Leaving Real Estate in Your Will in Virginia
How you hold title to your real estate (real property) may have an impact on whether or not it can be left to someone in your will. When having a will drafted and considering who you want your real property to pass to upon your death, it is important to know how title to your real property is held. It is also important that you provide your attorney with the title or deed of trust for each piece of real property that you own so that it can be properly addressed in your will.
Title refers to legal ownership and the right to use property. There are several forms of ownership of real property in Virginia, including:
- Sole ownership. Title to real property held in the name of one person is sole ownership. The person who is the sole owner of the property is free to leave it to anyone of their choosing in their will.
- Tenants in common. When title to real property is held in the names of two or more people, they own the property as tenants in common or co-tenants. Each co-tenant has an undivided ownership interest in the property. A co-tenant can leave his undivided interest in the property to anyone of their choosing, subject to the ownership of the other co-tenants. Example: brothers John and Joe own a house as tenants in common; they each own a one-half undivided interest in the house. In his will, John leaves his one-half undivided interest in the house to Joan, who is the sister of John and Joe. When John dies, Joan does not inherit the entire house, she only inherits John’s one-half interest. Joan and Joe are now co-tenants, each with a one-half ownership interest in the property.
- Tenancy by the entirety with right of survivorship. This is a form of ownership that is only possible if the owners are husband and wife. In Virginia, if the title or deed of trust specifically states that the husband and wife own the property as tenants by the entirety with right of survivorship, the property is owned by the husband and wife as if they are one person, not two individuals. Right of survivorship means that when one spouse dies, sole ownership of the property goes to the surviving spouse. Therefore, neither the husband nor the wife can leave their ownership interest in the property to a third party in their will. However, if husband and wife divorce, the tenancy by the entirety with right of survivorship ends automatically, and the parties then own the property as tenants in common. Example: husband and wife own a vacation home as tenants by the entirety with right of survivorship, so neither can leave their interest in the property to a third party in their will. Husband and wife then divorce, and as a part of the divorce, they agree to retain ownership of the home for two years before selling it. Once the divorce is final, the tenancy by the entirety with right of survivorship automatically becomes a tenancy in common, and either party can then leave their undivided one-half interest in the property to anyone of their choosing.
Your ability to leave real estate or other property to the person of your choosing in a will can be greatly impacted by marriage or divorce. If you are considering having a will drafted and may be starting or ending a marriage in the future, be sure to consult with an attorney who has experience with both estate planning and family law. If you are a resident of Northern Virginia, Livesay & Myers, P.C. can help. We have a team of experienced estate planning lawyers who also have extensive experience in Virginia family law. Contact us to schedule a consultation today.