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:
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.