What Happens to My Assets if I Die Without a Will in Virginia?
“What happens to my stuff if I die without a will in Virginia?” is a question that I hear a lot. Passing away without a will is referred to as dying intestate and can have many unintended consequences.
What “stuff” gets distributed?
Your “stuff” passing intestate includes everything that would pass under a will (usually real and personal property that you separately own), and does not include items that would be distributed outside of probate. Items commonly transferred outside of probate include:
- property you’ve transferred to a trust,
- life insurance proceeds,
- funds in a retirement account (IRA, 401(k), etc.),
- securities and funds held in a transfer-on-death pr payable-on-death account, or
- property you own with someone else in joint tenancy or tenancy by the entirety.
Where does my “stuff” go?
Based on the Virginia intestacy statute, your estate flows in this order, without exception:
- If you are survived by a spouse, your spouse inherits your entire estate.
- If you are survived by a spouse and descendants some of whom are not descendants of your surviving spouse, your spouse inherits 1/3 of your estate and your descendants inherit 2/3 of your estate.
- If you are not survived by a spouse, your descendants (children and/or grandchildren) inherit your estate. Your estate is divided into equal shares at the first generational level at which there are living takers.
- If you are not survived by a spouse or descendants, your estate passes to your parents.
- If you are not survived by a spouse, descendants or your parents, your estate passes to the descendants of your parents (siblings and their descendants).
- If you are not survived by descendants of your parents, then your 1/2 of your estate passes to each set of your grandparents or their descendants (grandparents, aunts, uncles, cousins & descendants).
- If you are not survived by any kin, your estate passes to the heirs of your most recent spouse.
- If no heirs can be found, your estate becomes the property of the Commonwealth of Virginia!
Va. Code Ann. Sec. 64.2-200 & 201.
What can go wrong?
There are a myriad of situations where the Virginia intestacy statute may have unintended consequences:
- Single People: if you are single with no descendants, you may not want your entire estate to pass to your parents or your siblings, especially if one or both of your parents are remarried. Many of the single clients that I work with like to pass their assets to nieces and nephews or to charities.
- Married People with Separate Property or Family Wealth: if you are married with separately owned property and/or family wealth, you may not want that to pass entirely to your spouse and his/or family.
- Blended families: if you are remarried without children but your spouse has children from another marriage, you may not want all of your assets to pass to your spouse and then your spouse’s family or descendants. If you are remarried with children of your own, you may want your surviving spouse to be left with more than 1/3 of your estate after you pass away.
- Stepchildren and Foster Children: if you have stepchildren or foster children that you have not legally adopted, you may want them to inherit from you. Under the intestacy statutes, step-children and foster children do not directly inherit from a decedent.
- Half-Siblings: if your parents are deceased, you are single, and have no descendants, your half-siblings and siblings would equally divide your entire estate.
The preparation of a will and estate planning can avoid leaving your legacy (and your stuff!) to unintended beneficiaries. For assistance with creating a will and planning your estate, call the Law Office of Ada-Marie Aman (804.467.1875) or contact me here.
[The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature, the information and materials provided may not apply to any specific factual and/or legal set of circumstances. No attorney-client relationship is formed nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney, especially an attorney licensed in your jurisdiction. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.]