We have all heard the proverb, “Where there's a will, there's a way.” But, have you ever wondered what happens where there isn’t a will? Specifically, what happens if you die without a will in Virginia?
Jump ahead to these sections:
- Virginia’s Intestacy Laws Explained
- How Does Probate Work in Virginia If There Is No Will?
- Who Typically Inherits Assets in Virginia If There Isn’t a Will?
- Frequently Asked Questions: Dying Without a Will in Virginia
Okay, so maybe we are talking about a different kind of will than the proverb. Notably, when we say will we mean a legal document that expresses your wishes for how your property is to be distributed upon your death. We are not talking about the will necessary for getting something done.
Only you can decide if you need a will (the legal document). If you have a will, then you have a way for distributing your property when you die. If you don’t have a will, then this article is for you. Read on as we discuss what happens if you die without a will in Virginia.
Virginia’s Intestacy Laws Explained
A person who dies without a will is said to have died intestate. If a person dies intestate, then the intestacy laws of the state where the deceased person resided control what happens to their property. Intestacy laws may also apply in other circumstances such as when a will is invalid.
If a person dies without a will in Virginia, then Virginia intestacy laws will dictate what happens to their property. If you die without a will in Virginia, what happens to your property will depend largely on the following factors:
- The value of your property
- The type of property you own (whether personal or real)
- How you held title to the property
- Whether or not you have a surviving spouse and/or children
How Does Probate Work in Virginia If There Is No Will?
In Virginia, probate is the “official proving of the will as the authentic and valid last will and testament of the deceased.” Obviously, if a person does without a will then this is not necessary. However, regardless of whether or not there is a will, the same court or clerk has jurisdiction over the right of administration of the intestate estate. Administration of the estate is the term for handling the intestate estate. It encompasses the duties of the court-appointed administrator.
If a person dies without a will, the court will appoint an administrator to administer the estate. The administrator has many responsibilities including the following:
- Taking control of the deceased’s person’s property
- Determining the debts of the estate
- Overseeing the payment of the deceased’s debts and taxes
- Filing an inventory of the estate
- Distributing the estate’s property in accordance with the laws of Virginia (discussed in more detail below)
- Accounting duties (annually if necessary)
Administration responsibilities take a lot of time and effort. They can also be confusing and even overwhelming when dealing with the loss of a loved one. If you have questions about your role as an administrator, you should contact a probate attorney. A probate attorney can answer your questions and assist you with the administration process.
Keep in mind that not all property must pass through probate. Some property automatically transfers ownership upon the deceased’s death and therefore is not subject to probate. Examples of property that does not go through probate include the following:
- Vehicle titles with a designated beneficiary
- Joint accounts with right of survivorship
- Life insurance proceeds with a named beneficiary
- Real estate held jointly with the right of survivorship
Small asset estate
As discussed above, the administration process can be time-consuming, and in some instances, unnecessary. When an estate is a small asset estate, an heir can collect and distribute the estate assets without going through the formal probate process.
In Virginia, a small asset means any asset that can be distributed “having a value, on the date of the decedent's death, of no more than $50,000.” It does not include real property. To claim the asset the heir must provide an affidavit affirming certain statutory requirements. This process is meant to save everyone time when handling an estate.
Virginia has even more efficient methods for handling even smaller estates, those valued at $25,000 or less. These estates can be handled without an affidavit. Under Virginia law, if the asset is valued at $25,000 or less, payment or delivery may be made without an affidavit, as long as other statutory requirements are met.
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Who Typically Inherits Assets in Virginia If There Isn’t a Will?
One step of the administration process discussed above is the distribution of the deceased’s estate. If a person dies without a will in Virginia, the administrator must distribute assets in accordance with Virginia’s intestacy laws.
In Virginia, who typically inherits assets if there isn’t a will depends on whether the deceased had a surviving spouse and/or descendents. A person’s surviving spouse is their current spouse that is still alive. Descendents are a person’s lineal descendants including their children and grandchildren and so on.
In Virginia, intestate succession is the same for real estate and personal property. The entire estate goes to the surviving spouse of the deceased, unless the deceased is “survived by children or their descendants, one or more of whom are not children or their descendants of the surviving spouse.” If this happens, then the surviving spouse gets one-third of the estate and the remaining two-thirds goes to the deceased’s children and their descendants.
