Follow us
  >  Probate Without a Will

Probate Without a Will

If you pass away without a valid will, and your assets (other than your real property) that do not have contractual beneficiary designations exceed $50,000, your heirs will have to go through probate to receive them.

Dying without a will is called “dying intestate,” and if you do, the Commonwealth of Virginia will dictate who will receive your assets according to a legal formula called “intestate succession.” 

If your spouse, or parent, or other close family member has died without a will, you may be entitled to inherit from them. But if others are also interested in that person’s property, you may benefit by consulting an experienced probate lawyer who practices in the jurisdiction where the person resided before death.

While Virginia is usually thought of as a “probate friendly” place, it is still daunting for most people, especially for those who are experiencing it for the first time.

To help your family avoid the complexities of managing probate, contact Commonwealth Life & Legacy Counsel law firm from anywhere in Central Virginia at 434-589-2958 and from Powhatan at 804-598-1304 to schedule a consultation.

What Is Intestate Succession?

Intestate succession is a legal formula by which the Commonwealth of Virginia determines who will inherit and in what order when no valid will exists to make that determination. The formula describes who is legally the dead person’s “next of kin.”

In the probate process, the court will oversee the gathering or “marshalling” of the dead person’s assets, the inventory of those assets, and the disposition of those assets, first to the costs of administration and certain end-of-life expenditures, then to creditors, including the government for taxes, and finally, to the heirs. All of these stages of probate are accomplished by a qualified administrator, who is usually an heir, but they can be confusing and sometimes result in personal liability to the administrator if not done correctly. You can help your family avoid intestate administration in probate by contacting an estate planning lawyer with a reputable firm to create a valid last will and testament. Ask an attorney about how to bypass probate altogether with a trust and pour-over will.

Which Assets Bypass Intestate Succession?

Assets that would normally bypass probate will also bypass intestate succession and will distribute directly to your named beneficiaries, including:

  • Life insurance policy proceeds
  • Assets held in a living trust
  • Retirement account funds from a 401(k), IRA, or similar account type
  • Bank accounts with payable-on-death terms
  • Transfer-on-death assets and securities
  • Joint tenancy or tenancy by the entirety properties and real estate

Assets solely owned by you will likely enter intestate succession for probate without a will. A family member may file the appropriate probate documentation with the court and name an administrator of your estate to settle the estate and distribute assets.

Who May Inherit Intestate Assets?

The Code of Virginia lists heirs’ priority according to their relationship with the decedent as follows:

  1. The surviving spouse if the decedent had no children from another relationship.
  2. The surviving spouse gets one third and the decedent’s children who are not also the surviving spouse’s children get two thirds.
  3. The decedent’s children (or their descendants if their parent, the decedent’s child, predeceased them).
  4. The decedent’s parents if there is no surviving spouse or children or grandchildren.
  5. The decedent’s siblings and the children of deceased siblings if there is no surviving spouse, children, grandchildren, or parents.
  6. Extended family of the decedent, including grandparents, uncles, aunts, and cousins.
  7. If the decedent has no surviving family, the entire estate passes into the ownership of the Commonwealth of Virginia.

Before allowing the Commonwealth to decide which assets your family could receive, name your beneficiaries in a will with help from an experienced estate planning attorney.

Contact an Experienced Estate Planning and Wills Firm in Central Virginia

Commonwealth Life & Legacy Counsel has years of experience assisting its neighbors with elder law, estate planning, probate, and trusts. Help your family avoid intestate succession probate without a will. Call the Commonwealth Life & Legacy Counsel law firm from anywhere in Central Virginia at 434-589-2958 and from Powhatan at 804-598-1304 to schedule a free consultation.

Need help with legal issues?