The term intestacy is defined as dying without a last will and testament. The laws of intestacy will be important to a family after someone passes away without a last will and testament because they will dictate who is entitled to be an heir of the estate and also what percentages an heir will receive and what individual or class of individuals has priority to serve as personal representative or executor on behalf of the estate.
Without a last will and testament, the laws of intestacy become the controlling factor in determining the distribution of the estate assets. In order to best understand the process in which the laws of intestacy apply, a skilled estate administration attorney is needed who can do their best to streamline this process.
Typical Legal Procedure
The typical procedure for when an individual dies without a will is determined by the assets the decedent had in their sole name and the heirs at law that are prescribed by the Commonwealth of Virginia’s law with regard to intestacy. When an individual dies without a last will and testament, the Commonwealth of Virginia provides a default set of laws that describes the person who has the priority to serve as the personal representative or executor on behalf of the estate, and who is entitled to inherit and in what percentages.
Often, while the laws of intestacy are based upon the lineal relationship of an heir to a decedent, they may not prescribe the distribution of the decedent’s estate in the same way that a decedent may have indicated if they had the opportunity to make a last will and testament during their lifetime.
For example, in the scenario where a parent has three children, the law in the Commonwealth of Virginia may say that all three children can inherit the estate equally. However, if the parent had executed a last will and testament, they may not have left all of their assets to their children in equal share because that parent may have made distributions to one child or another child in greater excess during their lifetime. Often, while the law of the Commonwealth will step in to act as a default, it may not necessarily be the wishes of the decedent had they made a will prior to passing away.
Factors of Dying Without a Will
There are a lot of reasons an individual may die without a last will and testament and the laws of intestacy would proceed. Planning for an individual’s passing can be off-putting for individuals, and they may procrastinate on completing a last will and testament until it is too late.
In some scenarios, they may have lost capacity long before they passed away. Therefore, an individual may be unable to execute a last will and testament because they no longer have the required testamentary capacity to create a last will and testament. In other cases, individuals may have chosen to write a last will and testament on their own and it may not be valid under the laws of the Commonwealth of Virginia. When a last will and testament is deemed to be invalid, then, the individual died without a valid last will and testament even though they thought that they had created one during their lifetime. Those are just a few and some of the more common reasons that individuals die without a last will and testament and dies intestate.
Administration of Estates Without a Will
The Commonwealth of Virginia provides a set of default intestacy laws that will determine who has the priority to serve on behalf of the estate to administer the estate. The Virginia law steps in to determine who has the priority to serve as the personal representative or administrator of an estate.
When there is no last will and testament, the Virginia laws of intestacy will step in to determine or dictate how the assets will be distributed and who is an heir to the estate. At that point, often, estate distribution cannot be changed. Even though there have been tax advantages to leaving an estate a different way or even though somebody promised an heir that they were going leave them assets, if there was no last will and testament and that person is not entitled to receive under the laws of intestacy, then there is often nothing that can be done to change the distribution of the estate asset.
Is Administration Necessary?
Whether administration is necessary will depend if the individual owned assets in their sole name with no joint owner and no beneficiary. In some cases, if an individual had all payable on debt accounts, then it is possible that no estate administration is necessary because the individual died without an estate.
Often, owning assets in that manner may not always be the best choice, because the estate may face liquidity issues. If there are expenses, debt, or taxes that are owed, there is nothing left in the estate to pay those expenses. Estate planning prior to death can contemplate leaving assets to individuals but can also often contemplate providing liquidity in an estate to pay for any taxes, mortgages, or debts that may be owed.
Assets that pass by survivorship or beneficiary designations are often outside of a decedent’s estate. It is not uncommon for individuals to write a proper last will and testament and then name beneficiaries or joint owners on all of their assets not realizing that they are diverting the way those assets are being distributed.
A common scenario is that there may be a parent that has three children and, for convenience, a parent may name one child as a joint owner in all of their accounts just so that child can assist them with banking and paying bills and other issues. The parent may not realize that at death, often, that asset will pass directly to the child, meaning that they have now not left their children’s distributions in equal share and one child may have unintentionally benefited from that type of ownership or naming the child as the joint owner.
That is often unwanted and an unintended beneficiary, but individuals do not realize that a last will and testament is not an all-encompassing document that governs the way all assets are distributed but rather it only governs the way assets are distributed when a decedent holds them in their sole name with no beneficiary or no joint owner on the date of death.
Working with an Attorney
An attorney can assist the intestacy process in Virginia by helping determine who has the priority to serve and assisting them with getting qualified to serve. After they are qualified, then an attorney can assist that individual by advising them of their fiduciary obligations. They can also assist with making a complete inventory of all of the assets, helping to review any legally enforceable debts, and then assist in making a plan for distribution of the assets.