Couples who have experienced marital issues, including separation, and decide to reconcile might use a postnuptial agreement to clarify financial arrangements and address potential concerns that arose during the separation period.
- Estate planning purposes: Postnuptial agreements can be used to complement estate planning strategies, especially when there are changes in beneficiaries or inheritances.
- Clarifying financial expectations: Like prenuptial agreements, postnuptial agreements can facilitate open discussions about finances, financial responsibilities, and long-term financial goals within the marriage.
Remember that a postnuptial agreement is a legally binding contract, and both parties should carefully consider the implications before signing. It's crucial to consult with a family law attorney to understand the potential consequences and ensure that the agreement meets the legal requirements in Virginia.
Furthermore, while a postnuptial agreement can address financial matters and property division, it cannot resolve child custody or child support issues. Those matters are typically decided by a court based on the best interests of the child if the couple were to divorce or separate.
Let's talk about prenups
WHAT IS A PRENUPTIAL AGREEMENT IN VIRGINIA?
A prenuptial agreement, also known as a prenup or premarital agreement, is a legally binding contract that couples enter into before getting married or entering into a civil union. It outlines how certain issues will be handled in the event of divorce or separation. Prenuptial agreements are designed to protect the individual rights and assets of each spouse and can address various financial and property-related matters.
In order to be valid in Virginia, a prenuptial agreement must meet several requirements:
- In writing: The agreement must be in writing and signed by both parties before the marriage takes place.
- Voluntary: Both parties must enter into the agreement voluntarily and without any signs of coercion or duress.
- Full disclosure: Both parties must make a full and fair disclosure of their assets, debts, and financial obligations.
- Fair and reasonable: The terms of the agreement should not be unconscionable or overly one-sided.
- No violation of public policy: The agreement cannot include terms that violate Virginia's public policy or laws.
Prenuptial agreements in Virginia often address the following topics:
- Division of property and assets: The agreement may specify how assets acquired before or during the marriage will be divided in the event of divorce or separation.
- Alimony or spousal support: It can outline the amount and duration of spousal support if the marriage ends.
- Debts and liabilities: The agreement can establish responsibility for existing debts and liabilities.
- Estate planning matters: It may cover issues related to wills, trusts, and inheritance rights.
- Any other mutually agreed-upon provisions: Couples can customize their prenuptial agreements to address specific concerns or financial matters.
It's essential to consult with a family law attorney experienced in prenuptial agreements in Virginia to ensure that the agreement complies with the state's laws and effectively protects the interests of both parties. Moreover, as laws and regulations can change over time, it is advisable to seek legal advice that considers the most up-to-date information.
WHO NEEDS A PRENUP IN VA?
A prenuptial agreement can be beneficial for various individuals and couples in Virginia, but it is not necessary or appropriate for everyone. Here are some situations where a prenuptial agreement may be considered:
- Individuals with significant assets: If one or both partners have substantial assets, such as real estate, investments, businesses, or valuable personal property, a prenuptial agreement can help protect those assets in the event of divorce or separation.
- Business owners: If one or both partners own a business, a prenuptial agreement can safeguard the business's interests and prevent it from becoming a point of contention in a divorce.
- Unequal financial situations: When there is a significant disparity in the financial situations of the partners, a prenuptial agreement can help ensure that both parties are treated fairly and that the less financially secure spouse is protected.
- Previous marriages or children from previous relationships: If one or both partners have children from previous marriages or relationships, a prenuptial agreement can help ensure that the children's inheritance rights and financial interests are protected.
- Potential inheritance: If one or both partners expect to receive a substantial inheritance in the future, a prenuptial agreement can define how that inheritance will be handled during a divorce.
- Protection against debt: A prenuptial agreement can help shield one spouse from being responsible for the other spouse's debts incurred before or during the marriage.
- Clarifying financial expectations: A prenuptial agreement can encourage open and honest communication about financial matters, leading to a better understanding of each other's financial expectations and goals.
It's essential to remember that a prenuptial agreement is not only about planning for a possible divorce; it is also a tool for financial planning and protection in the context of marriage. It allows couples to have important discussions about their financial future, which can be beneficial for their relationship.
However, a prenuptial agreement might not be suitable for every couple. Some people may prefer to rely on Virginia's default laws on property division, spousal support, and other matters in case of divorce. Deciding whether to pursue a prenuptial agreement is a personal decision that should be made after careful consideration and consultation with a family law attorney to understand all the implications.
Disappearing evidence?
