Passing away without a will can lead to significant unintended consequences. In Virginia, the absence of a will means that the distribution of your estate is governed strictly by the state’s intestacy laws, not by your personal wishes. This situation can potentially create expensive and lengthy disputes among family members over your assets and the appointment of an estate administrator by the court. More concerning is the possibility that those who end up inheriting your estate may not be the individuals you would have chosen.
While trusts and advance directives are also an essential part of a comprehensive estate plan, a will remains an indispensable component. It provides a clear and legally binding directive for the distribution of your assets to beneficiaries of your choosing, ensuring your wishes are carried out after you pass.
For those without a will, it’s critical to understand the implications of dying intestate. In this blog, we’ll share what you need to know about inheritance laws in Virginia and what the absence of a will in your estate plan means for the management and allocation of your estate.
If you have questions about including a will as part of your estate plan, contact us at (703) 865-6100 to schedule your consultation with a member of our Virginia estate planning attorney team. At PJI Law, you’ll receive personalized service and attention.
Glossary of Terms
Before delving into the specifics of Virginia’s intestate succession laws, it’s important to be familiar with some key terms we’ll be using throughout the blog.
| Term | Definition |
| Administrator | A person appointed by the court to manage the estate of someone who died intestate |
| Beneficiary | A person named in a will to receive a part of the deceased’s estate |
| Decedent | The legal term for a person who has passed away. Often used interchangeably with “deceased,” which is a more general term with the same meaning |
| Escheat | The process by which a deceased person’s estate is turned over to the state if no heirs can be found |
| Estate | All property, assets, and debts left by an individual at death |
| Executor | A person appointed in a will to administer the deceased’s estate. They’re responsible for ensuring the will’s instructions are carried out |
| Heir | A person legally entitled to receive a share of the deceased’s estate under intestate succession laws |
| Intestate Succession | The condition of dying without a valid will. In such cases, Virginia’s intestate succession laws determine the distribution of the estate |
| Per Stirpes | Per stirpes ensures that each branch of the family tree receives an equal share of the inheritance, regardless of whether any beneficiaries have died before the testator |
| Probate | The legal process through which a deceased person’s will is validated and their estate is administered |
| Probate Tax | A tax levied on the estate as it goes through the probate process |
| Testate | The condition of dying with a valid will. The will dictates how the estate should be distributed |
| Testator | A person who has made a will |
| Will | A legal document in which a person specifies how their estate should be managed and distributed after death |
The Critical Importance of Having a Will
The presence or absence of a will (testate vs. intestate) significantly impacts estate distribution. A will offers control and clarity, while dying without one leaves the distribution of assets up to the state’s intestacy laws. These laws determine who inherits, but may not reflect the decedent’s personal wishes, emphasizing the importance of proactive estate planning.
Probate in Virginia varies depending on whether the decedent had a will. When a person passes away without a will, known as dying intestate, their estate is subject to the state’s intestate succession laws. These laws dictate the distribution of assets and property among a hierarchy of relatives and entities.
Having Trusts Doesn’t Mean You Don’t Need a Will
Even if you have trusts set up with beneficiaries, having a will is still important for several reasons:
- Distributing Assets Not Held in Trust: A will can be used to distribute any assets that are not held in your trusts. This could include assets such as real estate, personal belongings, and bank accounts.
- Appointing Guardians for Minor Children: If you have minor children, a will can be used to appoint guardians for them in the event of your death. This will ensure that your children have someone to care for them and make important decisions on their behalf.
- Naming an Executor: A will can be used to name an executor, who is responsible for managing your estate after your death. This includes tasks such as paying your debts, distributing your assets, and carrying out your wishes as expressed in your will.
- Providing Clarity and Certainty: A will provides clarity and certainty regarding your wishes for the distribution of your assets. This can help to avoid disputes among your heirs and ensure that your wishes are carried out as intended.
- Addressing Unexpected Circumstances: A will can be used to address unforeseen circumstances, such as the death of a beneficiary or a change in your family situation.
- Completing Your Estate Plan: A will is an essential part of a comprehensive estate plan. It works together with your trusts to ensure that your
assets are distributed according to your wishes and that your loved ones are cared for as you would want them to be.
Even if you have trusts set up, a will is still an essential document that can help to protect your assets, ensure your wishes are carried out, and provide peace of mind for your loved ones. So what happens if you die without a will? Let’s take a look at the probate process next.
Probate in Virginia: With or Without a Will
For those who pass away with a will, or testate estates, the probate process is generally more straightforward. A valid will guides the court in distributing the estate according to the decedent’s wishes. However, not all testate estates are handled identically. The nature of the estate determines the probate court’s approach.
Estates that exclude real estate and comprise personal property valued at $50,000 or less are classified as “small estates” under Virginia’s inheritance laws. Such estates can bypass the probate process altogether if 60 days have passed since the individual’s death. Conversely, larger estates must go through formal probate administration.
Understanding the difference between real and personal property is crucial in this context. Real property includes land and structures attached to it, like houses. Personal property, on the other hand, covers items like cars, furniture, electronics, jewelry, financial investments, and cash. Certain assets, such as insurance policies and Individual Retirement Accounts (IRAs), are not subject to probate and are treated separately. We’ll discuss this in more detail in a later section.
In the absence of a will, the court appoints an administrator to oversee the estate, prioritizing relatives of the decedent based on a specific order. This administrator is responsible for managing the estate’s debts and distributing the remaining assets as per the intestacy laws.
In all scenarios, an estate must first clear the deceased’s debts, including taxes, final expenses, credit bills, and other liabilities, before distribution to heirs. This responsibility falls on the executor (named in the will) or administrator (appointed by the court if there is no will).
