Virginia Inheritance Laws: What Is Your Family Entitled to After You Die?

probate court judge signing paperwork

Virginia Intestate Succession |

If you die away without a will, this is known as “dying intestate.” The terms “intestate” and “testate” come from the longer name given to wills, which is a “Last Will and Testament.” So, if you pass away with a will, this is known as “dying testate.”

Dying without a will has serious consequences and means that the people who inherit your estate will be controlled entirely by Virginia’s intestacy statute, not you. It also opens the door for costly and drawn-out fights between your family members over your assets and over who might serve the role of administrator of your estate. Worse yet, the individuals who inherit from you may not even be those you ever intended to receive your assets.

That’s why it’s crucial to create a comprehensive estate plan, including a will, and update you will consistently throughout your life as your circumstances and wishes change. That way, you’ll have more control over what happens to your money and property after you’re gone.

If you don’t currently have a will, here’s what may happen if you die without having prepared one.

What is the probate process if you die without a will?

For decedents in Virginia without a will, the Commonwealth’s laws of intestate succession apply to any and all property or assets owned by that person. These laws dictate a specific “pecking order” of relatives and/or entities in line to receive all or some of the decedent’s estate.

Keep in mind that your estate will still be subject to the probate process even if you have a valid will at the time of your death. However, this process is generally much smoother, as the court can simply refer to your will and empower your named executor to settle debts and distribute assets to your beneficiaries.

Virginia’s inheritance laws also include a probate tax, which is currently a $1 state tax and $0.33 local tax for every $1,000 within the estate. Regardless of whether there’s a will, unless you follow the advice of an experienced attorney on how to avoid probate, your assets passing through the probate process cannot be distributed to any beneficiaries or heirs until your debts are paid, including taxes, court fees, credit card debt, and more.

Virginia intestate succession laws

Here’s a brief overview of Virginia’s current distribution scheme for persons dying without a will:

If you’re married

Spouses of deceased individuals have many inheritance rights — especially if there are no children involved. Even if you have children together, your spouse will inherit your entire estate, so long as all children were born of your current marriage.

However, if you have children born or adopted by you from a prior relationship, your spouse will only receive one-third of your estate, with the remaining two-thirds evenly divided among your children.

If you have children, but no spouse

If you do not have a surviving spouse but have children, those children will inherit your entire estate, regardless of whether they’re biological or adopted.

Inheritance rights do not exist for your stepchildren or foster children, regardless of how long they may have been under your care. To ensure they receive some of your assets, you’ll want to include them in your will.

If you’re unmarried and have no children

If you have neither a spouse nor children at the time of your death, your estate will be distributed accordingly:

  • Surviving parent(s): entire state to parent(s)
  • If no parents: estate split evenly between siblings
  • If no siblings: estate split evenly between nieces and nephews
  • If no nieces or nephews: estate split evenly between grandparents
  • If no grandparents: estate split evenly between aunts and uncles
  • If no aunts and uncles: estate split evenly between cousins
  • If no cousins: estate split evenly between great-grandparents
  • If no great-grandparents: estate split evenly between great-aunts and great-uncles
  • If no great-aunts and great-uncles: entire estate to ex-spouse’s family (if they died while married to you)

In cases where a decedent has no surviving heirs, ownership of their estate is transferred to the Commonwealth of Virginia (known as “escheatment”).  Your estate might also pass to the creditors of your estate, such as your mortgage company, if you owe money to a large creditor and they file with the court to serve as the administrator of your estate if no other person files and becomes qualified to do so on your behalf.

By creating a valid will, you can control and avoid the above outcomes and ensure your assets are controlled by and pass to the persons you would want to have them.

Draft a will to protect your assets and your family’s future

While all estates are subject to the probate process, taking the time to write and update your estate plan, including a will, makes it much easier for your family and loved ones, and much more likely that your exact wishes will be honored.