How often have you told yourself that because you used an app with an automatic deletion feature, that the picture you posted or text message you sent are completely gone? As a former prosecutor, I spent a lot of time reviewing search warrants and evidence gathered from cellphones and laptops that people thought was long gone. With the proliferation of artificial intelligence and hacking software, there are a variety of ways to retrieve information from your electronic devices.
Where is this information frequently seen? It might be the emails from three years ago in an embezzlement case. Or it might be the phone call log to establish phone calls and messages between parties in a drug distribution case. That photo that you downloaded that came in a folder of 400 other pictures, and you thought you deleted all of them? That entire folder can be pulled by an investigator and if you have not checked every file, you may the subject of a possession of child pornography investigation. If it happens on the internet, or on an electronic device, there is a way for an investigator to track it down and potentially use it against you – regardless of what automatic deletion settings you may use.
GPS data pulled from cellphones has even been used to help discredit one’s alibi and place them near the scene of a murder. So while we have a great thing in all of our modern technology, just know that it can be used against you and nothing ever truly disappears. If you are charged with a criminal offense and your cellphone or electronics have been seized, it is important that you work closely with an attorney to strategize your defense.
What is a "nolle pros"?
So you’re leaving the courthouse, and you were told by the judge that your case has been “nolle prossed” and will not proceed any further today. What does that actually mean? Virginia Code Section 19.2-265.3 allows for the prosecutor to request a “nolle prosequi” and decline to prosecute a case after a showing of good cause. A nolle prosequi is different from a dismissal, and as a result, there are different legal ramifications.
You will often hear a Virginia prosecutor say “the Commonwealth moves to nolle pros” – but have they actually stated the reason for doing so? The judge must find that there is good cause to enter into this disposition. For example, there may be insufficient evidence to move forward, there may be an unavailable witness who has not appeared a few times for court, or even that the prosecutor is waiting on the test results from the state laboratory. In some cases, it will be appropriate for your defense attorney to object to the prosecutor’s request for a nolle prosequi. Ultimately, the judge will make the final decision as to whether or not to grant the prosecutor’s request.
While you may believe that your case is completely done and never to be seen again – that is actually not the case. The prosecutor can bring back your charge via direct indictment or bring new charges based upon further investigation. Also, there are situations where a nolle prossed case does not mean that you are eligible for expungement.
If you have a case that was previously “nolle prossed” you should talk to a defense attorney about whether your charge is eligible to be expunged from your criminal history. You should also talk to a defense attorney about the possibility of your charges being brought to a grand jury by the prosecutor.
So you've been charged with DUI
So you’ve been stopped by an officer after being stopped for allegedly driving under the influence – what happens now? Unfortunately, being charged for driving under the influence is how most people are introduced to the criminal justice system in Virginia. You may have been caught at a DUI checkpoint, or after falling asleep behind the wheel, or at the scene of an accident. If a police officer suspects that you drove while under the influence of drugs or alcohol, you can be detained, subsequently arrested, and charged with DUI.
Right before your arrest, you are likely to be asked to perform a series of pre-exit tests and field sobriety tests. You will be asked things such as whether or not you are fluent in the English language, whether or not you have any medical conditions that may affect your ability to conduct the field sobriety tests, and how much alcohol you had prior to driving. It is of the utmost importance that you are honest with the police officer; however, you should not volunteer unnecessary information. Based upon your performance of the field sobriety tests, the officer may then offer you a roadside preliminary breath test. Please remember that a blood alcohol level above .08% is above the legal limit allowed in the Commonwealth. After this, you will likely be placed under arrest and advised of your charge.
Once placed under arrest, your right against self-incrimination has attached – so it is important to not say anything without having a lawyer present. You will be transported to the police station for a final breath test and then taken before a magistrate who will formally issue a warrant for driving under the influence. Depending upon your blood alcohol level, you are likely to be held in the local jail until the next business day when you will be brought before a judge for your arraignment. At the arraignment, you will be asked whether or not you wish to hire an attorney (hint: the answer is always yes!), and you will be given your hearing date. You may or may not be released on bond at that time – that decision is made solely by the judge. The sooner that you or a loved one contact an attorney, the sooner that you can have a bond hearing so that you can be released to return to work.
While waiting on your final hearing date, please note that you may be required to surrender your license to the court. You should work closely with your attorney to prepare your defense strategy because there are serious penalties for a DUI conviction in Virginia. You could lose your driving privilege for up to one year; you could have a fine up to $2,500.00; you could be sentenced to time in jail. None of these situations are ideal, and this is why you should speak with an attorney in order to mitigate the consequences of any conviction.
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