Updated for 2022
Like most adults of a certain age that own property, you may have visited an attorney to discuss a comprehensive estate plan. One of the most common ways to protect your home and ensure that it goes to your intended recipient is to set up a living trust and place your real property within it. In addition to ensuring that your home will go to the person of your choice after your death, with a trust, you will have the built-in satisfaction of knowing that your loved ones will avoid the often tedious and painful probate process.
Without the benefit of such an arrangement, there are a few possible scenarios that may potentially occur in the event of one’s death with regard to his or her house. Here are some of those options:
If there is a Will
If the decedent has a valid will, in the state of Virginia, this is referred to as being testate. Unfortunately, the probate process still cannot be avoided, and the estate will still be required to go through the process. That said, property will be distributed in strict accordance with what is spelled out in the last will and testament, and your property will be left only to your named beneficiaries.
There is one exception. Any estate that does not include real property, homes or otherwise, and is valued at a collective $50,000 or less in personal property, is considered by the state to be a “small estate.” Such small estates have the advantage of avoiding probate proceedings as long as there has been 60 days between the decedent’s passing and the distribution of his or her property. A death certificate may be required. If the estate has any share in real estate, however, it is imperative that it goes through the requisite formal administration probate process.
If There Is No Will
If a decedent passes away without a last will and testament in the state of Virginia, it is referred to as intestacy. Fortunately, though dying without a will is not recommended, there are intestacy laws that the state has in place to navigate estate administration. The estate will go before the circuit court probate division and the probate court judge will choose an executor, or personal representative, to oversee the assets. The decedent’s debts will then be settled or paid off, including any federal estate tax, probate tax, and any other taxes that are owed according to the decedent’s income tax return.
In the state of Virginia, the intestate probate laws prescribe the following method as to how an estate shall be divided:
- Under Virginia’s intestate succession laws, spouses are provided with important inheritance rights that trump other potential beneficiaries. If a surviving spouse exists, and there are no existing children of the decedent, the surviving spouse will inherit the decedent’s estate in its entirety, including any real property. That means that the home of the deceased person will become sole property of his or her surviving spouse, if it hasn’t already due to the right of survivorship in a joint tenancy. The latter refers to two or more people that are co-owners, or joint tenants, of a home or other real estate.
- If the decedent has children, and they are the joint children of him or her and the surviving spouse, then the surviving spouse is still entitled to inheriting the whole estate (including all real property). In other words, the surviving spouse will gain ownership of the decedent’s home in much the same way as he or she would have if there were no children.
- If there are one or more children of an ex-partner or ex-spouse, who is not the surviving spouse, then these children will stand to receive two-thirds of their deceased parent’s estate, divided equally among each of them, and the surviving spouse will receive the remaining one-third of the estate that is left. Because this can get tricky, it is likely that the house and other real property may need to be sold unless the deceased left behind enough material assets, insurance proceeds, and cash in retirement accounts and other bank accounts, to divide among his or her children to ensure that his or her surviving spouse will be able to keep the house. For example, the children may be able to claim their two-thirds share of the estate in other assets, such as vehicles, vacation homes, and the decedent’s other personal property.
- If a decedent has children, but is not married at the moment, or has never been married, the entire estate will be equally divided among all of his or her children. If this were the case, the children may inherit the home in equal shares, which means that there may be a buyout in order for one child to attain ownership, or, the house will have to be sold and the profits will be split evenly among the children. If there are enough estate assets to offset the value of the house, there is a possibility that the children will decide amongst themselves which of them shall receive it and who will inherit other items of comparable value.
- It should go without saying, but it is important to clarify, that there is no difference whatsoever between biological and adopted children under the Virginia probate codes. That being said, grandchildren are not ever granted automatic inheritance rights under Virginia law. That is, unless, the grandchild’s parent, the decedent’s child, predeceased him or her. Now, if a parent dies prior to the birth of a child, that child is entitled to the same rights of inheritance as a child born during the lifetime of the decedent is allowed. This still includes children that are conceived via artificial insemination using the genetic material of the decedent.
- When it comes to children born out of wedlock, Virginia’s intestate probate laws differ slightly from other states. When a child is born outside of a marriage, he or she is only allowed an inheritance, in situations where there is no will, trust, or life insurance policies in place, under two specific conditions:
- if the child’s mother and the decedent were married at any point, and
- if a scientific, genetic test confirms paternity and the putative father acknowledged the child as his own while he was still alive.
- If a decedent was not married at the time of death, or was never married, and he or she had no children, then his or her assets, including any home or other real property, will pass first to the parents of the deceased, or will be split among his or her siblings if the former are deceased. If the parents and siblings of the decedent have all passed away, the estate will pass to nieces and nephews, then both sets of grandparents, then aunts and uncles, then cousins, and finally to great-grandparents and great aunts and uncles. If no family members exist or survive the decedent, then the entire estate, including the house, will become the property of the state of Virginia.
Of course, after you leave this world, you want to ensure that your home and other assets go to those that you intend for them to go to. The best way to plan for this is to consider having an experienced Virginia estate planning attorney prepare a living trust on your behalf.
A Northern Virginia Trust and Estates Law Firm You Can Trust
An experienced Virginia estate planning attorney can review all of your options with you to ensure that your home and property are taken care of after your death. Northern Virginia Trusts & Estates provides affordable estate planning services for Virginia families, including wills, trusts, and more.
For more information about trusts, wills, estate planning, our services and packages, contact our office today at 703.938.3510 or Click Here.
Disclaimer: The following post is for information only and does not provide legal advice nor establish an attorney-client relationship.