My wife and I are redoing/rethinking our wills. When one of us survives
the other the will is trivial: simply distribute everything however the survivor pleases. But when one of us predeceases the other it isn't clear
what should happen to the joint assets. This is in Virginia.

The default, I believe, is that the joint assets automatically go to the surviving party. BUT: can the will frustrate that default? I doubt that
a will could dispose of *all* of the joint assets, but could it dispose of _half_? It seems that the could make life tricky, and perhaps difficult,
for the surviving party. It is not too difficult to see the will leaving
the decedent's half of a liquid asset [even if that might leave the
surviving partner in financial trouble] but what about non-liquid assets.
For example a house that is owned jointly? Can a will leave "their half"
of the house to somebody?

/Bernie\
--
Bernie Cosell Fantasy Farm Fibers
bernie@fantasyfarm.com Pearisburg, VA
--> Too many people, too few sheep <--

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It appears that Bernie Cosell <bernie@fantasyfarm.com> said:

My wife and I are redoing/rethinking our wills. When one of us survives
the other the will is trivial: simply distribute everything however the >survivor pleases. But when one of us predeceases the other it isn't clear >what should happen to the joint assets. This is in Virginia.

I'm pretty sure that if you survive your wife, she predeceased you. Huh?

The default, I believe, is that the joint assets automatically go to the >surviving party. BUT: can the will frustrate that default?

It depends how the asset is held. For things that have titles like
real estate and cars and bank or investment accounts, you can be joint
tenants in which case the survivor owns everything, or you can be
tenants in common in which case you each own a designated share of the
asset, typically 50/50.

For stuff that doesn't have a formal title, Virginia law says
equitable distribution which means fuzzy questions about what is
separate property and what is marital property and what seems fair
given the situation at the time the will is read.

You really need to talk to a lawyer familiar with Virginia estate law
since this is all very state specific. I updated my will last year and
in the process my lawyer put in some New York boilerplate about trusts
for disabled heirs that I hadn't known about but that could save vast
amounts if one of my heirs were to be a (so far nonexistent) disabled grandchild.

--
Regards,
John Levine, johnl@taugh.com, Primary Perpetrator of "The Internet for Dummies",
Please consider the environment before reading this e-mail. https://jl.ly

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Bernie Cosell <bernie@fantasyfarm.com> wrote:

My wife and I are redoing/rethinking our wills. When one of us
survives the other the will is trivial: simply distribute
everything however the survivor pleases. But when one of us
predeceases the other it isn't clear what should happen to the
joint assets. This is in Virginia.

I think you mean after the second spouse dies.

The default, I believe, is that the joint assets automatically go
to the surviving party.

That's true if there is no will and title is "joint tenants with
rights of survivorship." The word "joint" is normally shorthand for
that.

BUT: can the will frustrate that default?

Not if it's joint tenants with rights of survivorship. It's also
true of tenancy by the entirety, which Virginia is one of the few
states that recognizes, and only spouses can have. The major
difference between them is that joint tenancy can be terminated (and
turned to tenants in common) by one of the joint tenants, without the
consent of the other. That's not the case with tenants by the
entirety.

I doubt that a will could dispose of *all* of the joint
assets, but could it dispose of _half_?

No. Joint tenancy property goes directly to the other joint tenant
(s), do not pass Go, maybe collect $200.

It seems that the could make life tricky, and perhaps difficult,
for the surviving party. It is not too difficult to see the will
leaving the decedent's half of a liquid asset [even if that might
leave the surviving partner in financial trouble] but what about
non-liquid assets. For example a house that is owned jointly? Can
a will leave "their half" of the house to somebody?

Not if it's in joint tenancy. If they want to set it up that way,
they'll have to hold title as tenants in common. For spouses in
Virginia, I wouldn't be surprised if escrow companies or whoever
creates deeds for married couples, always sets them up as tenants by
the entirety.

--
Stu
http://DownToEarthLawyer.com

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On 1/6/2023 12:16 PM, Bernie Cosell wrote:

My wife and I are redoing/rethinking our wills. When one of us survives
the other the will is trivial: simply distribute everything however the survivor pleases. But when one of us predeceases the other it isn't clear what should happen to the joint assets. This is in Virginia.

