Settling the estate of a loved one after they pass away is complicated and emotional, even when they have a will. For families whose loved one dies without a will, the probate process and allocating their assets becomes even more complex.
Dying without a will
A will outlines how you want your assets distributed upon your death, names the individual who will handle your estate, and elect a guardian for your minor children.
If someone dies without a valid will, it’s called dying “intestate.” They still have an estate that must be distributed to their heirs, but rather than being distributed according to their wishes, their assets will be subject to Virginia intestacy laws in the probate court.
Dying intestate also means that you won’t have control over who manages your estate or who will raise your minor children.
It’s important to note that if someone had a will present but it’s deemed invalid, it’s unenforceable and the deceased’s assets will be handled as if they didn’t have a will.
Virginia’s intestacy laws
Code of Virginia § 64.2-200, governs the Virginia Commonwealth’s intestacy laws and determines the law of succession or the order in which the deceased’s legal (blood or adopted) relatives will inherit.
Who’s entitled to inherit the deceased person’s property?
The deceased’s surviving spouse inherits the entire estate unless the deceased is survived by children and grandchildren that aren’t children of the surviving spouse. For example, the deceased has children with his first wife, they divorce, and he remarries but doesn’t have children with his second wife. In this case, the estate would be divided as follows:
- 2/3 to the children from his first marriage
- 1/3 to his widow
If the deceased doesn’t have a surviving spouse, then the estate passes to their children and descendants.
If there isn’t a surviving spouse or children, then the intestacy laws permit the following relatives to inherit (in order):
- Parents or surviving parent
- Siblings and their descendants
If the deceased had none of these family members survive them, then half the estate goes to the kin on one parent’s side, and one-half going to their kin on the other parent’s side.
Role of the probate court in intestacy cases
A probate judge assigns an estate administrator, who will play the same role as the executor of the will. The estate administrator represents the estate – not the heirs – and is responsible for inventorying and valuing its contents, settling valid debts, and then distributing the remainder of the estate according to Virginia’s intestacy laws.
The probate court also approves each transaction the estate administrator makes on behalf of the estate, from settling debts to allocating assets.
How to avoid the intestacy process
State law is clear about who inherits intestate assets. Ensure your loved ones are not left trying to navigate the intestacy process by putting a comprehensive estate plan in place with one of our Fairfax estate planning attorneys.
Our skilled estate planning attorneys are ready to help
If you’re worried about not having your estate plans in order, contact Select Law Partners PLLC today at (855) 541-4867 to schedule a consultation with an experienced estate planning lawyer.
