Virginia Probate – The Laws of Intestacy

By Attorney Jennifer Kahl, July 16, 2019

What happens when a person dies without a Last Will and Testament? This is called dying “intestate.” The distribution of such an estate is governed by the Virginia’s laws of intestacy.

What property is subject to the intestacy laws?

First, property that owned in joint tenancy with another living person passes to the surviving owner.  This property would not be affected by a Will, even if the decedent had one.

Second, property which has a living beneficiary designated passes directly to the named beneficiary. Again, this property goes to the beneficiary, regardless of whether a Will exists.

Finally, property which has no joint owner and no beneficiary designated becomes part of the probate estate. This is the property that will pass by Virginia’s intestacy laws.

Intestate succession

For the most part, intestate succession is pretty intuitive:

  1. If the decedent has a spouse, the spouse inherits. (See exception, below)
  2. If the decedent has no spouse, the children inherit, per stirpes.
  3. If the decedent has no spouse or children, the decedent’s parents inherit in equal shares, or the sole surviving parent inherits the whole.
  4. If there is no spouse, children, decedents of the children, or parents, then the decedent’s siblings inherit, per stirpes.
  5. If none of the above, the pattern continues, going up the generations and down to the decedents until the nearest living relatives are found. For a specific description of this process, see the statute.

There is one important exception to remember. If a decedent leaves behind a spouse, and at least one child who is not also the child of the spouse, then the spouse only inherits one-third (1/3) of the estate. All the decedent’s children share the remaining two-thirds (2/3). For example, suppose Donald is married to Cindy, and Donald has one child, Max, from a prior marriage and one child, Stephanie, from his marriage with Cindy. If Donald dies intestate, Cindy will only get one-third (1/3) of the estate. Max and Stephanie will split the other two-thirds (2/3).

Also remember that, in addition to the intestate share, a surviving spouse may have other claims against the estate.

Per Stirpes

In the section above, you see the term “per stirpes” (per stir-pees). This is a Latin phrase meaning that if an heir predeceases (dies before) the decedent, the children of the heir inherit the share that the heir would have received.

For example, suppose Stephanie was already dead at the time Donald passed. If Stephanie had children of her own, those children will inherit Stephanie’s share. If Stephanie has no children, then Max will inherit Stephanie’s share.

Conclusion

Administering an intestate estate comes with its fair share of challenges. Contact an attorney at The Heritage Law Group to assist you with this process.