Need some guidance? Contact the Law Office of Patricia E. Tichenor to schedule a free consultation to discuss your estate planning goals and needs, from drafting your will or trust to preparing a financial or medical power of attorney setting up a trust.

Estate Planning Questions You Never Thought to Ask

estate planning attorney and client

Important Estate Planning Questions to Ask |

To say estate planning can cause stress is an understatement. When you sit down to plan for the unthinkable, you’ll find it can be emotional and downright confusing as you navigate the plethora of “what ifs.”

Many people postpone their estate planning for as long as possible as they may feel they are being faced with their own mortality. Some are afraid they won’t have all the bases covered when they do eventually pass away. Others are simply overwhelmed by the legal process of formalizing their wishes. However, asking the right questions will bring you peace of mind, knowing that your assets and family are taken care of.

Here are six estate planning questions you may have never thought to ask – but should.

What happens if my child’s appointed legal guardian passes away?

If your appointed guardian passes away before you, be sure to change the appointed guardian in your will to another person best fit for your child. It may also be important to discuss who they would appoint in their own will were they to pass away or become incapacitated with the child in their care. Keep in mind the court will appoint a guardian for your child if you do not do so; therefore, this is an especially important part of your estate planning if you have minor children.

Can a probate court overrule my will?

Probate is the process of authenticating your will, including distributing your assets and taking care of any debts owed. A probate court will also address any challenges to your will. For example, per Virginia law, disinheriting your spouse in your will won’t take away their rights to your estate, unless you have a signed premarital (prenuptial) agreement in place that is found legally binding and precludes them from inheriting from you unless you choose to make them a beneficiary.

The requirements in your last will and testament will vary from state to state, so if you own property or assets outside the Commonwealth of Virginia, be sure to discuss this with your attorney to find out how it may impact your estate plan and a future probate process at your death.  Using a trust plan rather than a traditional Will might be best for your estate plan to avoid costly probate taking place in more than one state as well as avoiding probate altogether.

What will happen to my digital accounts?

From social media (ex. Facebook, Twitter, LinkedIn) to your financial accounts managed on-line, it’s important to think about the future of your online accounts once you pass away. You may wish to carefully document and store all passwords in a safe place, and consider whether your executor should receive access to those passwords and accounts as part of their duties in settling your affairs.  A power of attorney is an ideal document to have in place if you become incapacitated, and it needs to be properly written in order to authorize your agent (also known as an attorney-in-fact) to manage your social media and financial accounts.

How long would I want to be kept on life support?

This is a question that may make you sweat in your seat, yet it’s a necessary one to ponder when estate planning. Documenting your preferences is helpful to your loved ones so they don’t have to make such difficult decisions on their own. Were a tragedy to happen, your preferences will be conveyed to health providers, giving your family peace of mind that your wishes are being met.

A medical power of attorney with end-of-life provisions (sometimes called “a living will”) clearly spelled out and naming a trusted friend or family member as your agent to make these decisions, in case you are no longer able to do so for yourself, is a key addition to any comprehensive estate plan.

Who will take ownership of my pets?

Many pet owners consider their animals as part of the family. However, this may not be the first question you’d think about when estate planning. You may wish to consider who would be able to give your pet a loving home if you pass away before them and want to be sure they are not placed in a “kill” shelter.

Today, states like Virginia have adopted statutes that allow you to create a Pet Trust for your pets’ care and protection, into which you can place funds as well as detailed care instructions for the person you name as the Trustee of that trust.  An experience estate planning attorney can also discuss additional documents or options available to protect your pets, not only at the time of your death but, also, during a period of incapacity.

Who would I want to be my power of attorney?

Power of attorney gives you the ability to name someone to make decisions for you if you were incapacitated or unable to speak for yourself. You also have the option to choose someone as a medical power of attorney solely for medical decisions, or a financial power of attorney for financial decisions. Whomever you choose, it should be someone you trust to make the best decisions for you, your family, and your assets.  Lastly, you may want a kind of “power of attorney” for the protection of your minor children if you (and the other parent) are both incapacitated (but not dead) and unable to care for them during a period of recovery, and, in Virginia, that document is called a Designation of Standby Guardian.  Think of this final document as a way to avoid a foster care event for your child and the process of a Department of Family Services investigation/home visit and approval process to approve a family or non-family member to serve as a foster or guardian of your child.

