What You Need to Know About Virginia Inheritance Law

July 15, 2023 – Matthew S. Akers & Douglas McCarthy

It’s not uncommon for people to delay creating a will, often unaware of the potential consequences that can arise. Unfortunately, life can be unpredictable, and failing to plan ahead can leave you and your family vulnerable to unintended outcomes.

Many Virginia residents are surprised to learn that strict inheritance laws are in place. If you live or own property in Virginia, understanding Virginia inheritance law is essential for ensuring persons you choose are the ones who benefit from your estate when you pass on.

Whether you already have a will or need to create one as part of your estate plan, understanding the basics of intestate succession and the probate process is key.

If you need assistance with drafting a will, estate planning or creating a trust, our knowledgeable team is dedicated to helping you secure your future and protect your loved ones.

Contact us at (540) 722-2181 for a personalized consultation with our estate planning attorneys. Let McCarthy & Akers go to work for you!

Virginia Inheritance Law: An Overview

Virginia inheritance law encompasses a range of legal provisions and regulations that govern the distribution of a person’s assets upon their passing (the decedent).

It outlines the rules and procedures for transferring property and addresses various aspects such as wills, intestate succession, and probate.

Last Will and Testament

One fundamental aspect of Virginia inheritance law revolves around a last will and testament (will). A will is a legal document that allows an individual, referred to as the testator or testatrix, to specify their wishes regarding the distribution of their estate upon their death.

To be considered valid in Virginia, a will must meet certain requirements. The testator must be at least 18 years old and of sound mind, and the will must be in writing, signed by the testator, or signed by someone at their direction and in their presence.

Additionally, the will must be signed by at least two competent witnesses who saw the testator sign or acknowledge the document.

These witnesses must also sign the will to affirm its authenticity. It’s advisable to consult with an experienced estate planning attorney when drafting a will to ensure compliance with all legal formalities and to clarify any specific concerns or requirements.

Order of Inheritance: Intestate Succession in Virginia

However, when a person passes away without leaving a valid will, the distribution of their estate is governed by the laws of intestate succession. In Virginia, the Code of Virginia outlines the specific guidelines for intestate succession, which determine how the decedent’s property will be distributed among their heirs.

Under Virginia’s intestate succession laws, the distribution of assets depends on the surviving family members of the decedent and is distributed in the following order:

  • Surviving spouse
    • Receives the entirety of the estate if all children also belong to the surviving spouse
    • If one or more of the surviving children are from another partner, the spouse receives one-third of the estate
  • Children (biological or legally adopted)
    • Receive the entire estate if there is no surviving spouse
    • If a surviving spouse is present, they receive two-thirds of the estate if they do not belong to the surviving spouse. If they are children of the surviving spouse, they don’t receive anything
    • Children yet to be born at the time of the decedent’s death are treated the same as living children
    • Grandchildren do not automatically inherit unless their parent (the decedent’s child) predeceased the decedent. If that is the case, the grandchildren receive what would have been their parent’s shares
  • Illegitimate children
    • Have a right to inheritance if certain conditions are met (marriage between parents but later voided, proven paternity, acknowledged by parent, child support was not refused)
  • Parents
  • Siblings
  • Grandparents, uncles, aunts, and their descendants
  • Great-grandparents, siblings of great-grandparents, and their descendants
  • Distribution continues onward, extending to the closest lineal ancestors and their respective descendants, creating a continuous chain of inheritance that spans across generations

If no heirs from the above categories are alive or if they cannot be located, the estate will escheat or revert to the Commonwealth of Virginia.

In all cases, the probate process, including settling debts, takes place before any estate distribution. A minimum asset threshold ($50,000 in personal property or ownership of real estate) applies for the probate process.

If you find yourself in a situation where intestate succession applies, it’s advisable to consult with qualified probate lawyers in Virginia to ensure proper compliance with the law and to address any unique factors specific to your case.

Remember, intestate succession provides a predetermined framework for the distribution of your estate in the absence of a valid will. However, by creating a valid will, you gain greater control over precisely how your assets are divided among the beneficiaries you have personally chosen.

Probate Process in Virginia

The probate process is another critical component of Virginia’s inheritance law. It refers to the legal procedures that occur after someone passes away to ensure their assets are correctly distributed.

Depending on whether a valid will is in place or not, the probate process in Virginia can look quite different.

With a Valid Will

When a person passes away and leaves a valid will, their wishes regarding the distribution of their estate will guide the probate process. The will is filed with the appropriate Virginia circuit court, which validates it and appoints the executor named in the document.

Without a Valid Will (Intestate)

Things can get a bit more complicated if a person dies intestate. Without a will to guide them, the court will appoint an administrator to manage the decedent’s estate.

When it comes to distributing the remaining assets, the laws of intestate succession come into play.

Remember, this blog provides a general overview of Virginia inheritance law. We recommend consulting with qualified professionals, such as estate planning attorneys, for personalized advice tailored to your specific circumstances.

Partner with McCarthy & Akers: Your “Estate Planning Attorneys Near Me”

Don’t leave the distribution of your assets to chance. Take control of your estate planning today by contacting McCarthy & Akers, PLC. Our experienced team of estate planning attorneys understands the importance of ensuring your assets go to the people you choose.

Whether you need assistance in creating a valid will or require comprehensive estate administration services, we’re here to guide you through the complexities and protect your family’s future.

No need to search online for “estate planning attorneys near me.” Schedule a personalized consultation by calling us at (540) 722-2181 or contacting us online. You can also visit our offices located in Strasburg, Front Royal, Winchester, and Manassas. Secure your legacy and ensure your loved ones are taken care of. Let us go to work for you!

Don’t forget to download our complimentary guide titled “3 Most Common Threats to Your Estate and Your Family’s Future.” This resource is designed to help you avoid common pitfalls and make the best decisions for your family’s future. Get your copy here.

Copyright © 2023. McCarthy & Akers, PLC. All rights reserved.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.

McCarthy & Akers, PLC
302 W Boscawen St.
Winchester, VA 22601
(540) 722-2181
https://mccarthyakers.com/

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