We have a complicated situation

[Michael Blalock]

Jurisdiction

Virginia

This will involve death, child custody, the intestate succession process, etc.

My brother-in-law died a few days ago suddenly, leaving behind his wife, two children (by another wife) and his house. There is no will. He put his wife's name on the deed about a year ago. She is also an illegal immigrant and they have been in the process of changing that. He claimed they actually did marry, and his son has told me he was at the courthouse when they went in to do it and saw the certificate afterwards, so that seems true. But since she is not yet legal can the house actually go to her? And how did she get put on the deed in the first place if not legal?

He had occupational accident insurance through his job, which he was on when he died, but oddly his wife wasn't listed as a beneficiary, and he is listed as single, but everything I know leads me to believe they actually did get married, so I'm guessing that's just an error from somewhere but I don't know. How will this get settled?

The children's biological mother is in very bad health and another stroke/seizure could kill her. It is very likely she will let us take custody of the children. What do I need to know about getting custody of the children, what do the authorities check on concerning us in the process, etc.

As for the house, can it go to her since she is on the deed even though she is illegal? I was reading about the intestate succession process and it says something like his property gets divided between his current wife (one third) and his gets (who get two thirds). I'm guessing if her claim to the title is somehow valid, she'll simply get the house. If not, will it be sold and the money divided between the wife and the children?

Also I'm not looking to get anything out of this. He had student loans also so most if not all of the money will go to that anyway before getting distributed to anyone else. At least I think that's how it would work. But even if that weren't so I'm honestly not trying to get anything out of it.

Sorry for being so disconnected but my head is everywhere because of all this. There is a lot more to this but we'll start here. Any help is appreciated.

 

[Zigner]

I'm sorry for your loss.
Commonly, a husband and wife will own property together as joint tenants with right of survivorship, which means that the wife will, in fact, own the house outright. It is not a function of intestate succession, rather, it's a function of the way the house is titled. If that's how they owned the house, then yes, it's hers...100%.

As for custody of the children, you would be wise to seek out the assistance of a local family-law attorney to make sure things are done correctly.

Lastly, it's possible that the insurance will go, at least partially (if not fully) to the wife as a function of laws or regulations in the state. That is something that will need to be looked into.

 

[Michael Blalock]

Thank you for your answer. So its still hers even if she is still in illegal status?

 

[Zigner]

Thank you for your answer. So its still hers even if she is still in illegal status?

It's irrelevant.

 

[Michael Blalock]

And also what about everything that was his inside the house?

 

[Zigner]

And also what about everything that was his inside the house?

Why are you so hell-bent on sticking it to the grieving widow?

 

[Michael Blalock]

Oh I'm not at all. As far as I'm concerned she can have everything in the house. If it were up to me right now I'd ask her what she wants. I'm not trying to gain anything out of this at all. I am actually seriously happy she gets to keep the house as it's paid for. I'm just asking so I know since the situation is complicated in case anyone else has issues. I guess I can see why my questions lead you to that conclusion though. I should have thought of it before I posted this way without preface I guess. I want to see her with it and have her stay since that is what he wanted. My heart is good in this I swear. If you'd like you can continue assuming I'm a bad actor but I swear I am not. I don't want anything that was his and I love her as a sister. If the children want to go with their mother they can. Again I'm sorry I made it seem like I was out to get her.

 

[Michael Blalock]

Goodness I'm so disjointed my posts are a mess.

 

[Zigner]

Oh I'm not at all. As far as I'm concerned she can have everything in the house. If it were up to me right now I'd ask her what she wants. I'm not trying to gain anything out of this at all. I am actually seriously happy she gets to keep the house as it's paid for. I'm just asking so I know since the situation is complicated in case anyone else has issues. I guess I can see why my questions lead you to that conclusion though. I should have thought of it before I posted this way without preface I guess. I want to see her with it and have her stay since that is what he wanted. My heart is good in this I swear. If you'd like you can continue assuming I'm a bad actor but I swear I am not. I don't want anything that was his and I love her as a sister. If the children want to go with their mother they can. Again I'm sorry I made it seem like I was out to get her.