Have more estate planning questions? An experienced attorney can help.

Estate planning does not have to be as confusing or intimidating. The right attorney can make it empowering and use their experience to help you answer questions you might never have thought you’d have to ask. Attorney Patricia E. Tichenor and the Law Office of Patricia E. Tichenor have nearly two decades of experience helping Virginia residents with estate planning matters. Contact us to discuss your circumstances so we can help you tackle these difficult questions.

How to Choose an Executor for Your Will

man signing last will

How to Choose an Executor for Your Will |

When you pass away, your executor is the one who will legally tie up any loose ends. They will typically handle of any or all of the following responsibilities:

  • File court documents for the probate process
  • Fulfill the distribution provisions contained in your will for any beneficiaries
  • Pay estate’s final bills, debts, and taxes
  • Notify the government, banks, and creditors of the death
  • Secure any assets for minors or an incapacitated beneficiary if immediate distribution to them cannot be made (commonly with trust provisions or custodial bank account provisions contained in the will)

Choosing an executor is an important decision, and it shouldn’t be taken lightly. This person should be someone with whom you have a strong relationship with and can trust to honor your wishes once you pass.

There are many questions you’ll have as you decide on an executor for your will, some of them obvious and some not. To give you some peace of mind as you make this choice, here are a few things you’ll want to consider.

Who can I trust?

Many believe the most important quality in an executor is financial and legal intelligence. However, no amount of intelligence matters if you’re not sure you can trust someone. Would you have confidence in this person to pay back a large amount of money you loaned them? Are they responsible and make good decisions in their own life? If you have a hard time answering yes, you may need to look elsewhere.

Be sure to appoint someone who is honest and can responsibly hire the right people to take care of your wishes. You need someone who you trust with your life to trust in death.

Do I have to pick family?

While the most obvious choice may be a close loved one, such as your spouse or oldest child, heavily consider if it is the right choice. No matter how strong your relationship, if you have difficulty relying on someone or they aren’t in good financial standing, they may not be the best person to support your needs after you’re gone – and it’s okay not to choose someone because of that.

Another factor in choosing family is age and health. If you don’t have someone in your family who you believe will outlive you or isn’t in good enough health to carry out these responsibilities, than you may want to consider looking outside of family.

What about a third party?

If you’re having a hard time choosing a family member or friend, another option is to appoint a bank, trust, or a professional estate executor to handle your affairs. These are business or legal professionals who will educate and engage you on the steps of executing your will and bring you into the process.

Keep in mind that hiring a professional will incur additional costs and fees: While a family member often takes on the executor role on a volunteer or reimbursement basis, a third party will expect compensation for their services. However, it may be worth the investment if you believe having a neutral party as your executor will keep the peace within your family after you’re gone.

How do I get someone’s approval to name them as my executor?

Whether you chose family or a third party, it’s strongly recommended that you ask their permission before you name them in your will.

If you’re choosing a family member or friend, sit down with them to review your current will and financial status so everything is clear. And as time goes on, continue to update them with any changes so they can stay up to date on your final wishes.

Have more questions about choosing an executor? Consult an experienced estate planning attorney.

Ensuring your affairs will be taken care of after you’re gone can be challenging. An estate planning attorney will review the process with you, discuss your options, and see if the person you have in mind as your executor is truly the best option for you.

The Law Office of Patricia E. Tichenor, P.L.L.C. has nearly two decades of experience helping Virginia residents with their estate planning needs. We’re here to listen and discuss your needs with you to take the next steps.

Contact us to discuss your circumstances so we can help you choose the right executor for your will.

