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What is the Difference Between Intestate and Testate?

Stephanie C. Smith

Key Takeaways

• Without a valid will, your assets may be distributed according to state laws, causing family disputes and financial hardships.

• Virginia’s intestacy laws specify how assets are distributed in the absence of a will, prioritizing spouses, children, parents, and other relatives.

• The estate’s value is crucial for taxation and distribution purposes, and it involves both real estate assessments and fair market valuations of personal assets.

• In Virginia, all heirs must agree to sell inherited property unless legal steps like a partition suit are taken, highlighting potential challenges for co-owners.

• Virginia law allows for a replacement if an executor cannot serve, ensuring smooth estate administration even in unexpected situations.

Importance of a Last Will and Testament

A last will and testament allows you to direct what happens to your assets after you die. This makes it a critically important part of the estate planning process. If you do not have a valid will when you die, also known as dying intestate, your loved ones will have no legally binding instructions on how you want your assets distributed to your heirs. If you die intestate, Virginia circuit courts will apply the statutory rules of descent and distribution to determine who receives your assets through the probate process, which can create serious problems for your family. Your family might end up arguing over how to distribute certain assets, which can lead to an expensive and time-consuming probate process (not to mention hard feelings among your heirs). You should consider creating a will so your heirs do not have to deal with intestacy issues, especially if you own significant assets like life insurance, brokerage accounts, vacation homes or cars. You can start creating your estate plan today and protect the assets you worked so hard for in this life. The estate attorneys at Midgett Preti Olansen have extensive knowledge and experience with crafting wills; they can help you properly plan for your future.

Testate vs. Intestate in Virginia

Dying without a will is known under Virginia law as dying intestate. A person with a valid will at their time of death that can go through the probate process is considered testate. Typically, the Clerk of the Circuit Court handles the probate of wills.

Intestate Laws in Virginia

A will allows a person to designate beneficiaries who will receive specific assets or a share of their estate. Since a person who dies intestate does not leave any binding instructions, their personal representative will have to follow the probate procedures established by the Code of Virginia for intestate succession. This applies regardless of whether a deceased person, known as the “decedent,” owned numerous large assets or only had a small estate.

Under Virginia law, the assets of an intestate estate would pass as follows to the heirs at law:

  • All assets go to the decedent’s surviving spouse.
  • If the decedent has surviving children who are not the surviving spouse‘s children, two-thirds of the estate goes to those children, and one-third goes to the spouse.
  • If no surviving spouse exists, all assets go to the surviving children and their descendants.
  • If there are no surviving children or descendants, all assets go to the decedent’s parents or surviving parent.
  • If no surviving parents exist, the estate goes to the surviving siblings and their descendants.
  • If there are no surviving relatives as described above, half of the estate would go to surviving relatives of the decedent’s parents as follows:
    • Grandparents
    • Uncles, aunts, and their descendants
    • Great-grandparents
    • Great-uncles, great-aunts, and their descendants
    • Second-great-grandparents

If a decedent’s personal representative cannot identify any heirs, the estate escheats, or reverts, to the Commonwealth of Virginia.

Any asset subject to the probate process may pass through intestate succession. This includes personal property, bank accounts, and real estate in the decedent’s name. Assets that do not go through probate include the following:

  • Assets that the decedent transferred to a living trust
  • Accounts with a named beneficiary, such as a life insurance policy or IRA (unless the named beneficiary is the estate or is left blank)
  • Real property in which one or more co-owners have a right of survivorship
  • Bank accounts with a payable-on-death designation, or in which one or more co-owners have a right of survivorship

The Importance of Dying With a Will in Virginia

Dying without a will in Virginia often leads to disputes among family members, especially if the decedent’s estate is large or valuable. Families may also fight over who should serve as the estate’s personal representative. With a will, the administration of an estate can go much more smoothly.

How is the Value of Your Estate Determined?

attorney signing paperwork

The court-appointed personal representative is ultimately responsible for determining the value of the decedent’s property and reporting this information to the Circuit Court’s Commissioner of Accounts. They can do this by placing assets into two different categories. 

Real Estate and Other Property

The value of the decedent’s real property is based on the assessment completed by the city or county where it is located. The county assessor’s office will have this information. This only applies to property that the decedent owned solely in their name. Jointly-owned property is subject to a right of survivorship, meaning that it passes outside of probate to the other owner or owners.

Personal Assets

For personal property that the decedent did not hold jointly with anyone else, the value is based on the personal representative’s estimate of the fair market value. A personal representative has a fiduciary duty to the beneficiaries of the estate to make a good-faith effort to determine the value of the estate’s assets. 

Do All Heirs Have to Agree to Sell Property in Virginia?

If, under the Virginia laws of intestate succession, a decedent’s real property passes to multiple heirs, they will personally own that property in equal shares. In this case, ALL of them must agree in order to sell it. 

Suppose, for example, that a decedent has no surviving spouse and three surviving children. The decedent owned a house in their name. That house would pass to the three children. Each child would own one-third of the property. If two heirs want to sell and one does not, they cannot sell. The only option would be for the two who want to sell to file a real estate partition suit. A court could then issue an order forcing the sale of the property.

Another option would be for the personal representative to petition the court to return the real property to the estate. That way, the personal representative would be able to sell it. This typically only happens if the estate’s debts are greater than the value of its assets and the personal representative needs to sell the property to pay those debts.

What If the Appointed Executor for the Will is Deceased?

In addition to providing a list of heirs and instructions for what to do with a decedent’s assets, a last will and testament allows a person to choose a trusted person to administer the estate. The executor, also known as a personal representative, is responsible for determining the value of the estate, paying estate taxes and other debts, and distributing the remaining assets to the beneficiaries. No one can be compelled to serve as an executor, so keeping an up-to-date will with a willing executor is important.

Suppose the executor named in a will cannot perform their duties for any reason, whether they are deceased, legally disqualified, or simply unwilling to do it. In that case, Virginia law provides a procedure for appointing someone to fill the role. A qualifying person must be a beneficiary of the will or someone designated by a beneficiary. Other beneficiaries may object to a spouse or parent of the decedent serving in this role in certain situations involving “desertion or abandonment.” 

How Often Should I Change My Will in Virginia?

lawyer showing clients paperwork

It is best to update your will immediately if you have acquired a major asset, experienced a significant life change, or need to change your executor or remove a beneficiary. For example, you should update your will to reflect a marriage, divorce, or the birth of a new child or grandchild. Even without these major life events, reviewing your will every three to five years can help you keep it up to date. 

Changing a Will or Creating One? Our Attorneys Can Help

Are you looking for an attorney to update or create a will? Do you have a laundry list of assets that you want to remember to include? The knowledgeable Virginia estate and trust administration attorneys at Midgett Preti Olansen can help with your estate planning needs. We handle estate matters throughout the Hampton Roads area and Northeast North Carolina. Contact us today at 757-687-8888 or through our online contact form to schedule a confidential consultation with a member of our team.

Stephanie C. Smith

Written By Stephanie C. Smith


Stephanie C. Smith is a Shareholder in the law firm of Midgett Preti Olansen. Her practice areas include estate planning, estate and trust administration, and business matters. Additionally, Ms. Smith serves as a Commissioner of Accounts for Virginia Beach Circuit Court.

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