Probate in Virginia: What Your Family Goes Through Without a Will
If someone dies without a will in Virginia, their estate typically will go through probate. This process can involve the appointment of a personal representative to manage assets, debts, and distribution to heirs.
There are also exceptions and simplified procedures for certain smaller estates.
Those exceptions include the following.
- Certain assets that pass directly to a designated beneficiary may not be part of the probate estate.
- Jointly owned property may pass according to the terms of the joint-ownership agreement.
- Certain small assets may qualify for Virginia’s small-estate procedures.
- A personal asset valued at $35,000 or less may, under certain circumstances, be paid or delivered to a successor without an affidavit.
- A small estate may qualify for transfer by affidavit when the deceased person’s entire personal probate estate does not exceed $75,000 and other statutory requirements are satisfied.
If none of these exceptions or simplified procedures apply, the estate may need to go through the regular administration process.
Succession Laws without a Will in Virginia
Before determining who will inherit which assets, it is important to understand Virginia’s intestate succession laws. When someone dies without a will, Virginia law determines who receives property that was not otherwise disposed of.
If none of the exceptions noted above apply, the estate will be distributed according to the following lines of succession.
- If you are married and all of your children or their descendants are also children or descendants of your surviving spouse, your surviving spouse generally inherits the estate.
- If you have children or descendants who are not also children or descendants of your surviving spouse, your surviving spouse receives one-third of the estate and your children and their descendants receive two-thirds.
- If you have children but no surviving spouse, your children and their descendants inherit the estate.
- If you have no spouse, children, or descendants, Virginia law looks to your parents, siblings, and other relatives according to the statutory order of succession.
- If no qualifying relatives exist, Virginia law provides for the property to pass to the Commonwealth. (Virginia Law)
If you are married and there are surviving children, probate will allocate assets according to the following guidelines.
- If all of your children are also your surviving spouse’s children:
- Your surviving spouse generally inherits the estate that passes by intestate succession.
- If you have children who are not your surviving spouse’s children:
- Your surviving spouse inherits one-third of the estate.
- Your children and their descendants inherit the remaining two-thirds. (Virginia Law)
These rules apply to property that is subject to intestate succession. Assets that pass through beneficiary designations, certain forms of joint ownership, or other arrangements may be handled separately.
Virginia Small Estate Procedures
Virginia has a Small Estate Act that can provide a simpler way to transfer certain personal assets without having a personal representative qualify in the traditional manner.
A “small asset” generally means an asset belonging to or presently distributable to the deceased person, other than real property, with a value of no more than $75,000. This can include certain bank accounts, brokerage accounts, securities, tax refunds, personal property, and other assets. (Virginia Law)
For the affidavit procedure, Virginia law generally requires that at least 60 days have passed since the person's death, no application for appointment of a personal representative is pending or has been granted, and the statutory requirements concerning the estate and successors are satisfied. (Virginia Law)
Virginia also has a separate provision allowing certain small assets valued at $35,000 or less to be paid or delivered to a successor without an affidavit, provided at least 60 days have passed and no application for appointment of a personal representative is pending or has been granted. (Virginia Law)
Want to learn more about wills and trusts in Virginia? Compare what is included in a will and a trust.
