When a person who owns property and other assets dies without a will, a Virginia intestate succession probate will determine who is entitled to the decedent’s estate. Virginia inheritance laws can be complicated.
Virginia’s intestate succession laws provide a specific plan for how the decedent’s estate will be divided and to whom. Unfortunately, when a person dies without a will, assets may be passed on to a person or persons the decedent didn’t intend.
In cases where a will exists but is considered invalid, the assets are also subject to intestate succession.
Probate Process in Virginia
When a loved one dies without creating a will, his or her estate will go through the Virginia probate process under the intestate succession laws.
When a probate court handles distribution of assets, it determines the order of heirs who will receive them and the amount or share each heir will receive.
In Virginia, the courts will not do any sort of hands-on management of the estate. Instead, they select an executor or approve of an executor. Virginia inheritance laws will impose a tax on anything that goes through the probate process.
This process is only applicable if the deceased owned $50,000 or more in personal property or owned “real” property. Regardless if there is a will or not, the estate will not be divided or distributed until the debts of the deceased have been remedied.
For more information, check out: How Do I Protect My Family From the Probate Process?
Virginia Inheritance Laws for Spouses
Generally, property and assets first go to any existing, surviving spouse. The same holds true if all of the deceased children belong to said surviving spouse. After that, or if there is no spouse, there is a prioritized order that determines who else is entitled to the decedent’s assets.
In Virginia, only one-third of the estate goes to the surviving spouse if one or more of the surviving children are with another partner.
Virginia Inheritance Laws for Children
The most basic form of child inheritance is when there is no surviving spouse. In this case, the child or children will get the entire estate. If the spouse is still alive, the child(ren) will either receive nothing or will receive two-thirds, depending on if the child(ren) belonged to the living spouse.
Virginia does not recognize adopted children any differently than biological children. They will both receive the same rights, regardless.
If the child of a deceased is not born yet, he or she will receive the same rights as any other children born while the deceased was alive.
Grandchildren are not privy to any automatic inheritance, unless the parent of said child predeceased them.If the decedent’s children are living, they will all get equal shares. But who gets what becomes extremely complicated if a decedent’s child predeceased them. Usually, the decedent’s grandchildren will receive what would have been the parent’s shares.
Illegitimate Children Inheritance Laws in Virginia
This is where Virginia law tends to vary from other states. In Virginia, an illegitimate child is defined as a child born outside of marriage. This child is only given an inheritance if the situation satisfies one of the following:
- The deceased and the other parent were married at some point, and the marriage was either considered illegal, voided or the marriage was dissolved by the court.
- A genetic test proves paternity and the parent must have acknowledged the child as his or her own and child support payments were not refused.
Although it is definitely possible for the deceased to have adopted, fostered, etc. a child during the course of his or her life, that child is not automatically guaranteed to receive a portion of the inheritance or estate. However, the child can be added to the will while the parent is still living.
Distribution Line of Heirs in Virginia
- Surviving spouse
- Biological children
- Adopted children
- Children placed for adoption who were legally adopted by other parents.
- Grandparents, aunts, uncles and their descendants
- Great grandparents and great aunts and uncles
Can My Spouse Leave Me Out of The Will?
If you live in Virginia, the answer is “no”.
There are laws in place where a spouse cannot simply be disinherited.. Another condition where intestate succession law applies is when the decedent had a will but left their spouse nothing or designated a smaller amount to them than other heirs. Virginia has what’s called an “elective share” statute. This allows the surviving spouse to claim a portion of the estate if:
- the deceased died without a will
- the surviving spouse is omitted from the will
- the deceased explicitly disinherited the spouse in the will
The surviving spouse has rights to the elective share, regardless if the surviving and deceased were separated, or divorced, or still legally married at the time of death. In such a case, the surviving spouse can contest the will. Then, the court may rule that there was no valid will and the decedent’s assets will be distributed according to intestate succession laws. When this happens, the surviving spouse typically gets either all or a large portion of the estate.
No Will and No Relatives in Virginia
If the decedent doesn’t have any relatives, the assets become the property of the state of Virginia, a legal process called “escheat.” The law of escheat means that the assets of a decedent always has a recognized owner. Without remaining heirs, the decedent’s estate is transferred to the state.
If you are a person considering not leaving a lawfully prepared will, or are thinking of putting it off, the above-described consequences may unfold, and those you prefer to have had your assets, may not.
Or if you are an heir of a decedent’s estate and they did not have a will when they died, you may be entitled to their assets through intestate succession.
Intestate succession is an extremely complicated area of heir-ship law. Even when a person thinks they understand intestate succession, the laws are modified and amended frequently causing more complications.
For more information, check out: When Does Your Will Not Control What Happens to Your Property.
Manassas Law Group, VA Intestate Succession Lawyer
If you believe you are the rightful heir to a decedent’s assets, but they did not leave a will, intestate succession and estate planning attorney can clarify your rights under Virginia law. Manassas Law Group has handled large and small intestate succession claims for over 20 years throughout Virginia. With sensitivity and respect, we’ve guided hundreds of grieving family members through the process of estate inheritance when a loved one has died.