Having a valid, signed Will is incredibly important in case anything unexpected happens to you. This document outlines instructions for how to preserve, manage, and distribute your property and assets after your death.

Dying without having a Will in place, also known as dying intestate, could have major consequences for your loved ones and may result in your assets being mismanaged, or certain assets not being passed down to your intended beneficiaries.  Here’s a brief overview of what happens when you die without a Will in the Commonwealth of Virginia.

What are the consequences of dying without a Will?

If you have not legally arranged for your assets to be passed to your loved ones, there can be serious and a potentially negative impact on them. Your assets may be given to people you never intended to receive them.

Your family may also incur costly and avoidable out-of-pocket expenses, including the costs of a bond, legal fees, and hefty probate taxes, as well as a variety of administrative headaches that could otherwise be avoided with proper estate planning. A sudden death without a Will can also cause tension within the family over who is responsible for your estate and what assets are distributed to whom.

How does the court handle probate without a Will?

Probate is the court process that supervises and ensures that the wishes set forth in a person’s Last Will and Testament are carried out.  The executor named in the Will, who is typically a family member or legal appointee, is appointed to sort out the decedent’s assets, pay any applicable taxes and debts on their behalf, and then divide the remaining assets to the named beneficiaries in the Will.

Even with a valid Will, the probate process can take a long time to complete. That time is extended if a person dies without a Will, as the court must supervise a personal administrator to locate all your assets and determine all of your outstanding debts, and pay them, and only then determine who will inherit your remaining assets under a statute which determines all distributions based on a priority of blood relatives.

Should you pass away without a valid Will, your assets will be distributed by the court according to Virginia’s laws of intestate succession.

If you’re married

If you pass away with no Will and are married and have no children, your entire state will be inherited by your spouse. Those who pass away without a Will and are married with children born from a prior marriage will have one-third of their assets go to their current spouse and two-thirds of their assets go to their children from their former marriage.  If all of the children are born of the marriage, then your spouse will inherit your entire estate, and your children born of your marriage to your spouse will receive nothing.

If you have children, but no spouse

People who have children but are divorced or do not have a spouse will have their entire estate pass to their surviving children in equal shares.  Both biological and adopted children are entitled to the estate. However, stepchildren and foster children do not have inheritance rights. For them to receive any part of your estate, they must be explicitly mentioned in a Will.

If you’re unmarried and have no children

Those who have neither a spouse nor children who survive them at the time of their death will have their estate pass to their closest living relatives. First in line is a person’s surviving parents. If they have no parents, the estate is split evenly between siblings and continues to persons in your bloodline that you may never have intended to inherit from you.

This also means if you have an elderly parent who is using Medicaid to pay for long-term care, your failure to put a plan in place may result in them inheriting from you and being disqualified from their Medicaid coverage, and, in turn, losing their long term care unless they have enough personal assets from which to pay for their care until they are deemed to qualify again for Medicaid after a period of disqualification.

No heirs-at-law means your asset pass to the Commonwealth of Virginia

Finally, if a person dies without a Will has no surviving heirs-at-law under Virginia’s intestate succession statute, then the entirety of their estate will become the property of the Commonwealth of Virginia or otherwise be seized by the person’s creditors, which Virginia also allows to qualify as an administrator of a person’s estate if no one else seeks to be appointed for that person’s estate within nine months of their death.

Protect your legacy with a valid Will

Everyone should draft a Will to protect their estate and assets and secure their family’s future. If you need some guidance in writing and preparing a Will or any other estate planning documents, the Law Office of Patricia E. Tichenor can help. Schedule a free consultation to discuss your estate planning goals and needs and get started on drafting your Will.