
When Do Grandchildren Inherit in Virginia?
Planning for the future of our loved ones is a priority for many of us and ensuring that your grandchildren are well-cared for is often part of that vision.
At Commonwealth Life and Legacy Counsel, Michael and Lelia Winget-Hernandez have spent years guiding families in Central Virginia, through the process of securing their family’s financial legacy.
Today, we’re looking closely at a common question that arises in estate planning—how and when grandchildren inherit in Virginia.
Virginia’s Intestacy Laws
Virginia’s intestacy laws, found in Virginia Code § 64.2-200, outline how an estate is distributed if someone passes away without a will. Simply put, intestacy laws decide “who gets what” when there’s no will in place.
If you pass away without a will, Virginia follows a specific sequence to distribute your assets, ensuring they stay within the family. This is where the term “inheritance by representation,” or per stirpes, comes in—meaning assets are passed down the family tree, with each branch receiving an equal share.
In most cases, grandchildren in Virginia inherit only if their parent, who would have been the primary heir, has already passed away. Imagine it like this: if you leave behind a son who survives you, he inherits directly, and your grandchildren do not. But if that son has already passed, your grandchildren step into his place to inherit his share.
Visualizing the Inheritance Process
To make this easier to understand, let’s break it down into a step-by-step flow:
- First Priority: Assets go to the spouse of the deceased, if there is one.
- Next in Line: If there’s no spouse, children inherit equally.
- Grandchildren Step In: If a child is deceased, their children (the grandchildren) inherit the share that would have gone to their parent.
To illustrate, let’s say Susan, a resident of Albemarle County, passed away without a will. She had two children, one of whom predeceased her, leaving two young grandchildren.
Under Virginia’s intestate laws, Susan’s estate would be split between her living child and her two grandchildren, with her grandchildren collectively inheriting the share their parent would have received.
Potential Challenges Without a Will
Intestate succession sounds straightforward, but real-life scenarios can bring complexities.
In some cases, extended family members may contest the distribution, especially if relationships have been strained or substantial assets are involved. Without clear directives in place, legal challenges might arise, potentially prolonging the process and increasing expenses.
Why a Will or Trust is Essential for Grandparents
Creating a will or establishing a trust gives you control over your assets and allows you to name your grandchildren as beneficiaries if you wish. This approach can also ensure that your intentions are clearly outlined, helping to prevent misunderstandings.
Wills and trusts offer you flexibility and peace of mind, whether you’re setting funds aside specifically for education or designating that your grandchildren receive their inheritance only upon reaching a certain age.
A Living Trust may suit your goals:
Established during your lifetime, these allow you to make distributions at specific times or for certain purposes, such as educational expenses.
If a Living Trust is not the right fit, we can discuss other estate planning options to ensure your wishes are carried out effectively.
We often see families in the Lake Anna and Charlottesville areas choose trusts to give their grandchildren the benefit of a legacy without placing an immediate financial burden on them. In the end, a properly crafted will or trust can make all the difference in preserving family harmony.
Per Stirpes vs. Per Capita Distribution
Understanding the difference between per stirpes and per capita distribution can have a big impact on setting up a will or trust.
- Per Stirpes: As mentioned earlier, with per stirpes, each branch of the family tree inherits equally by representation. This method often appeals to grandparents wanting to ensure that each family branch receives a fair portion.
- Per Capita: In per capita distribution, assets are divided equally among all direct descendants. This means that grandchildren might receive the same inheritance as their parents, which can lead to very different outcomes depending on family structure.
For example, if you specify per capita distribution, your three grandchildren might each inherit a third of the estate, regardless of whether their parents are still living.
For some families, this can be a fair way to divide assets. However, for others, per stirpes might be the better option, especially if it’s essential that children receive a larger portion than grandchildren.
Special Circumstances for Grandchildren’s Inheritance
While grandchildren typically inherit only if their parent has predeceased the grandparent, some situations can lead to exceptions:
- Disinheriting a Child: In Virginia, if a grandparent disinherits a child, they may wish to name their grandchildren directly in their will to ensure they still receive a portion of the inheritance. Disinheriting is a legal process that requires specific language to be enforceable, and consulting with a knowledgeable estate attorney is crucial here.
- Adopted Grandchildren: Legally adopted grandchildren inherit the same as biological grandchildren in Virginia. If you have adopted grandchildren, it’s wise to name them explicitly in your estate plan to remove any ambiguity.
- Special Needs Trusts: If a grandchild has a disability, a special needs trust can ensure they receive their inheritance without jeopardizing eligibility for government assistance programs. This provides financial support while protecting the grandchild’s access to essential benefits.
Frequently Asked Questions
Here are some common questions we hear about grandchildren’s inheritance:
Can I prevent my grandchildren from inheriting?
Yes, you can explicitly state this in your will. However, we encourage you to consider this carefully and discuss any decisions with family members to avoid future conflicts.
What happens if my grandchild is a minor when I pass away?
In Virginia, minors can’t directly inherit large sums of money. Instead, the inheritance may be placed in a trust or managed by a guardian until the child reaches adulthood.
How can I protect my grandchildren’s inheritance?
You can specify a trust within your will that dictates how funds are managed, preventing misuse or mismanagement of their inheritance. For example, funds can be distributed over time or tied to milestones like graduating college or reaching a certain age.
Ready to Secure Your Grandchildren’s Future?
If you’re considering how best to include your grandchildren in your estate plan, Commonwealth Life and Legacy Counsel can help.
Michael and Lelia Winget-Hernandez are here to make the process as straightforward and comfortable as possible. With decades of experience in estate planning, they’re ready to work alongside you to build a plan that reflects your family’s unique needs.
Serving Fluvanna, Zion Crossroads, Louisa, Albemarle, Charlottesville, Scottsville, Powhatan, and beyond, our commitment is to provide clarity, warmth, and guidance in estate planning for families just like yours.
To start planning your family’s future, contact us today. You can reach us at (804) 598-1348 or info@winget-hernandez.com, or fill out our online contact form.