Probate cases in Virginia, whether intestate or testate, are handled by the circuit courts in the county where the deceased resided, ensuring proper legal oversight and administration of the estates.
Overview of Intestate Succession in Virginia
Intestate succession laws in Virginia provide a hierarchy of beneficiaries, which is strictly followed in the absence of a will. These laws are designed to distribute assets to the closest relatives first, but the specifics can vary based on the deceased’s family situation.
Inheritance Rights of Spouses
Virginia’s inheritance laws grant significant rights to spouses in cases of intestate succession, aligning with the norms of many other states. In situations where the decedent leaves behind only a spouse and no children, the entirety of the estate is inherited by the surviving spouse. This provision also applies if all the decedent’s children are shared with the surviving spouse.
However, if there are surviving children from a previous relationship, the dynamics change. In such cases, the surviving spouse is entitled to only one-third of the estate, while the remaining two-thirds are distributed evenly among the children, following the principle of per stirpes distribution.
Inheritance Rights for Children
In Virginia, the inheritance rights for children vary based on the presence of a surviving spouse. If there is no surviving spouse, the entire estate naturally passes to the children. However, when a spouse survives, the distribution of the estate to children depends on their relationship with the surviving spouse. If there are only children shared with the surviving spouse they may not inherit, but if there are children from another relationship then the decedent’s children could receive up to two-thirds of the estate.
Virginia law does not differentiate between biological and adopted children regarding inheritance rights. Both are equally entitled to inherit from an intestate (without a will) estate. Grandchildren, however, do not have inherent rights to inheritance in the absence of a will, unless their parent (the decedent’s child) has passed away before the decedent.
A child conceived before but born after the death of a parent inherits as if they were born during the parent’s lifetime. This also holds true for children born via artificial insemination using the genetic material of the deceased.
If a decedent wishes to bequeath property to a stepchild or foster child, they must explicitly include them in their will.
Unmarried Individuals Without Children
For those who pass away without a will and leave no surviving children or spouse, Virginia’s intestate succession laws establish the order in which relatives inherit the deceased’s property. This process, known as intestate succession, aims to identify and locate any potential heirs within the deceased’s extended family, ensuring that the estate remains within the family lineage.
No Surviving Heirs
In rare cases where no family can be located, the estate escheats to the Commonwealth of Virginia. Additionally, creditors may have a role in estate administration if they seek to serve as administrators, particularly in cases where the estate owes significant debts.
Non-Probate Assets in Virginia
As mentioned in an earlier section, non-probate assets in Virginia are assets that can bypass the probate process, passing directly to your beneficiaries without going through the often time-consuming and costly probate proceedings.
Types of Non-Probate Assets
Non-probate assets can include a variety of asset types, such as:
- Real property owned by the decedent
- Life insurance proceeds
- Investment accounts
- Jointly titled real estate assets
- Retirement accounts
- Trust assets
- Payable on death or transfer assets
These assets can pass directly to your beneficiaries without going through the probate process, providing a more efficient method for transferring assets and minimizing the burden on your loved ones during a difficult time. Working with a skilled attorney ensures that your non-probate assets are properly managed and distributed according to your wishes.
Designating Beneficiaries
Designating beneficiaries for non-probate assets is crucial for ensuring a smooth transfer of assets and can help avoid potential disputes among heirs. Non-probate assets, such as life insurance policies, retirement accounts, and bank accounts, typically require a designated beneficiary form to be filled out and submitted to the relevant financial institution.
It’s essential to keep these forms up to date to ensure that the assets are transferred to the designated beneficiary. Taking the time to designate beneficiaries for your non-probate assets allows you to create a comprehensive estate plan that maximizes the value of your assets and provides financial security for your loved ones.
Avoiding Unintended Outcomes
As you can see, dying intestate can lead to outcomes that might not align with your wishes. To ensure your assets are distributed according to your personal preferences, creating a will is vital. This provides clarity and direction for the distribution of your assets and can prevent potential disputes among family members. For further reading, we invite you to read our blog, “How to Create a Will in Virginia.”
For added control and flexibility, consider establishing a trust in conjunction with your will if you have not already done so. A trust can provide numerous benefits, such as asset protection, distribution to beneficiaries, and privacy. You can read more about trusts in our blog here.
Understanding Virginia’s intestate succession laws is crucial for estate planning and for those handling the estate of a deceased without a will. These laws dictate who inherits in various family scenarios, emphasizing the importance of having a will to ensure your assets are distributed according to your wishes. For tailored legal advice, especially when dealing with complex family situations or significant assets, consulting with a Virginia estate planning attorney is advisable.
Secure Your Legacy and Honor Your Wishes with PJI Law
Navigating the complexities of estate planning and intestate laws in Virginia can be daunting, but with PJI Law by your side, you can craft an estate plan that precisely reflects your wishes and secures your legacy.
At PJI Law, we understand that each estate plan is as unique as the individual it represents. Our dedicated team of legal professionals combines in-depth knowledge of Virginia estate law with a personalized approach to ensure your estate plan is tailored to your specific needs and circumstances.
Whether you’re starting from scratch or need to update an existing plan, our commitment is to provide you with an estate plan that not only adheres to legal standards but also provides peace of mind for you and your loved ones.
Don’t leave your legacy to chance. If you’ve been searching online for a “estate planning attorney near me,” contact PJI Law instead. You can reach us by calling (703) 865-6100 or filling out our online form to schedule your consultation in Fairfax, Virginia. Let us help you create an enduring and effective estate plan that honors your wishes and protects your loved ones from Virginia’s inheritance laws.
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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.
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