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  • Northern Virginia Trusts & Estates

What Happens if a Person Dies Without a Will in the State of Virginia?

People avoid having a will prepared for many reasons. Perhaps the most common reason people put off having a will prepared is simply because they don’t think they need it. People who avoid making a will for this reason probably believe they don’t have all that many assets, so the state of Virginia can reasonably be expected to divvy up those assets as they see fit. Other reasons people tend to put off having a will prepared is because they think it is complicated or too expensive or they don’t want to face their own mortality.

For the average person, having an experienced Virginia estate planning attorney assist them with the preparation of a will is not all that expensive.

As far as facing one’s mortality, many people feel that by memorializing their last wishes, they are “tempting fate,” and something terrible will happen to them. While such fears are understandable, in the words of the Eagles, “Get over it!” Here’s what will happen in the state of Virginia if you let fear or superstition prevent you from having a will prepared.

First and foremost, your assets may not go to the person you think they will go to. The state of Virginia will divvy up your assets as follows:

  1. Your surviving spouse, if you have one, is first in line. If you have children belonging to you and this spouse, your surviving spouse will receive 100 percent of your estate, under the theory that he or she will then eventually leave those assets to your children

  2. If you have a surviving spouse, and children from a prior relationship, then one-third will go to your surviving spouse, and two-thirds will go to those children.

  3. If you have no spouse, then your assets will pass to your children in equal shares.

  4. If you have no surviving spouse and no children, your assets will go to your mother and father.

  5. If your mother and father have passed, you have no surviving spouse and no children, then your brothers and sisters are next in line.

  6. If your mother and father have passed, you have no surviving spouse, no children and no brothers or sisters, then the court will distribute your assets to aunts, uncles, grandparents, great-grandparents and great aunts and uncles as they see fit.

  7. Half blood relatives in any of the above categories will receive only half-shares of your assets. As an example, if you have two full brothers and two half-sisters, then rather than divide the estate equally into fourths, the half-sisters would be entitled to only 1/8th of your assets, leaving greater than a ¼ share to each of your full brothers.

Second, having a will allows you to be specific about who gets what. Not only can you divide your larger assets (home, cash, vehicles, property, artwork, etc.) as you wish, you can leave specific items to specific people.

Third, having a will allows you to designate a guardian for your minor children. Would you really want to leave this decision to the state of Virginia? There is no other legal estate planning document which allows you to ensure your children are raised by the person you choose, other than a will.

Finally, should your estate be insolvent—that is, you don’t have enough assets to pay off all your bills—the Personal Representative designated by the Virginia court will prioritize payment of those bills, meaning some creditors may be paid in full, while others may receive little, if any, of the money owed to them.

In the end, it only makes sense for you to be the one to decide how your assets will be divided, how your bills will be paid, and who will raise your children. Contact us to speak with an experienced Virginia estate planning attorney.

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