If you die without a will in Virginia, your assets will go to your closest relatives under state "intestate succession" laws. Here are some details about how intestate succession works in Virginia.
Only assets that pass through probate are affected by intestate succession laws. Many valuable assets don't go through probate, and therefore aren't affected by intestate succession laws. Here are some examples:
These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will. However, if you don't have a will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to intestate succession.
To learn more about these types of assets, go to the How to Avoid Probate section of Nolo.com or read about Avoiding Probate in Virginia.
Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here's a quick overview:
If You Die With:
Here's What Happens:
|children but no spouse||children inherit everything|
|spouse but no descendants||spouse inherits everything|
|spouse and descendants, all of whom are descendants of that spouse||spouse inherits everything|
|spouse and descendants, at least one of whom is from someone other than that spouse||spouse inherits 1/3 of your intestate property
descendants inherit everything else
|parents but no spouse or descendants||parents inherit everything|
|siblings but no spouse or parents||siblings inherit everything|
In Virginia, if you are married and you die without a will, what your spouse gets depends on whether or not you have living descendants—children, grandchildren, or great-grandchildren. If you don't, or if all of your descendants are also descendants of your spouse, then your spouse inherits all of your intestate property.
If, however, you die with at least one descendant who is not the descendant of your surviving spouse, then your spouse inherits only 1/3 of your intestate property.
Example: Barrett is married to Jed and also has a 12-year-old daughter from a previous marriage. Barrett owns a house in joint tenancy with Jed, plus $300,000 worth of additional, separate property that would have passed under a will if Barrett had made one. When Barrett dies, Jed inherits the house outright—it's not intestate property—plus $100,000 worth of Barrett's property. Barrett's daughter inherits the remaining $200,000 share of Barrett's property.
If you die without a will in Virginia, your children will receive an "intestate share" of your property. The size of each child's share depends on how many children you have, whether or not you are married, and whether your spouse is also your children's parent. (See the table above.)
For children to inherit from you under the laws of intestacy, the state of Virginia must consider them your children, legally. For many families, this is not a confusing issue. But it's not always clear. Here are some things to keep in mind.
This can be a tricky area of the law, so if you have questions about your relationship to your parent or child, get help from an experienced attorney. If you want to read the laws yourself, you'll find a link to the Virginia Code at the end of this article.
If you die without a will and don't have any family, your property will "escheat" into the state's coffers. However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won't go to the state if you leave a spouse, children, siblings, parents, grandparents, aunts or uncles, great uncles or aunts, nieces or nephews, great grandparents, brothers and sisters of grandparents and their descendants, cousins of any degree, or the children, parents, or siblings of a spouse who dies before you do. (See Virginia Code § 64.2-200.)
Here are a few other things to know about Virginia intestacy laws.
If you need more help understanding who inherits a loved one's property after they die without a will in Virginia, look for an experienced Virginia probate lawyer.
If you're ready to make a will or living trust in Virginia to spell out your wishes, you can use a Virginia estate planning lawyer, or try WillMaker & Trust to make your own estate planning documents.