What Happens if You Die without a Will?

No one likes to think about their mortality, what will become of their assets and belongings, and who will provide for their loved ones, once they’re gone. What may be comforting, however, is the knowledge that with proper planning and the creation of an estate plan that includes a will, one can ensure that when their time comes, those they love will be well taken care of, and that all their assets will be divided as they see fit.

Unfortunately, not all persons have created a will at the time of their death, which means that the individual’s estate is subject to Virginia intestacy laws. Here’s a look into what happens to your belongings if you die without a will in Virginia.

What Does it Mean to Die “Intestate?”

When a person dies intestate, they have died without a valid will at the time of death. To determine how the decedent’s estate should be divided, then, the laws of Virginia outline who are heirs to the property, and therefore who should receive what percentage of the property. These laws are called intestacy laws, or the laws of intestate succession.

Virginia Intestacy Laws

Each state has the authority and the autonomy to create its own laws regarding intestacy, and therefore the laws vary on a state-to-state basis. Virginia intestacy laws state that if a person is to die without a will, their estate shall be divided in the following manner:

• Children will inherit everything, if the person dies with children and no spouse;

• Spouse will inherit everything, if the person dies with a spouse, regardless of whether that spouse and the deceased had children together;

• Spouse will inherit ⅓ of the property, and children will inherit everything else when the descendants are from another spouse;

• Parents will inherit everything, if the person dies without children or spouse; and

• Siblings will inherit everything, if the person dies without children, spouse, or parents.

There are more specific laws that govern more complicated family situations, such as those involving stepchildren, children born outside of a marriage, grandchildren, and posthumous relatives.

The Probate Process and Dying Without a Will

To determine the value and type of your assets, to pay off debts, and to accurately divide assets amongst beneficiaries, your estate must pass through probate. The probate process occurs regardless of whether a person has a will (when a person does have a will, the reading and validating of the will are major elements of the probate process). When a person does not have a will, the court must determine which assets are probate vs. non-probate assets – non-probate assets will not be divided per intestacy laws. Common non-probate assets include payable-on-death bank accounts, property owned in joint tenancy with a right of survivorship, assets held in a trust, and certain assets owned by contract rights.

In addition to determining which assets are up for division, the court will also determine any debts the decedent had at the time of death. Debts must be paid before any of the estate can be divided amongst heirs. As such, beneficiaries may receive much less than they originally expected.

Will Any Property Be Given to the State?

A concern that many people have is that if they die without a will, their property will be given to the state, adding to the government’s coffers. While this is a possibility, it is a very rare occurrence. Indeed, so long as an individual has any living relatives, it is very unlikely that any of their estate will go to the state. As to real estate, Section 64.2-200 of the Code of Virginia reads that real estate is “subject to escheat to the Commonwealth” if there is no other heir of a decedent’s estate.

Protecting Your Assets and Your Family

Thinking about death can be unsettling; knowing that those you love will be provided for when you are no longer here can provide peace of mind. At the law offices of St. John, Bowling, Lawrence & Quagliana, LLP, our experienced Virginia estate planning attorneys can help you to create a will that outlines your wishes for the division of your estate. To schedule an appointment with our team today, please call us at 434-296-7138 or send us a message using the intake form on our website. You can also visit our Charlottesville office in person at your convenience.