Professional Documents
Culture Documents
Week 3
Spring 2015
Community Property v.
Separate Property
2 systems that each provide mechanisms for recognizing
a spouses contribution to assets acquired by the other
spouse during marriage.
Community Property = each spouse owns undivided
interest in all community property (all property earned by
the couple during the marriage while domiciled in a
community property state EXCLUDING: property
acquired by gift or inheritance).
Separate Property/Common Law system of marital
property = each spouse owns all that he or she earns or
is titled in their individual name and has no ownership
interest in the other spouses earnings.
Divorce then equitable distribution of a couples marital assets
Common Law Protections for surviving spouses
Elective Share Statutes
Community Property
9 1/2 states: Arizona, California, Idaho, Louisiana,
Nevada, New Mexico, Texas, Washington, Wisconsin
Multiple Taxation
More than one state can tax the same
property.
In re Dorrance Estate, the Court held that
it was legal for more than one state to
have an interest in the property of an
individual.
Meaning if domicile is lawfully found in 2
states, there is no constitutional barrier to
taxation by both states
Fiduciary
Duties of a Fiduciary
Duty of Loyalty
Self-dealing
Usurping opportunities
Duty of Care
Act as a person of ordinary, care, and skill
would under similar circumstances
Includes investing and managing assets for
beneficiaries
See also Uniform Prudent Investor Act (UPIA)
Transferring/Disposition of
Ones Property upon Death
Via Probate
Probate
Defining Probate
The judicial procedure by which a
testamentary document is established to be a
valid will;
Process of resolving all claims and distributing
the deceased persons estate
Property passing to beneficiaries by Will or by
the laws of Intestacy to heirs
Probate Process
Produce the Will
Safe deposit boxes
Certified copies of the death certificate
Hearing
Will contests
Appearance of new creditors
Probate in Virginia
http://www.courts.state.va.us/courts/circui
t/resources/probate_in_virginia.pdf
http://vba.affiniscape.com/associations/11
069/files/adminguide.pdf
Advantages of Probate
Will is validated
Executors actions are supervised
Disputes are handled by the court
Sensitive issues such as guardianship of minors
are decided by a third party if not otherwise
specified by the will
Inventory and valuation of decedents assets
and liabilities are carried out
Proof of legal title to real property is established
Deadline is set and enforceable against
creditors claims against the estate
Disadvantages of Probate
Time
Property distribution takes time
Ancillary probate
Cost
Court costs and Administrative Fees may be based on
the size of the probated estate ($.10 cents for every $100
of probate property VA)
Attorneys fees
Privacy
All claims and assets are a matter of public record
Intestacy
Big Brother decides!
Order of descent
Escheat
Administration of Estates in VA
Spouse of deceased (or if none surviving, the
next of kin) makes initial decisions as to the
body, funeral (wishes of deceased is followed if
given in will), and interment before a fiduciary is
appointed.
A person named Executor or Administrator has
no control over the assets of the deceased until
appointed by the probate court.
Executor de son tort = intermeddler
Appointment of Fiduciary to
Administer the Estate in VA
Corporations authorized to do business in
VA can act as a personal representative.
Administrator or executor no longer holds
their office where they:
Die
Resign with permission of the court
Court revokes their authority from any cause it
appears proper
Duties of a Personal
Representative in VA
Collect assets of the estate, pay debts and
taxes due, and distribute the remainder
Must file inventory of assets and valuate
within 4 months of being qualification