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Understanding Intestate Succession and What It is

Alison R. Zizzo

Key Takeaways

  • Dying intestate means passing away without a valid will. In such cases, the decedent’s assets, including real estate and personal property, are distributed according to state intestate succession laws.
  • These laws dictate the order of inheritance when someone dies intestate. In Virginia, the order typically starts with the surviving spouse and children, followed by parents, siblings, and other relatives if no immediate family is present.
  • Intestate estates undergo probate, where courts oversee the distribution of assets. This lengthy process involves identifying assets, paying debts, and distributing the remaining estate according to state laws.
  • The Uniform Partition of Heirs Property Act (UPHPA), offers protection for inherited real estate in intestate cases. It helps prevent forced sales of property by co-tenants and aims to protect generational wealth.
  • When multiple heirs inherit property, disputes may arise over its use or division. Virginia law provides for partition actions, allowing for fair division of property among co-owners, either by physical division, sale, or allotment.

According to a survey by WealthCounsel, more than one-third of Americans have experienced or witnessed family conflict due to a lack of estate planning. When someone dies without estate planning documents (e.g., a valid will), they are considered intestate, and their assets are processed in probate and distributed according to state succession laws. Not only does this cause stress for their loved ones, but it can also divide property ownership between several beneficiaries and create conflict about how to handle that property. Learn about intestate succession, how the Uniform Partition of Heirs Property Act (UPHPA) helps protect your rights, and how a knowledgeable Virginia estate litigation attorney can help defend those rights in a cotenant land dispute.

What You Need to Know About Intestate Succession and Probate in Virginia

Woman handing a model house to a child

Personal estate planning can provide confidence and peace of mind that upon your death, your assets will pass to those you choose rather than someone you do not know dividing your estate among your heirs. However, if you die intestate, that may be exactly what will happen.
Dying intestate means an individual does not have a valid last will at the time of death. When this happens, the Virginia probate courts take charge of the decedent’s estate and compile and divide assets. These assets may include any real and personal property that the decedent did not transfer to a living trust. Bank accounts, life insurance proceeds, or retirement accounts with no named beneficiary will also be subject to probate court control.
Once these assets are identified and compiled, the court will follow intestate succession laws to award the assets to the decedent’s closest relatives within a defined order, which includes:

  • The surviving spouse and any surviving children (with an intestate share going to biological children and any adopted children but not to non-adopted stepchildren)
  • The children of the decedent, if there is no surviving spouse
  • The decedent’s parents, or surviving parent, if there is no surviving spouse or children
  • The decedent’s siblings, if both parents are also deceased
  • If none of the above exist, the court will follow Virginia statutes and distribute a share of the estate to contingent beneficiaries (e.g., maternal or paternal grandparents, nieces, or nephews).

In other words, the intestate estate will undergo descent and distribution according to intestacy law rather than the actual wishes of the decedent. Unfortunately, when it gets to this point, your family property and wealth will become part of the probate process and will be at the court’s mercy.
The probate court process can be long and costly, and it involves facilitating the transfer of a deceased individual’s assets in an orderly way. At the same time, a Commissioner of Accounts must provide oversight and accountability for the fiduciary and each estate beneficiary. The overall process requires several steps (including a probate tax return, inventory form, and List of Heirs) and fees, all of which an attorney knowledgeable in probate laws in the Commonwealth of Virginia can navigate.

What Exactly is the Uniform Partition of Heirs Property Act?

While real estate is considered an asset and is included in the probate process, several states have recently adopted the Uniform Partition of Heirs Property Act (UPHPA), an advancement in protection for inherited property. This act can play a major role in how the decedent’s property is handled and helps to protect generational wealth by protecting against predatory real estate speculators.
When someone dies intestate, their property is shared equally among their heirs, who become tenants-in-common. As such, these heirs become vulnerable due to the ability of another individual tenant-in-common to force a partition of the property. This forced action can divide the family, resulting in strained relationships. It can also prompt the need to sell the property altogether. Unscrupulous real estate speculators often buy out one tenant to file a partition action and force a sale at a price significantly lower than the property value. The UPHPA can protect against these challenging situations.
The UPHPA was first proposed by the Real Property, Trust, and Estate Law Section within the American Bar Association and adopted by the Uniform Law Commission in 2010. The impetus behind the Act was the failure of the current partition laws to address the issue of involuntary loss of land among family members who become tenants in common following the death of a loved one.

The Uniform Partition of Heirs Property Act in Virginia

In 2019, the Uniform Partition of Heirs Property Act passed in the Commonwealth of Virginia, adopting most of the measures included within the earlier proposed UPHPA. As such, the Virginia Act protects tenants’ property rights through necessary due process, including notice, appraisal, and right of first refusal, to prevent a forced sale. However, when co-tenants select not to exercise their due process rights, a court appraisal and fair market value sale occur.
Virginia’s new partition laws codify what most courts were already practicing (appraisal, sale as a last resort, and use of open market sale of the property). However, the requirement for an appraisal created an additional hurdle for low-income clients. In some instances, no appraisal was required because the heirs participating in the suit agreed to a sale, and the other heirs were in default. In those cases, the special commissioner appointed to sell the property would sometimes obtain an appraisal before the sale for liability protection. However, the cost of the appraisal was taken from the proceeds, and the partitioning parties were not made to cover the costs upfront.
While adding the requirement for an appraisal under the UPHPA is beneficial and protective of all heirs, it now means that the partitioning party has to cover the expense upfront.