What Can I Cite as Grounds for Divorce?

couple filing for divorce

What Are the Grounds for Divorce in Virginia? |

Whenever a couple files for divorce, they’re required to cite “legal grounds,” or the reason they want to dissolve their marriage. These grounds can be fault-based, where one or both parties has done something wrong, or no-fault, where the parties fulfill the requirement to remain separate and apart from each other for a required period of time set by statute (see more below).

Fault-based grounds for divorce in Virginia

If you believe your spouse is guilty of marital misconduct and have the appropriate proof to present to the court, you may be able to use their actions as grounds to file for divorce. Depending on your grounds, you may be granted a divorce from bed and board or a divorce for the bond of matrimony.

Grounds for a divorce from bed and board (partial divorce)

In Virginia, a divorce from bed and board (a mensa et thoro) legally separates you from your spouse. With sufficient proof, this type of divorce may be filed and granted immediately, but neither you nor your spouse may remarry. One year after you’ve received a divorce from bed and board, you can ask the court to merge this decree into an absolute divorce from the bond of matrimony (a vinculo matrimonii).

1. Willful desertion or abandonment

If your spouse has left the marital home and willfully deserted you and/or your family for at least one year, you can file for a fault-based divorce on these grounds. You’ll need to prove that your spouse intended to abandon you – in other words, separation by mutual consent or leaving because of spousal cruelty does not count as desertion. Whatever the details, present this information in your case to the court to cite desertion and/or abandonment.

2. Cruelty

If your spouse causes you reasonable fear of bodily harm, you can cite “cruelty” as grounds for a fault-based divorce. If you’ve been on the receiving end of threats or acts of physical violence, be sure to document these threats and acts so you can demonstrate to a judge that you feel unsafe in your marriage.

Grounds for a divorce from the bond of matrimony

A divorce from the bond of matrimony is absolute and final, and both spouses are free to remarry after the final order of divorce is granted. Here are the two fault-based grounds you may cite for this type of divorce:

2. Adultery, sodomy, or buggery

Extramarital sexual relations in the form of adultery, sodomy, or buggery (bestiality) can be cited as grounds for your divorce.

To get a divorce based on adultery, you will have to solidly demonstrate to the court that your spouse had or is having sexual relations with another person. Proving an affair can be difficult, so you’ll want to work with an attorney to build your case and gather sufficient evidence.

Keep in mind that divorce will not be granted on the grounds of adultery or sodomy if you continued to maintain a relationship with your spouse after learning about the affair. For instance, if you knew your partner was unfaithful and tried to “work things out” while still living or romantically interacting with your spouse, you can’t cite this misconduct for your fault-based divorce.

2. Conviction of a felony

If your spouse commits and is charged with a felony, you may cite their conviction as grounds for a fault-based divorce if they are sentenced to more than one year of confinement. To do so, you’ll need proof of your spouse’s conviction and sentence, and agree to not resume cohabitating with your spouse after their confinement.

No-fault divorce in Virginia

If you simply find yourself out-of-love and/or incompatible with your spouse and there’s been no marital misconduct, you may choose to file a no-fault divorce from the bond of matrimony, also called a separation divorce. In this case, the grounds for divorce are typically cited as “irreconcilable differences,” meaning no amount of therapy, counseling or effort from the parties can mend the relationship.

In Virginia, couples can file for this type of divorce if they have met the minimum separation requirements: You must have lived “separately and apart without any cohabitation” for one full year and one day (if you have minor children together) , or for a full six months and one day (if you have no minor children and a signed marital settlement agreement).

No-fault divorces are often easier because if you are able to work everything out in your settlement agreement — including the division of marital assets and debts, and child custody/visitation arrangements, if applicable — you may not have to appear before a judge. To make the process as smooth as possible, follow our tips for drafting your agreement with your spouse.

No matter how “done” you might feel with your marriage, it can be difficult and painful to close this chapter of your life. By fully understanding your options and determining your legal grounds for divorce, you can begin the separation process and start moving toward a new future.

