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Ask Ely Your Own Question
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 101731
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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What do I do if a will is lost and the attorney is dead and

Customer Question

what do I do if a will is lost and the attorney is dead and he did not file the will
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Ely replied 1 year ago.
Hello and welcome to JustAnswer. Please note:
(A) This is general information and is not legal advice. No specific course of action is proposed herein. No attorney-client relationship or privilege is formed by speaking to an expert on this site. This is repeated in numerous disclaimers throughout the site. By continuing, you confirm that you understand and agree to these terms; and (B) there may be a slight delay between your follow ups and my reply while I am typing out my answer.
I am sorry to hear about this situation.
1) Did the couple have biological children?
2) When did the couple pass away?
3) Whose name is ***** ***** in now?
4) Was probate ever filed for their estates?
5) If the couple had other biological children, are they okay with you receiving the property?
This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.
yes she is deceased
mom 87 and dad 96
only one daughter and she is dead, there was a will but my dad's copy is missing and his attorney did not fill will now he is dead
Customer: replied 1 year ago.
what do I do
Expert:  Ely replied 1 year ago.
Thank you.
So you have lived in the home "unofficially" without title since 1996, correct?
Expert:  Ely replied 1 year ago.
I am going to have to go offline in a bit, and I am going to provide an answer based on the information I have.
So you have a strange situation here, and there are two ways to go about resolving it. First, a bit of background.
When someone passes away, then their estate has to be distributed. The problem is that without probate - with assets such as titled property or bank accounts (those that do not have a pay on death clause) - this is hard to do. This is because you cannot switch over the assets without an order from the probate court, and simply a Certificate of Death will not do. A Certificate of Death simply states that someone has passed on, but does not give you the right to really do anything in the deceased's name.
So one files probate. Once probate is filed, the Executor of the estate gets something called a Letter of Testament/Administration (hereinafter "Letter"). This Letter will allow the Executor to switch over the assets from the deceased individual to whoever will own the property. It is like a "Power of Attorney," but from the Court. Without that Letter, there is no way to transfer titled property and switch the assets into the beneficiaries' hands.
If there was a Will, the beneficiaries are decided per the Will. If there was no will, the beneficiaries are decided by default succession law of the state - see here, and scroll down to "Who Gets What..."
The problem here is that the Will is LOST, and someone in your situation is not formally adopted. While the Court will sometimes recognize an unofficial adoption, this is generally a high standard and hard to meet. Therefore, the Court may decide to give the title to an extended biological family member, instead.
Adverse Possession
Someone in your situation may wish to get the title via adverse possession, i.e. squatter's rights. This requires proving to the Court that the property was held on to with:
Hostile Possession- The property is taken without permission from the property owner (herein starting from date of dad's passing);
Actual Possession - The claimant must physically possess the property in order to claim title.
Open and Notorious - Possession of the property must be open and obvious to casual onlookers.
Exclusive and Continuous for a Specified Period of Time - the person claiming title must have been the exclusive possessor of the property for 15 years (in Virginia).
One can file for adverse possession with the Court via a QUIET TITLE action which may be more practical, and get title this way.
I hope this helps and clarifies. Gentle Reminder: Use the SEND or REPLY button to keep chatting, or please rate when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of the top three faces/stars and then SUBMIT, as this is how I get credit for my time with you. Rating my answer the bottom two faces/stars or failing to submit the rating does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith.

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