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.