Dying Intestate – What Happens to Your Property if There is No Will

A Fairfax Estate Planning Attorney Discusses Virginia's Intestacy Laws

Oftentimes people—particularly younger individuals and couples—will delay planning their estate because they assume that in the event of their untimely demise, the laws of the Commonwealth of Virginia—as well as the laws of common sense—will somehow manage to make certain that their assets fall into the right hands. As northern Virginia estate planning attorneys who have written wills for multitudes of clients, we strongly advise against this laissez-faire approach. Whether you need to create an estate to ensure loved ones will be taken care of after your passing (ex. a spouse), or make sure an estate is completed and closed, we are here for you.

Course of Descents

The order in which your family members will receive property in the event that you die intestate (without a will) is governed by § 64.2-200 of the Virginia Code. The order is as follows:

• 1st To your surviving spouse. However, if you have children or grandchildren from another person, two-thirds of your estate will be divided among all of your children or grandchildren (regardless of parentage) and one-third will remain in possession of the surviving spouse.
• 2nd If there is no surviving spouse, then all of your assets pass to your children or their descendants.
• 3rd If you have no spouse or children, then the entire amount passes to your mother or father.
• 4th Brothers, sisters, and descendants are next if there is no one who falls into the above three categories.
• 5th If all other family members have been eliminated from the scenario then it works in the following order:
  • Grandfather and Grandmother (divided into equal parts)
  • Uncles, aunts, and their descendants (divided into equal parts)
  • Great grandmothers and grandfathers
  • The brothers and sisters of great grandmothers and grandfathers
  • To the next lineal ancestor, descendant, or family relation that doesn't fall into any of the above categories.
• 6th If no blood relatives can be found, and you are widowed at the time of your death, your estate will pass to the kindred of your most recent spouse.
• 7th If none of the above can be located, the estate will escheat to the Commonwealth of Virginia.

If anyone is only half-blood related—a half-brother, half-sister, et cetera—they only receive half of the portion a full-blood relative would be entitled to get.

The Importance of a Will

To avoid any confusion, a quiet title action amongst family members, or having your assets distributed in a manner that is not in accordance with your wishes, you should retain the services of a qualified Virginia estate planning lawyer to assist you in drafting your will. Once you have a properly executed and recorded will, you will no longer have the fear of having the Commonwealth's laws dictate who will get your inheritance and in what amount they will receive. Furthermore, unlike the intestacy laws, a will can dictate who specifically gets which assets. For instance, if you die intestate, your estate's assets and liabilities will be calculated and divided in the manner described above. However, with a will, you can leave a car to one heir, and a family heirloom to another. A will can be as specific as you would like it to be.

Having a Will is particularly important if your estate may pass to a minor child. With a Will you can designate who will manage the inheritance for the child and how long the funds will be under supervision of the person you choose. A will can also be used to create a testamentary trust for others who may need assistance managing money or credit protection, such as a young adult, a loved one receiving public benefits like Supplemental Security Income or Medicaid, a beneficiary who is vulnerable to creditors, or a beneficiary undergoing divorce.

To obtain the peace of mind that comes from having a professionally prepared will, contact one of the Virginia estate planning attorneys at HALE BALL MURPHY, PLC today in Fairfax or Annandale for help with your will.