JGB October 2024 Newsletter
Every so often, people ask us, “What happens if there’s no will?” It’s a common concern that usually comes up when folks are worried about the costs of creating a will, as part of a larger estate plan, or when aging parents hesitate to finalize their estate plans, despite their children's best efforts. While these concerns are valid, the truth is that dying without an estate plan can create significant complications for your loved ones. In Virginia, if you pass away without a will, the laws of intestacy of the Commonwealth decide who inherits your assets. Unfortunately, this process may not align with your personal wishes and can cause delays, added expenses, and even family strife.
What is Intestacy?
When someone dies without a will, or other estate planning documents, they are said to have died “intestate.” This means that the Commonwealth of Virginia will decide who gets what based on the rules set forth in Section 64.2-200 of the Code of Virginia. The Commonwealth’s rules do not consider personal relationships, family dynamics, charitable intentions, or what you may have wanted. This means that the people or causes you care about may not receive anything at all.
Also, intestacy is not just for those who do not have a will. It can also happen if the will is deemed invalid or incomplete by the Clerk of Court. Virginia has strict requirements for wills, and self-prepared documents or those created in other states often lack the necessary legal formalities. In such cases with an invalid or defective will, your estate could still be treated as intestate.
How Are Assets Distributed?
Virginia’s intestate succession laws follow a strict hierarchy for determining who inherits your estate in the absence of an estate plan. Here's how it works:
If you have a surviving spouse and children:
Your spouse gets everything if all the children are also your spouse's children.
If any of your children are from a previous relationship, your spouse gets one-third, and your children divide the remaining two-thirds.
If there’s no spouse, but there are children:
Everything goes to your children (or their descendants if a child has predeceased you).
If there’s no spouse and no children:
Your estate goes to your parents, and if they’re not living, it passes to your siblings (or their descendants).
If there are no close relatives:
Your estate is split between your maternal and paternal grandparents, aunts, uncles, or their descendants. This process continues up the family tree if necessary.
If no relatives can be found:
- The Commonwealth of Virginia takes your entire estate.
This rigid formula may not reflect what you would want. For instance, an unmarried long-term partner, stepchildren, your favorite charity, or your home church would receive nothing under these rules. By not having an estate plan, you allow the Commonwealth to dictate how your assets are distributed, which may not coincide your values or your goals.
- Estate Administration Without a Will
Without an estate plan, settling your estate becomes more complicated. The Clerk of Court will appoint an administrator—someone responsible for managing your estate. If multiple people are entitled to inherit, they can choose one person to serve as the administrator, or they may all serve as co-administrators.
After 30 days, the Clerk can appoint the first eligible person who requests the role, regardless of their relationship to you. This can result in someone you did not expect, such as an estranged child, taking charge of your estate.
If 45 days pass and no one has stepped up, the Clerk can appoint a charitable organization that had a legal relationship with you, such as a former guardian or conservator. After 60 days, anyone, including your creditors, can be appointed.
- Challenges and Delays
Administering an estate without a will often leads to challenges and delays. Probate, the legal process of distributing assets and paying debts, becomes more difficult when there is no clear direction. Even straightforward tasks, such as selling real estate, may require seeking additional court approval, slowing down the already lengthy probate process.
Disagreements among heirs are also more likely when there is no will. Family members may argue about who should manage the estate, how assets should be divided, or even whether certain debts should be paid. These disputes can increase costs, delay asset distribution, and create lasting family fractures.
Additionally, without a named executor, the Court may select an administrator that may not be someone you would have chosen or who respects your values.
- The Impact on Minor Children
One of the most important aspects of estate planning is deciding who will care for your minor children. If both parents pass away without a will, the Court will appoint a guardian. Although the Court’s decision will be based on the child’s best interests, the decision may not align with your wishes for how your children should be raised.
Furthermore, minors cannot hold assets in their own names. In Virginia, any inheritance for a minor will be held in a court-supervised trust until the child turns 18, at which point they receive the total inheritance outright. Depending on the amount of money involved, this might not be in the best interests of an 18-year-old. A valid estate plan allows you to control when and how your children receive their inheritance, offering greater protection and ensuring their future.
How to Avoid Intestate Succession
The best way to avoid the complications of intestate succession is by creating an estate plan. A properly executed estate plan lets you clearly state how your assets should be distributed, who should manage your estate, and who should care for your minor children. It also helps avoid family disputes, reduces legal costs, and streamlines the administration of your estate.
While some people worry about the cost or complexity of estate planning, the long-term emotional and financial costs of not having a properly executed estate plan are far greater. Sitting down with an attorney is a simple, proactive step toward ensuring your wishes are honored and your family is protected.
Act Today
Do not let the Commonwealth decide what happens to your legacy. Sitting down with one of our experienced JGB attorneys —conveniently located in both Richmond and Williamsburg—can give you the peace of mind you need. We will guide you through the process of creating your estate plan and make sure your estate plan reflects your wishes. Schedule a consultation today and take the first step toward securing your future and your family’s well-being.
About the Author: Mike Hendricks is a Partner at Johnson, Gasink & Baxter, LLP, specializing in estate, trust, and business law with clients across the Commonwealth. He values the uniqueness of each client and their individual needs. At Johnson, Gasink & Baxter, LLP, Mike and his team are committed to protecting clients and safeguarding their loved ones. Outside the office, Mike and his wife, Meg, dedicate much of their time to supporting their young daughter's extracurricular activities. Committed to serving his community, Mike is actively involved with several boards, including the Bon Secours Mary Immaculate Foundation and the Friends of the Williamsburg Regional Library Foundation.