Get help with your Virginia divorce

If you are seeking a divorce or need to draft a settlement agreement, we recommend consulting an experienced attorney to help you.

The Law Office of Patricia E. Tichenor has nearly two decades of experience helping Virginia residents with family law matters, including settlement agreements and divorce cases. Contact us to discuss your circumstances so we can help you take the first steps in your divorce process.

Common Divorce Questions You’ll Want to Ask Your Attorney

meeting with attorney

Common Divorce Questions to Ask Your Attorney |

Marriages can sometimes end amicably, making divorce a relatively simple and clean process. However, many divorces can be painful, expensive, and complex.

Once you’ve agreed to divorce, you and your spouse will have to navigate the murky waters of settlement agreements, court documents, alimony/spousal support arrangements, and child custody/support, if you have minor children. To ensure you’re following the proper legal procedures – and that you have a positive and mutually beneficial outcome – you should seek the services of a qualified divorce attorney.

You can start this process by setting up an appointment with an experienced divorce lawyer in your local area. Your attorney will act as your guide and advocate, and the initial consultation is the best time for you to clear up any uncertainties or concerns you might have. Here are some common divorce questions you’ll want to ask when you meet with your attorney.

1. Are we eligible to file for divorce right now?

According to Virginia’s divorce laws, couples filing for a no-fault divorce must have been separated for 12 full months if they have minor children, or six full months, with no minor children and a signed settlement agreement. However, the rules and timelines are different if you are filing for an at-fault divorce on grounds such as adultery, cruelty, or desertion. Your attorney will be able to tell you how soon you can file for divorce.

2. Who will get custody of our children?

For couples with minor children, determining custody arrangements can be one of the messiest parts about divorce. If you and your spouse can’t reach an agreement on your own, a judge will have the task of deciding what’s in the best interest of your minor child(ren). Many factors are considered here, so you’ll want to ask your divorce attorney what your options are regarding custody, and what a judge will take into account. Your attorney can help you understand the most likely outcome given your unique situation, and can guide you in choosing which battles to fight and which to concede.

3. Do I have to pay (or will I receive) alimony/spousal support?

The amount of spousal support you may request (or will have to pay) is highly dependent on your individual circumstances. Your custody arrangements (if minor children are involved) and who earns the majority of income in your household can have an effect on your outcome. Ask your divorce attorney early on what you should expect to pay or receive, so you can plan your finances accordingly.

4. How do we split our assets?

If you and your spouse did not sign a prenuptial agreement, you may not know how to fairly split your assets in your impending divorce. Dividing marital property can be complicated, and if you and your spouse can’t reach an amicable, mutually beneficial agreement, you may need to bring this question before a judge. If there is a dispute over who should receive which assets, your attorney can help you better understand your chances of a favorable ruling.

5. What should I expect during my divorce hearing?

If you haven’t been through a divorce before, the idea of appearing before a judge to sort out your issues could be intimidating. Ask your divorce attorney what to expect in the preparation of a hearing, including what information you should have ready to present. Although no two cases are alike, your divorce lawyer should be able to provide you some idea of what will occur.

6. Do we really have to go to court?

A no-fault divorce can result in an amicable split without any divorce hearings in court. The first step in this process is drafting a marital settlement agreement. This document requires you and your spouse to decide how you will divide property, who gets primary custody, and the amount of spousal or child support to be paid, if any is needed. An experienced divorce attorney can help you craft this document and review it to ensure it’s fair for both parties.

Contact the Law Office of Patricia E. Tichenor for help with your divorce.

Whether you’re just beginning the separation process or you’re ready to file for divorce, the Law Office of Patricia E. Tichenor can help. We’ve spent nearly two decades helping Virginia residents with settlement agreements, divorce cases, and other family law matters. Contact us to discuss your situation and begin the divorce process.

The Law Office of Patricia E. Tichenor, P.L.L.C.
Professional Legal Services or Legal Representation
(703) 669-6700


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