Last updated on May 1st, 2019
According to AARP, sixty percent of adults in the United States don’t have a will. If someone dies intestate (without a will) in Virginia, the state’s succession laws will determine who inherits their property.
In this guide, we’ll outline the 7 steps you need to follow in order to settle the estate of a loved one who died without a will in Virginia.
Step 1: Breathe
First, don’t rush. Virginia has no set time limit for settling an estate, so you can take the time you need to grieve and get your affairs in order before beginning to settle the estate.
However, the courts do recommend that you start the process within a week to 30 days after the funeral.
This is because, after a certain amount of time, other parties (such as your loved one’s creditors or a non-profit working on your loved one’s behalf) can begin the probate process without you.
Step 2: Make a List of Heirs
Next, you should make a list of heirs who could have a claim to the estate. If your loved one died without a will, the Virginia Code lists a specific order of heirs based on their relation to the deceased individual:
- The surviving spouse, unless the decedent had children with someone else. In this case, all of the decedent’s children will split 2/3 of the estate (including any children from a former spouse), while the surviving spouse will receive 1/3 of the estate.
- If there is no surviving spouse, the decedent’s children and their descendants.
- If there are no children (and no spouse), then to the decedent’s parents.
- If the decedent’s parents are also deceased, then to the decedent’s siblings and their children.
- If there are no individuals who fit the above description, then the estate passes to the decedent’s grandparents, uncles
andaunts, great-grandparents, etc. as outlined in the Virginia Code.
For instance, if there is a surviving spouse, 100 percent of the estate will go to them. If there is no spouse, but there are children who are descendants of the deceased, the estate will be divided amongst the children.
In very rare cases where the succession process doesn’t turn up any family members, the estate will go to the Commonwealth of Virginia.
Special Succession Cases
There are also a few special cases you should be aware of:
- Adopted children hold the same inheritance rights as biological children.
- Foster and step-children may only claim a share of the estate if they
were legally adopted. If you want a foster or step-child to inherit from your estate, you must specifically say so in a will.
- Grandchildren will only inherit part of the estate if their parent (the child of the deceased) is not alive to inherit their share. If there are multiple grandchildren, each will inherit an equal part of their parent’s share of the original estate, as seen in the picture above.
Since families can be complicated, it’s useful to make a complete list of the possible heirs to help make sure the division of assets goes as smoothly as possible.
Step 3: Collect the Necessary Documents
Next, you should begin to prepare for probate. “Probate” is a legal term which refers to the process of dividing up an individual’s assets after their death.
There are several documents you should collect before you begin to file for probate.
Death Certificate – In most cases, the funeral home you’re working with can get death certificates on your behalf.
You’ll need this certificate to begin the probate process, to change the ownership of joint accounts, and to find the date of death values for investments.
The general rule is to get a death certificate for every major asset in the estate (cars, houses, bank accounts), as well as a few extra certified copies for things such as life insurance policies and veterans’ survivor benefits.
For this reason, you should request 8-12 copies of this certificate at a minimum.
All Tax Information Relating to the Estate – As part of the probate process, you must file a final tax return on behalf of the deceased. We go into further detail about the necessary taxes you need to file in Step 6 below, but you can file these taxes as soon as you want.
A List of All Possible Heirs – This is the list you completed in the previous step.
An Inventory of all Assets and Debts – One of the most time-consuming parts of the probate process is making an inventory of all the decedent’s assets and debts. It’s smart to begin this process early, especially if you are uncertain whether or not their total estate is worth less than $50,000.
Step 4: Submit the Information to the Circuit Court
After you’ve acquired all (or most) of the documentation listed above, you should take this information to the Circuit Court in the county or city where the decedent last resided.
If you can’t determine where they last lived, you can choose any county or city where they owned real estate.
Additionally, it’s a good idea to make an appointment with the Clerk before you go. The Clerk will be your point of contact throughout the probate process, and can help advise you about the probate process in general.
Step 5: Go Through the Qualification Process
Whenever a person dies, the court will appoint either an executor or an administrator to settle their estate.
“Executors” are individuals who are specifically named in a will to take on the responsibility of carrying out the decedent’s last will and testament.
“Administrators” are individuals appointed by the court to settle an estate if an individual dies without a will. For this reason, the first thing the Clerk will ask you to do is name an administrator to settle the estate.
If only one person is interested in the job, the court will usually appoint them as the administrator. If several people are interested, the court will decide on an administrator based on a variety of factors, such as their relation to the deceased and whether or not they are qualified for the job.
It’s also important to note that if you begin the probate process within 30 days of the death, the court will only approve an administrator with the approval of all other heirs. After 30 days, the court will approve the first qualified person to step forward.
However, you only need to go through the qualification process if the estate is worth $50,000 or more.