How Can a Property be Partitioned in Virginia?

When a loved one dies intestate (without a valid will), the decedent’s heirs become co-owners of the inherited property. However, these co-owners may disagree on how to use the property or how to divide it between them fairly. One heir may claim that they spent more money to maintain the property, while another may be responsible for damage that affects the property value. These family disagreements can become emotional and cause ongoing conflict.
As a result, if the parties cannot agree on the fair division of the inherited property, they can file a partition action in the Virginia courts. There are three ways in which the court can partition the property: partition in kind, partition by sale, or partition by allotment. Different situations warrant these different solutions, and understanding the details of each solution is critical to everyone involved.

Partition in Kind

The Commonwealth of Virginia has an in-kind partition preference. Partition in kind means the property will be divided fairly and equitably into separate legal parcels for each designated co-owner.
Virginia courts, however, will not order this type of partition if any co-owners stand to receive a land portion that is worth noticeably less than what they would receive if the property were to be sold. The court must also consider local zoning ordinances.

Partition by Sale

A partition by sale is required when a co-owner attempts to force the sale of the inherited property. In Virginia, the court will usually appoint a real estate broker to oversee such a sale, and that broker will need to file a detailed report.
Such a court-ordered sale will most often be on the open market. However, in some cases, the court may determine that sealed bids or sales at auction will be in the better interests of the involved parties.
If a reasonable offer is made, the court order stipulating that the property undergo partition by sale prevents any co-owners from blocking the sale. If an offer below the appraised value is received, the court must hold a hearing to determine whether or not to approve the sale at that price.

Partition by Allotment

Partition by allotment involves the purchase by one or more co-owners of another’s interest in the property. In other words, a co-owner wishes to buy their fellow co-owner out at a price set per the court-ordered appraisal.

Considerations for Partition by Allotment

To undergo partition by allotment, the courts must consider a number of factors.

  • Collective duration of the ownership or possession of the property
  • Sentimental attachment, including ancestral or special value to the property
  • Use of the property by one party and the degree of harm if they could not continue using the property
  • Degree of contribution to property taxes, insurance, and other ownership expenses
  • Degree of contribution to the maintenance or improvement of the property
  • Any other relevant factor

Partition actions vary with each case, and which one is right for your circumstances will need review and understanding before taking the next step. Seek the legal help and guidance of a Virginia estate litigation attorney to help you make the right decision and protect your rights.

How Can a Virginia Beach Estate Litigation Attorney Help Me?

Last will and testament document

When it comes to inheriting property when a loved one dies intestate, you may find the process confusing and complex, especially if other heirs will be co-owners of the property along with you. Family members of the decedent often disagree on how to use the inherited property best, and problems can abound, requiring the assistance of the courts.
A Virginia Beach estate litigation attorney can help you at times like this in several ways.

  • Help you understand the probate system and property rights of heirs
  • Explain the differences between partition in kind, partition by sale, and partition by allotment
  • Compile and assemble proof of your rights during partition
  • Protect you during disputes with other co-owners of the inherited property
  • Communicate with necessary parties, including other property co-owners’ lawyers, and entering negotiations whenever possible to avoid litigation
  • Represent you in any litigation before a Virginia court, should it be necessary

Your Virginia Beach estate litigation lawyer will be knowledgeable in Virginia law, estate planning, and the Uniform Partition of Heirs Property Act, providing you with the legal advice and help you need to protect your inheritance. Upon completing these actions, your legal team can also help you prepare your estate planning documents to protect your family assets in the event of your disability or death. These documents may include an irrevocable or revocable trust, last will and testament, health care powers of attorney, financial power of attorney, and protections for any minor or special needs children. We can also guide you on making all bank accounts payable on death and advise on real property measures such as joint tenancy and right of survivorship.

Stand Up for Your Land Rights

When a family member dies without a valid will, you may find yourself the co-owner of inherited property, which can bring family disputes and challenges. Partition of property in these types of situations can take on different forms, and you need to know what your rights are and how to proceed in the most beneficial way possible. The estate litigation lawyers with the law office of Midgett Preti Olansen can help you stand up for your land rights and gain peace of mind that you have taken the right steps. We can also help you protect your family property and avoid future probate.
As a boutique law firm focused on Virginia estate planning, corporate, and tax law, we can provide you with the personal attention you need and deserve at a time when families are often torn apart. We will work diligently on your behalf, whatever your specific legal needs may be now or in the future.
Contact our Virginia Beach office today by calling 757-687-8888 or using our online contact form to schedule an initial consultation and case review. We proudly serve clients in Hampton Roads, including Virginia Beach, Norfolk, Suffolk, Chesapeake, Newport News, Hampton, and the Eastern Shore.

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Written By Alison R. Zizzo


Alison Zizzo is a Shareholder at Midgett Preti Olansen and concentrates her practice in trust and estate litigation, including fiduciary disputes, beneficiary representation, guardian and conservatorships, and elder law.

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