In Virginia, real property given by will generally passes immediately upon the probating of the will after the death of the owner. A probated will has the same effect as a deed in passing title to the beneficiaries. However, if the will gives any interest in the land to the executor (for example, if the will gives the property to the executor to sell), then the property will pass to the estate “in trust” for distribution. Real property may also be devised with certain restrictions on use.
Questions may arise when the language in the will is ambiguous. For example, a will may give a certain tract of land to a particular individual but then caveat the provision with language giving some unspecific portion of that land to another individual (i.e. “I give to Jane Smith Parcel A of land, except that a one-acre tract of Parcel A shall be given John Doe.”) The question then is whether Parcel A passed, in whole or in part, to the executor of the estate in order to divide out the one-acre tract, or if it passed directly to Jane Smith upon the owner’s death, then directing Jane Smith to give a non-specific one-acre tract to John Doe. Further, if it passed directly to Jane Smith, did it also pass to John Doe in part because he received a non-specific portion of the property? And if it did pass to John Doe as well, what exactly is his interest?
While this particular issue has not played out in the Virginia appellate courts, there are two potential options. The first interpretation of this provision is that the party giving the one-acre tract to John Doe will be Jane Smith after she receives the property by way of the will. Under this reading, the will did not give any ownership interest to the executor but rather devised the land to Jane Smith with a restriction that she individually transfer a one-acre parcel to John Doe thereafter. In this scenario, both Jane Smith and John Doe receive the property, with John Doe having an enforceable interest against Jane Smith for one acre.
Alternatively, this provision could be read as giving the executor authority to divide out the one-acre tract prior to transferring the remainder of the property to Jane Doe. Under this scenario, the estate would become record owner of the property, and the executor would be charged with selecting the one-acre tract. This would likely require completing one or more surveys and possibly petitioning the local governing body for a subdivision. The executor would need to take care to conduct due diligence to ensure that they do not favor John Doe or Jane Smith over the other when choosing which part of the land to transfer (i.e. the executor should not choose the most unproductive acre to give to John Doe).
This process could become tedious and expensive for the executor, so it may be worth the executor’s time to try and work out alternate arrangements between Jane Smith and John Doe. If Jane Smith and John Doe can come to agreement regarding the disposition of the property, then the executor will be relieved of the challenges accompanying the division of land. Additionally, if the executor is apprehensive about the interpretation of the will, they can institute a Petition for Aid and Guidance to seek assistance from the court in the correct path to take. Ambiguous land provisions in a will can become contentious, often requiring the assistance of legal counsel to sort out the details.
Explore how GRSM’s Estate & Trust Litigation practice group can assist with such issues.