For estates with a value of less than $50,000, the Clerk will usually just allow the heirs to divide up the estate as they see fit (so long as the division is equitable).
Step 6: Divide up the Assets
First, it’s important to note that some assets don’t go through probate.
For example, since life insurance policies have a named beneficiary, the proceeds will pass directly to that person. Similarly, any retirement accounts, IRAs, and other accounts marked as “payable on death” or “transfer on death” will also pass to a named beneficiary.
As a side note, this is why living trusts are important tools for protecting assets. These trusts allow you to bypass many parts of the probate process by simply placing your assets into a legally separate trust fund.
The distribution of all other assets follows the following hierarchy as established by Virginia law:
- Funeral Costs – The first distribution from the estate will go to pay for funeral and burial costs.
- Taxes – As noted above, there are several taxes that the estate must pay before distributing any further assets. These can include:
- Probate Tax – This is paid at the beginning of the probate process. It’s generally $1.00 per $1,000 value of the estate for state tax, and $0.33 per $1,000 value for local tax, if applicable.
- Federal Income Tax – You must file a final federal tax return on behalf of the deceased.
- State Income Tax – You must file a final state tax return on behalf of the deceased.
- Personal Property Tax – This is a final personal property tax payment for the property of the deceased.
- Estate Taxes – These taxes are only for estates whose value exceeds the federal threshold of $11.4 million per individual.
- Debts – The estate will then distribute money to pay any outstanding debts. Often, the estate will sell assets to pay off any debts that are not covered by the estate’s liquid funds. This could include a home, car, or any other valuables that the estate can turn into cash.
- Inheritance – The remaining money (after paying the administrator) will be distributed to those who inherit the estate, in the succession order mentioned above.
Finally, you should note that the court can compel the administrator to perform this step if they fail to finish dividing up the estate by 6 months after the death. If an administrator is failing to perform their duty, you should bring it to the attention of the Clerk who is in charge of the case.
Step 7: Close the Estate
Once you finish paying taxes, settling debts, and managing the distribution of assets, you’ll go back to the Clerk of the Circuit Court to officially close the estate.
Virginia Intestate Succession FAQ
Settling an estate can take months, and administrators sometimes have questions about what they can and cannot do.
Below, we’ll list some of the most frequently asked questions about the Virginia probate process.
Do I have to tell the court if someone died?
Yes. You need to notify the C
Can the court compel someone to be the administrator of an estate?
No. Administrators must take an oath that they can and will manage the estate properly. Many people don’t have the resources to take on such a time-consuming task.
For this reason, you have the legal right to refuse if the court asks you to be the administrator of the estate.
What happens when the estate has more debt than assets?
Sometimes, an estate has more debt to pay than assets. When this happens, the estate is called “insolvent.”
In this scenario, any remaining assets will first be used to pay funeral and burial costs. After that, the estate distributes the remaining assets among the debtors until they deplete the estate.
In this case, the administrator can give up their right to manage the estate and hand it over to another interested party, such as a creditor. The creditor can then take on the estate themselves and settle it as needed.
The good news is that family members aren’t responsible to pay off a loved one’s debts after they die. However, any joint accounts (such as if you share a bank account with a spouse) may be drained to pay outstanding debts.
The same is true for jointly owned property, such as the family house or car.
Do I need a lawyer to settle the estate?
Maybe. Simply put, the more complicated an estate is, the more you will benefit from having a probate lawyer.
For estates worth less than $50,000 you don’t really need a lawyer. If an estate is worth more than $50,000, but there is only one heir, there may also be little need to hire a lawyer.
For larger estates and more complicated situations, it’s smart to at least speak to a lawyer first to make sure you’re going through the probate process properly. This is especially true if you believe that someone will contest the division of assets or other relevant parts of the probate process.
What happens if the estate is worth less than $50,000?
For small estates, you generally don’t need to hire (or pay) an administrator. Instead, you can just divide up the estate as needed, then file an affidavit with the court which shows you did so equitably (i.e. “fairly”).
This affidavit should be in line with the Virginia Code, and all known heirs should sign it.
For example, if two brothers are dividing a $40,000 estate left to them by their father, all they would need to do is split the estate 50/50.
In this scenario, the brothers could skip Step 5 from above entirely and simply divide up the estate as directed by the Clerk of the Circuit Court. This can save both time and money in the long run.
If someone dies without a will in Virginia, their estate will go through the intestate succession process.
First, they must pay the funeral expenses, taxes and debts. Then, the rest of the estate goes to the spouse, the children, or whoever is next in succession as outlined in the Virginia Code.
For estates that are simple to
In most other cases, you’ll need an administrator to take the estate through probate. For complicated estates, it may also be wise to hire an estate lawyer to make sure you handle the probate process properly.