If you are an adult in the United States, you may have taken the time to have an estate plan prepared. If so, then your estate planning attorney may have set up a trust and placed your home in the trust. Putting your home in the trust will not only ensure that it goes to the person you want it to go to when you die but more importantly, it will help you to avoid going through the potentially painful probate process.
If this is not the case, here are a couple of the various scenarios regarding what could potentially happen to your home upon your death.
If There Is a Will
A decedent who dies with a will in the state of Virginia will still have to go through the probate process. However they will have his or her property inherited as it is spelled out in the will; estates which include no real property (no home), and $50,000 or less in personal property, is considered a small estate. A small estate avoids probate proceedings, so long as at least 60 days have passed since the person’s death. If, however, the estate does have real property, it must go through the formal administration probate process.
If There is No Will
If the decedent died without a will in the state of Virginia, then intestate succession laws will be put into place. The court will select an executor, then the debts of the deceased will be settled, including any taxes owed. Under intestate succession laws, the following will govern how the estate is divided:
- Spouses are given important rights to inheritance under Virginia’s intestate succession laws. When a surviving spouse is left, but no children, the surviving spouse will receive the entire estate of the decedent. This means the house of the deceased will go only to the spouse.
- If there are children, but they are children of the decedent and the surviving spouse, then the surviving spouse will still receive the entire estate. The surviving spouse will receive the house, just as though there were no children.
- If one or more of the children are from an ex-partner (not the surviving spouse), then those children will receive two-thirds of the estate, divided equally among them, and the surviving spouse will receive one-third of the estate. In this instance, the house might have to be sold, and the proceeds divided unless the decedent left enough assets that the surviving spouse could keep the house, and the children could receive their share of the estate through other homes, vehicles, or personal property of the deceased.
- If the deceased has children but no spouse, the entire estate will be divided among the children. In this case, either the children would inherit the house in equal shares, or, if the decedent left a significant amount of assets, the value of the house could be offset by other assets.
- There is no difference under Virginia law regarding biological and adopted children. Grandchildren, however, are granted no automatic inheritance rights under Virginia’s intestate succession, unless the grandchild’s parent predeceased him or her. If an individual dies prior to a conceived child’s birth, that child will receive the same rights of inheritance as a child born during the lifetime of the decedent. This includes children conceived via artificial insemination, using the genetic DNA of the decedent.
- Virginia’s intestate laws are a bit different from most other states regarding children born outside of wedlock. A child born outside of wedlock is only allowed an inheritance (absent a will or trust) under two circumstances: 1)if the decedent and the child’s mother were married at some point, however, the marriage was later deemed illegal, or was voided or dissolved by the courts, or 2) If a scientific, genetic test reveals paternity and the father acknowledged the child as his own while alive.
- If the deceased was not married and has no children, then his or her assets—including the home—will first go to the parents of the decedent, will be split between the siblings, if the parents are not alive, nieces and nephews if no siblings are alive (or exist), paternal or maternal grandparents, if no nieces and nephews are alive (or exist), paternal/maternal aunts and uncles, if no grandparents are alive, paternal/maternal cousins, if no aunts or uncles are alive, then finally to great-grandparents and great aunts and uncles. If no family exists, then the estate, including the house, will become part of the state of Virginia.
In the end, if you want to ensure your house and other assets go to those you would want them to go to following your death, consider having an experienced Virginia estate planning attorney prepare a trust on your behalf.
Contact Our Northern Virginia Trust and Estates Law Firm
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 703.719.4846 or ClickHere