Updated for July 2022
Over 55 percent of American adults have neither a will nor any other type of estate plan in place. This number has remained fairly steady for the past fifteen years. Without a valid will or some other estate plan in place, you’ll have no control over who will inherit your possessions, your wishes may not be fulfilled, and it will be up to Virginia intestacy law to decide how to distribute your assets. Dying without a will could mean that your estate — your real property, including real estate, personal property and any other assets owned or controlled by you at your time of death — might possibly be split between someone you don’t wish to inherit, and/or people who don’t get along and end up fighting over your estate in court.
What Happens in the State of Virginia if You Die Without a Will?
There are so many good reasons to have a will, and virtually none which support not having your estate in good order. When the decedent (or deceased person) has not created a will, the decedent‘s estate must go through the Virginia probate process under its intestate succession laws.
Without a will, intestate succession laws decide what happens to your assets upon your death. If you do not have a last will and testament in the Commonwealth of Virginia when you die, here is what will happen to your remaining assets according to the Virginia code (after payment of funeral expenses, debts, and cost of administration):
If you have a spouse and no children (or grandchildren, great-grandchildren, etc.,) your spouse will inherit 100 percent of your assets.
If you have children (or grandchildren, great-grandchildren, etc.) but no spouse, your children will inherit 100 percent of your assets.
If you have a spouse and children who are also the children of your spouse, your surviving spouse will inherit all of your assets.
If you have a spouse and children (grandchildren, great-grandchildren, etc.), at least one of whom is not a descendant of your spouse, your surviving spouse will inherit one-third of your assets. The remaining two-thirds of your assets will go to your descendants.
If you have no spouse and no descendants, but you are survived by one or both parents, then your parents will inherit your assets in equal shares, or if only one parent is living, he or she will inherit your entire estate.
If you have no spouse, no descendants, and no living parents, your siblings will inherit your assets, to be divided equally.
If you have no spouse, no descendants, no living parents, and no siblings, then any family members you do have, such as aunts, uncles, cousins, or grandparents will inherit your assets, split equally between surviving relatives.
If in the unlikely event you have no family at all, then your estate, without a will to say differently, will go to the Commonwealth of Virginia.
Not all assets pass through a will
It is important to recognize that some of the decedent’s assets don’t pass through a will, therefore would not be affected by intestate succession laws. These assets include:
Retirement accounts, IRAs and 401(k)s with living beneficiaries;
Proceeds from a life insurance policy. Since life insurance policies have a named beneficiary, the proceeds will pass directly to that person;
Any property which has been properly transferred to a living trust;
Bank accounts set up as payable-on-death (those will also go to a named beneficiary), or
Any property owned with another person in joint tenancy or tenancy by the entirety.
Additional issues to keep in mind
A “survivor” under Virginia law is someone who outlives you by at least 120 hours. This survivorship period means if you and your mother are involved in a car accident (and you have no spouse or children), your mother must outlive you by at least 120 hours to inherit your estate.
Also, if you have half-siblings, they inherit only half as much as if they were “full” siblings. In other words, assume you have no children, no spouse and your parents are deceased. You have two brothers born to your parents; therefore, they are “full” siblings.” You have one half-sister, who is your father’s daughter, but not your mother’s. Your half-sister is only entitled to half as much as your brothers. Any relatives conceived before you die but born after your death will inherit as if they had been born while you were alive. Finally, there is no difference as far as inheritance for your relatives who are not legally citizens of the United States and those who are.
About Northern Virginia Trusts & Estates
Northern Virginia Trusts & Estates provides affordable estate planning services for you and your loved ones. Our firm understands the intricacies of estate planning and offers a range of services from simple, a la carte pricing for single items to comprehensive offerings that cover a variety of preparations.
For more information about wills, estate planning, our services and packages or to learn from our estate planning attorneys, contact our office today at 703.938.3510 or contact us here.