Many people think that estate planning and drafting a will is a morbid experience. In fact, according to Forbes, about half of American adults 55 or older don’t have a will. But what happens if you die and you haven’t made it legally known how you’d like your assets and belongings to be distributed after you’ve passed?
The answer is, what happens next varies state by state.
Dying Without a Will in Virginia
In our state, when you die without a will, Virginia probate law steps in and decides who gets what, which may not always follow your wishes for how you’d like your assets distributed after your death.
Dying Without a Will When You Have a Surviving Spouse and/or Descendants
Typically speaking, if you die in Virginia without a will but have a surviving spouse, he or she will inherit the balance of your probate estate after all your applicable debts have been paid.
But things can get sticky for blended families when the deceased had children from a former partner who is not their surviving spouse. In this case, the surviving spouse will only inherit ⅓ of the deceased’s probate estate, and all of the deceased’s children will inherit the remainder of your estate, in equal distributions. This can get hairy for some families, especially when all children are adults and the deceased had intended, but never had a will drafted, to have all of your nest egg go to care for your surviving spouse. And unfortunately, it’s these types of situations that can cause strife in families after a loved one’s passing.
Dying Without a Will When You Don’t Have a Spouse or Descendants
Sometimes, Virginians die without a will and they don’t have a surviving spouse or children to inherit their estate. In this case, a series of contingencies apply:
- If the deceased has surviving parents, they inherit the balance of the estate.
- If the deceased doesn’t have surviving parents but has surviving siblings, they will inherit the estate.
- If the deceased has no surviving parents or siblings, the estate will go to the next of kin, which could be surviving grandparents, aunts, uncles, cousins, nieces, or nephews.
- If no next of kin can be located, the estate will be escheat – turned over to the Commonwealth of Virginia. This can be an unfortunate situation, especially if the deceased would have preferred his or her assets to be donated to a favorite non-profit.
How Does the Commonwealth of Virginia Try to Locate Next of Kin When They Aren’t Apparent?
Some people, especially the elderly, pass away without a will and no easily identifiable next of kin. Before Virginia can escheat the estate, it must do it’s due diligence to try to locate any next of kin to inherit the deceased’s assets.
This article does an excellent job of describing how public administrators are put to work to try to track down next of kin after someone passes away so that rightful heirs can be located. It can take months of work, often sorting through boxes of paper-based records, trying to locate assets and the next of kin so that the inheritance can be properly distributed.
Avoid The State’s Estate Backup Plan By Starting Your WIll Today
As a unique individual, we know that you have specific wishes for who will receive your estate after you’ve passed. While we know that it can be a sensitive and difficult topic to discuss, creating a will is a loving act that makes your wishes known to your surviving relatives, and distributes your assets as you want them to be dispersed.
If you don’t yet have a will, we’re happy to work with you to get the process started. It typically involves two meetings with us – a first meeting to fill out paperwork and discuss your wishes, and a second meeting to sign all legal documents that require official ID verification.
Get the process started with a free consultation or, call us today at 703.938.3510.