Thank you for clarifying this.
It would be very difficult to give a blanket statement on who gets what. I'm not trying to avoid the question, rather, the fact is that certain things (furniture, appliances, etc.) will almost definitely go to the wife without question, while other items might or might not, depending on the circumstances of their acquisition.

 

[zddoodah]

He claimed they actually did marry, and his son has told me he was at the courthouse when they went in to do it and saw the certificate afterwards, so that seems true.

No it doesn't. What you meant to write is that you want to and do believe that a legal marriage occurred. Maybe it did; maybe it didn't.

But since she is not yet legal can the house actually go to her?

Yes.

And how did she get put on the deed in the first place if not legal?

I'm at a loss to understand why you think her immigration status has any bearing on her ability to hold title to real property.

He had occupational accident insurance through his job, which he was on when he died, but oddly his wife wasn't listed as a beneficiary, and he is listed as single, but everything I know leads me to believe they actually did get married, so I'm guessing that's just an error from somewhere but I don't know. How will this get settled?

Depends on whether your belief about the existence of the marriage is warranted. I suspect the insurance company will only pay the death benefit (1) if the "wife" produces evidence of a legal marriage; or (2) to the executor of the estate of the deceased. The "wife" needs to be speaking with a local probate attorney about this.

The children's biological mother is in very bad health and another stroke/seizure could kill her. It is very likely she will let us take custody of the children. What do I need to know about getting custody of the children, what do the authorities check on concerning us in the process, etc.

You and your spouse (who I assume is the sibling of the deceased) need to speak with a local attorney about obtaining a legal guardianship. If the mother supports the guardianship, it is unlikely that any "authorities" will become involved.

I was reading about the intestate succession process and it says something like his property gets divided between his current wife (one third) and his gets (who get two thirds). I'm guessing if her claim to the title is somehow valid, she'll simply get the house. If not, will it be sold and the money divided between the wife and the children?

Not sure what "his gets" means. However, if the "wife" is on title, she may succeed to full ownership without the need for probate. Depends on how the joint title is set up. It's possible that she could end up owning the property jointly with the children.

what about everything that was his inside the house?

It could be very complicated. If he owned things that are not marital property, then they are part of his estate and likely would need to be liquidated to pay the debt you mentioned (or otherwise distributed between the heirs).

None of this is DIY, and your issue as potential guardian for the children is completely separate from the "wife's" issues relating to property. As noted above, you need to consult with a local attorney, and so does she. Different specialties, so different attorneys.

 

[justblue]

@zddoodah "gets" is an old timey and rather nasty term for ones children.

 

[Michael Blalock]

@zddoodah "gets" is an old timey and rather nasty term for ones children.

Funny but that was a phone swipe typo and completely unintended.

 

[flyingron]

Insert "tenancy by the entirety" for "joint with right of survivorship" in Virginia. The results however are the same in this situation.

 

[adjusterjack]

He claimed they actually did marry, and his son has told me he was at the courthouse when they went in to do

Easy enough to check marriage records at the courthouse.

But since she is not yet legal can the house actually go to her? As for the house, can it go to her since she is on the deed even though she is illegal?

One doesn't have to be a citizen or resident of the US to own property in the US.

He had occupational accident insurance through his job, which he was on when he died, but oddly his wife wasn't listed as a beneficiary,

If no beneficiary is listed on the policy then the death benefit goes to the estate.

I don't see anything in the statute "titles" that suggests otherwise.

Code of Virginia Code - Chapter 31. Life Insurance

Unfortunately, once the estate has the money, the money goes to pay the debts of the estate before any of it goes to heirs.

The children's biological mother is in very bad health and another stroke/seizure could kill her. It is very likely she will let us take custody of the children. What do I need to know about getting custody of the children, what do the authorities check on concerning us in the process, etc.

You will probably need to go to court to get guardianship.

And also what about everything that was his inside the house?

She is presumed to own everything in the house unless there is evidence otherwise. For example, suppose he bought $20,000 worth of furniture before he got married and an invoice exists that is made out in his name. That furniture could thus be his sole and separate property and might have to be probated and sold to pay down his debts. You might want to ignore the issue of the home's contents lest you open a can of worms.

By the way, have you, or anybody else, gone to court and been appointed representative of the estate?

You, or somebody, needs to do that before anything gets done with the estate's assets (except the house).