The default, I believe, is that the joint assets automatically go to the surviving party. BUT: can the will frustrate that default? I doubt that
a will could dispose of*all* of the joint assets, but could it dispose of _half_? It seems that the could make life tricky, and perhaps difficult, for the surviving party. It is not too difficult to see the will leaving the decedent's half of a liquid asset [even if that might leave the surviving partner in financial trouble] but what about non-liquid assets.
For example a house that is owned jointly? Can a will leave "their half"
of the house to somebody?

Yes. In general, any property owned by more than one person can be "partitioned". Most of the time the court will order the property sold
and the proceeds divided up according to who owns how much. In your hypothetical "their half", each would get half of the proceeds.

--
I do so have a memory. It's backed up on DVD... somewhere...

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According to Barry Gold <bgold@labcats.org>:

Yes. In general, any property owned by more than one person can be >"partitioned". ...

Sorry, but this is wrong. See Stuart O. Bronstein's excellent note
explaining tenancy in common, joint tenants, and tenancy by the
entirety. In many cases, particularly real estate, the form of
ownership controls whether it can be partitioned and whether a
decedents share goes into his state or directly to the survivor.

My only quibble with his note is that he says that few states allow
tenancy by the entirety, while in fact 25 do.



--
Regards,
John Levine, johnl@taugh.com, Primary Perpetrator of "The Internet for Dummies",
Please consider the environment before reading this e-mail. https://jl.ly

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Barry Gold <bgold@labcats.org> wrote:

Bernie Cosell wrote:

My wife and I are redoing/rethinking our wills. When one of us
survives the other the will is trivial: simply distribute
everything however the survivor pleases. But when one of us
predeceases the other it isn't clear what should happen to the
joint assets. This is in Virginia.

The default, I believe, is that the joint assets automatically go
to the surviving party. BUT: can the will frustrate that
default? I doubt that a will could dispose of*all* of the joint
assets, but could it dispose of _half_? It seems that the could
make life tricky, and perhaps difficult, for the surviving party.
It is not too difficult to see the will leaving the decedent's
half of a liquid asset [even if that might leave the surviving
partner in financial trouble] but what about non-liquid assets.
For example a house that is owned jointly? Can a will leave
"their half" of the house to somebody?

Yes. In general, any property owned by more than one person can be "partitioned". Most of the time the court will order the property
sold and the proceeds divided up according to who owns how much.
In your hypothetical "their half", each would get half of the
proceeds.

That's correct in general, but doesn't apply to joint tenancy or
tenants by the entirety property after one owner dies.


--
Stu
http://DownToEarthLawyer.com

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On 1/7/2023 12:31 PM, Stuart O. Bronstein wrote:

Yes. In general, any property owned by more than one person can be
"partitioned". Most of the time the court will order the property
sold and the proceeds divided up according to who owns how much.
In your hypothetical "their half", each would get half of the
proceeds.

That's correct in general, but doesn't apply to joint tenancy or
tenants by the entirety property after one owner dies.

Good point. I'd forgotten that Tenants-by-entireties behaves much the
same as Joint Tenancy.

--
I do so have a memory. It's backed up on DVD... somewhere...

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"John Levine" <johnl@taugh.com> wrote:

My only quibble with his note is that he says that few states allow
tenancy by the entirety, while in fact 25 do.

You're right. I apologize. I live in a state that doesn't recognize
tenancy by the entirety so unintentionally diminished its role.

--
Stu
http://DownToEarthLawyer.com

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On 1/7/2023 12:31 PM, Stuart O. Bronstein wrote:

Yes. In general, any property owned by more than one person can be
"partitioned". Most of the time the court will order the property
sold and the proceeds divided up according to who owns how much.
In your hypothetical "their half", each would get half of the
proceeds.

That's correct in general, but doesn't apply to joint tenancy or
tenants by the entirety property after one owner dies.

Good point. I'd forgotten that Tenants-by-entireties behaves much the
same as Joint Tenancy.

--
I do so have a memory. It's backed up on DVD... somewhere...

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