Children in Intestacy in Virginia
When an individual dies intestate, he or she has passed away without a last will and testament. This means that the laws of the Commonwealth of the Virginia will step in to govern who will or may request from the court the authority to serve as the executor or personal representative of that the decedent’s and how the assets of that estate will be distributed.
In cases in which the decedent did not have estate planning, there are often additional issues that were not addressed prior to the death of the decedent. It is very useful to work with a probate attorney to learn more about the laws of intestacy.
Distributing Assets
It is important to know that the laws of intestacy may not reflect the individual’s wishes as he or she expressed them during his or her lifetime. Rather, the distribution of assets is based on bloodline relationships to the decedent. These bloodline relationships dictate how assets are to be distributed upon the death of an individual who dies without a last will and testament in place and who has assets in his or her sole name.
For example, if a gentleman passes away and does not have a surviving spouse, then the assets would go to the children directly related to the deceased. Another example would be the situation where a person passes away and is not survived by a spouse or children. The assets could be turned over to any nieces and nephews of the deceased. Regardless of the nature of the relationship between the decedent and these nieces and nephews, in the eyes of the law for the Commonwealth of Virginia, all of these nieces and nephews may be treated equally in regards to the division of the assets of the descendant.
Adopted Children and Step-Children in Intestacy
According to the Commonwealth of Virginia, adopted children are treated the same as biological children. For example, if two parents have two biological children and one adopted child and a parent dies without a last will and testament, then the biological children and the adopted children are treated the same and have the same rights.
An exception to this involves instances in which only one parent has officially adopted a child. In such cases, one parent adopts the child but the child is raised by both parents. Although this may just be a legal distinction, it is an important one for children who are adopted. If this is the case it might mean that the child is not entitled to inherit assets from a non-adoptive parent if that parent has not made adequate provisions in his or her last will and testament or some other form of estate planning.
Under the laws of the Commonwealth of Virginia, a step child is not treated as an adopted or biological child. Often, if a stepparent dies without a last will and testament, a step child may not be entitled to inherit from that parent.
Obstacles When the Parents of an Illegitimate Child Pass Away
In some circumstances, children born out of wedlock are entitled to inherit assets from a biological parent’s estate if the biological parent dies without a last will and testament. However, in practicality, this can prove to be a difficult area from both the estate administration perspective and from the potential heir’s perspective, as Virginia very specifically outlines the circumstances under which a child born out of wedlock can inherit such assets.
Often, whether an out of wedlock child can inherit from an estate is considered on a case-by-case basis that takes into account the relationship of the parent and the child during the parent’s lifetime. In addition, Virginia law has a one-year statute of limitations after the death of a parent for a child out of wedlock to claim inheritance from the deceased parent’s estate. The one-year statute of limitations runs even if a child is a minor.
A lawyer who is familiar with probate administration can work to assist any children and family members in understanding the laws of intestacy and help to navigate such laws from both the perspective of the heirs of the estate and from that of the executor or personal representative.