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By Stephanie C. Smith

Over the years, many clients, neighbors, friends, and family members have asked me what would happen to their assets if they were to die without a Will. Some people believe that if they die without a Will, their assets would become the property of the state in which they live. In fact, this belief is a misconception in all but the most limited circumstances.

Property passes from a person who dies (known under the law as a “decedent”) to persons, trusts, charities, and entities in a variety of different ways. Whether or not a decedent has a Will, assets that have a named beneficiary, such as life insurance or a payable-on-death bank account, will generally convey to the named beneficiary or contingent beneficiary as long as that beneficiary survives the decedent. Property that the decedent owned jointly with right of survivorship, such as a home, bank account, or investment account, generally passes to the joint owner as long as the joint owner survives the decedent. When the named beneficiaries or joint owner do not survive the decedent, the existence or non-existence of a Will becomes very important.

If the decedent has left a valid Will meeting all of the requirements of the Virginia Code, the Will should be probated, and the decedent’s assets not otherwise conveying to joint owners or named beneficiaries should pass according to the terms of the Will. If the decedent dies without a valid Will, the person is deemed to have died “intestate”, and Virginia Code section 64.2-200 determines how the decedent’s assets not otherwise conveying to joint owners or named beneficiaries will pass, regardless of the decedent’s wishes. This Code section directs the course of descents to heirs, as follows:

  1. To the surviving spouse of the decedent, unless the decedent is survived by children or their descendants, one or more of whom are not children or their descendants of the surviving spouse, in which case, two-thirds of the estate descends and passes to the decedent's children and their descendants, and one-third of the estate descends and passes to the surviving spouse.
  2. If there is no surviving spouse, then the estate descends and passes to the decedent's children and their descendants.
  3. If there is none of the foregoing, then to the decedent's parents, or to the surviving parent.
  4. If there is none of the foregoing, then to the decedent's brothers and sisters, and their descendants. 
  5. If there is none of the foregoing, then one-half of the estate descends and passes to the paternal kindred and one-half descends and passes to the maternal kindred of the decedent in the following course:
    1. To the decedent's grandparents, or to the surviving grandparent.
    2. If there is none of the foregoing, then to the decedent's uncles and aunts, and their descendants.
    3. If there is none of the foregoing, then to the decedent's great-grandparents.
    4. If there is none of the foregoing, then to the brothers and sisters of the decedent's grandparents, and their descendants.
    5. And so on, in other cases, without end, passing to the nearest lineal ancestors, and the descendants of such ancestors.
    6. If there are either no surviving paternal kindred or no surviving maternal kindred, the whole estate descends and passes to the paternal or maternal kindred who survive the decedent. If there are neither maternal nor paternal kindred, the whole estate descends and passes to the kindred of the decedent's most recent spouse, if any, provided that the decedent and the spouse were married at the time of the spouse's death, as if such spouse had died intestate and entitled to the estate.
    7. If there is no other heir of a decedent's real estate, such real estate is subject to escheat to the Commonwealth in accordance with Chapter 10 (§ 55-168 et seq.) of Title 55.

Code 1950, § 64-1; 1956, c. 109; 1968, c. 656, § 64.1-1; 1977, c. 474; 1982, c. 304; 1985, c. 189; 1990, c. 831; 2012, c. 614.

As the above list illustrates, property passing by intestate succession may result in a different distribution scenario than the decedent would have planned. In order to ensure that your assets pass in the order and manner you wish to the beneficiaries you designate, and that the person or entity handling the estate is who you wish to have serve, it’s important to plan ahead and seek the assistance of an estate planning attorney to assist with a Will and other planning. The time, effort, and expense of working with an estate planning attorney is well worth it.