If you have questions about your rights as a spouse under Virginia law, you should consult with an estate planning attorney.
In Virginia, if there is no surviving spouse, then the estate passes to the following in the following order:
- The deceased’s children and their descendants
- If there is none of the foregoing, then to the deceased’s surviving parent(s)
- If there is none of the foregoing, then to the deceased’s siblings, and their descendants
- If there is none of the foregoing, then one-half of the estate goes to the kindred of one of the deceased’s parents and other half goes to the kindred of the other of the deceased’s parents in the following order:
- Uncles and aunts and their descendants
- Grandparent’s siblings and their descendants
- It continues on to the nearest lineal ancestors and the descendants of such ancestors
If there are none of the above, the estate continues to pass to relatives. In some instances where there are no relatives to inherit property, then the estate may go to the State of Virginia.
If you believe you are entitled to inherit all or some of an estate, you should contact the estate administrator immediately. You may also need to talk to a probate attorney who can answer your questions and guide you through the probate process.
Frequently Asked Questions: Dying Without a Will in Virginia
No two deaths are alike. However, when a person dies without a will, common questions can arise. Here we will answer frequently asked questions about dying without a will in Virginia.
What happens when your parent dies without a will?
Thinking about the death of a parent can be difficult. Trying to wrap your mind around what happens next can be even more of a challenge. If your parent had a will, then their will may provide some guidance regarding their estate.
However, if your parent dies without a will in Virginia, then Virginia intestacy laws will determine what happens next. As we have already discussed, what happens will depend largely on whether or not your parent had a surviving spouse and how they are related to your parent’s descendants. If your parent dies without a surviving spouse, then the entire estate would go to you, your siblings, and descendants.
If you are concerned about what will happen when your parent dies, then now is the time to have an open discussion with them about end-of-life planning. The Cake website has resources to help guide you through the conversation.
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What are a surviving spouse’s rights if there’s no will?
In Virginia, the surviving spouse’s rights are determined by state law if there is no will. A surviving spouse is entitled to certain allowances and exempt property which will be discussed below.
These allowances and exemptions are in addition to the assets that we discussed in the earlier section on inheriting assets. As we discussed in that earlier section, the surviving spouse’s right to the estate varies based on whether or not the deceased is survived by descendants who are not descendants of the surviving spouse.
If you have questions about your rights as a spouse, you should consult with an experienced estate planning attorney. They can answer your questions and give you legal advice.
Are there any probate exemptions if you die without a will in Virginia?
Probate exemptions are property not subject to the claims against the estate. Exemptions may also have priority over other claims. This means that the exemption would get paid out first from the estate. This is important in estates where there are limited funds.
In Virginia, there are a few exemptions that the surviving spouse and/or minor children may be entitled to that will be discussed below.
In Virginia, the surviving spouse and minor children are entitled to “a reasonable allowance in money out of the estate for their maintenance during the period of administration.” This allowance is not to exceed $24,000.
In addition to the family allowance, the surviving spouse (or minor children if there is no surviving spouse) is entitled to property not exceeding $20,000. This exempt property includes the following:
- Household furniture
- Personal effects
In Virginia, in addition to the family allowance and exempt property, the surviving spouse is also entitled to a homestead allowance of $20,000. If there is no surviving spouse, each minor child of the deceased is entitled to an equal division of the homestead allowance.
If you are concerned about providing for your spouse or children after you are gone, then you may want to meet with an experienced estate planning attorney. An estate planning attorney can discuss your concerns with you and help you create an estate plan to meet your needs and the needs of your family.
Who is considered next of kin in Virginia?
What do you think of when you hear next of kin? Next of kin is often used to refer to a person’s closest living relatives. In estate matters, next of kin means those entitled to inherit assets under Virginia law. As discussed above this can include the deceased’s surviving spouse, descendants, parents, siblings, and grandparents.
What’s Your Way?
Now that you know that even without a will there's a way to distribute assets, you can start to think about your preferred way to distribute assets after you are gone. Deciding the way that you want to dispose of your assets after your death is one of the central focuses of end-of-life planning.
End-of-life planning involves more than just assets. It can involve funeral plans, guardianship, and other personal matters. All of these plans and more can be created and saved utilizing the Cake planning platform. The platform gives you and your loved ones 24/7 access to your plans. Use Cake to start planning your way today.