The laws of intestacy in Virginia are a set of default rules that are used when a decedent dies without a last will and testament, or when the provisions for the last will and testament are deemed to be invalid. The laws are available, but are not often the best expression of what the decedent’s wishes may have been had an original last will and testament been executed before the death.
The laws of intestacy provide for people who have the priority to serve as a personal representative, and how the estate assets will be administered. In some cases, the heirs may not have been the same individuals that the personal representative may have named in their last will and testament had a will been created. To avoid this outcome, it is important to retain the help of a Virginia probate attorney as soon as someone can, as an attorney can help them to understand more about the laws of intestacy in Virginia.
Assets of an estate are administered or distributed equally among children in the event that an individual died intestate.
When an individual passes away without a last will and testament, the laws of intestacy in Virginia step in to provide a distribution. Virginia Code provides that the real estate of any decedent not effectively disposed of, will descend and pass by intestate succession in the following course:
- Generally, to the surviving spouse unless the decedent is survived by children or their descendants, of more of whom are not children or their descendants of the surviving spouse, in which case, two-thirds of the estate descends and passes to the decedent’s children and their descendants, and one-third of the estate descends and passes to the surviving spouse
- If there is no surviving spouse, the estate descends and passes to the decedent’s children or their descendants
- If not, then the real estate will go to the decedent’s parents, or surviving parent
- If there is no parent, then it will go to the decedent’s brothers and sisters
- If there are no brothers and sisters, then half of the estate descends and passes to the maternal kindred, the paternal kindred, and half to the maternal, so basically split between the parents on the father’s side and the mother’s side
- If there is no surviving paternal kindred, the whole estate descends or passes to the paternal or the maternal kindred who survive the decedent
When looking at factors of the shares received by certain individuals, such as spouses, in the event of their loved one’s death, there are a few different elements to take into consideration. A spouse has a right to elect against a will in the event they do not feel adequately provided for. Virginia passed a set of laws that changes the formula for what a spouse has the right to inherit, in the event they are not properly provided for in the decedent’s last will and testament. The right to inherit is based on a formula that takes into account the assets held by the decedent in their sole name, marital assets, assets held by the surviving spouse in their sole name, and then also the term of years of marriage.
That is the first set of spousal rights. The second set of spousal rights is when an individual dies without a last will and testament. In the event that an individual dies without a last will and testament, the share for the surviving spouse will be dependent on whether or not the decedent and the surviving spouse had children and whether those children were minors or adults, whether they share children together or the decedent had children that were not shared with the surviving spouse. In the event that there is no surviving spouse, the decedent’s heirs will be their children in equal shares. Virginia Code also describes what happens in the event that there are no surviving children.
Generally, the relationship of kinship will be determined on the amount of the proceeds of the estate that are distributed. A commonly misunderstood fact about the laws of intestacy in Virginia, and in probate in general, is that individuals think that the quality of their relationship with the decedent is determinant of their ability to inherit from an estate or to serve as the executor or the administer of the estate, which is not necessarily the case. The reality is the closeness of kinship will be the determining factor.
Often, there will be a situation where heirs of an estate that they were a niece or a nephew of the decedent and may argue that their relationship required for them to receive certain things after their death. The reality is that in the event the decedent died without any siblings, parents, children or a spouse and the nieces and nephews are next in line to inherit, all of the nieces and nephews may be treated equally regardless of whether or not they maintained any communication with the decedent prior to death.
Estate Administration with No Descendants
It is possible that the assets of an estate will escheat to the Commonwealth of Virginia in the event that there are no lineal heirs or there are no heirs to be found or no descendants to be found. In Virginia, in the event there is neither maternal or paternal kindred, then the whole estate will descend and pass to the kindred of the decedent’s most recent spouse if any provided that the decedent and the spouse were married at the time of the spouse’s death. If there is no other heir of the decedent’s real estate or decedent’s estate then it is subject to escheat to the Commonwealth.
The laws of intestacy are default laws. They often do not express a decedent’s wishes for the distribution of their assets at death. Expressing your wishes can be best accomplished in estate planning long before someone passes away. Although the Commonwealth does provide a default set of laws, they are likely not what an individual may have wanted at death.
Although the default laws are available, they often are not the best expression of what an individual would have wanted. Another important factor to consider when an individual dies intestate is who may serve as the executor or qualified to serve as the personal representative of the estate. In cases where the decedent dies without a spouse and has possibly several children all capable of serving, the determination of who to serve can sometimes be a complicated matter and can lead to a delay in opening the estate.