Inheritance laws can differ from state to state, so you should consult an estate attorney in your state of residence as you decide how to arrange and distribute your assets. Inheritance laws in Virginia are applied differently from situation to situation, depending on decisions you make before your death.

[Related: 6 Tips for Choosing an Estate Planning Attorney Near You]

Inheritance Laws Depend on Your Estate Plan

First, it is important to know that you can have complete control over how your assets are distributed and who inherits your estate if you create a proper estate plan. You can create an estate plan using several different types of legal documents, but the two most common are wills and trusts.

[Related: What Is Involved in Estate Planning?]

  • Will: With a will, your assets will be distributed to the beneficiaries named in your will. To ensure the right people receive an inheritance from your estate, the state enforces the instructions in your will through a legal process known as probate.
  • Trust: If you use a trust to plan your estate, your assets are distributed by the person you have named as your trustee. Although the court system is not involved in distributing your assets the way it is when you use a will, your trustee is legally bound to carry out the wishes in your trust.

Inheritance Laws If You Do Not Have an Estate Plan

If you do not have an estate plan when you pass, Virginia inheritance laws follow the state’s rules of intestacy. Intestacy is the legal term for dying without a will or some other kind of estate plan. If an estate is intestate, then the set of default rules about who will receive your assets if you die without a valid will determine who inherits.

Virginia Law has a set course of how it distributes your estate to next of kin:

“A. The real estate of any decedent not effectively disposed of by will descends and passes by intestate succession in the following course:

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.

  • If there is no surviving spouse, then the estate descends and passes to the decedent’s children and their descendants.
  • If there is none of the foregoing, then to the decedent’s parents, or to the surviving parent.
  • If there is none of the foregoing, then to the decedent’s siblings, and their descendants.
  • If there is none of the foregoing, then one-half of the estate descends and passes to the kindred of one of the decedent’s parents and one-half descends and passes to the kindred of the other of the decedent’s parents in the following course:
  • To the decedent’s grandparents, or to the surviving grandparent.
  • If there is none of the foregoing, then to the decedent’s uncles and aunts, and their descendants.
  • If there is none of the foregoing, then to the decedent’s great-grandparents.
  • If there is none of the foregoing, then to the siblings of the decedent’s grandparents, and their descendants.
  • And so on, in other cases, without end, passing to the nearest lineal ancestors, and the descendants of such ancestors.

B. If there are no surviving kindred of one of the decedent’s parents, the whole estate descends and passes to the surviving kindred of the other of the decedent’s parents. If there are no kindred of either parent, 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.

C. If there is no other heir of a decedent’s real estate, such real estate is subject to escheat to the Commonwealth.”

Inheritance Laws in Virginia May Not Be What You Want

If you do not want the default inheritance laws of Virginia to apply to your estate, you need a plan. By using wills, trusts, and other legal documents to create an estate plan ahead of time, you get to decide who inherits from you instead of the state government taking control of your assets when you pass. For the vast majority of people, this is the better option. We recommend you contact an estate attorney near you and begin the process today.

If you are resident in Virginia or West Virginia, contact us! We are happy to help you create the estate plan you need to be prepared for the future.

 

Disclaimer: The information you obtain in this post is not, nor is intended to be, legal advice. This blog shares general best practices when navigating Virginia or West Virginia law, but you should consult an attorney for advice regarding your individual situation.

 

Joshua E. Hummer, Esq. is the founder of Relational Estate and Elder Law, and he has been a practicing attorney for over 15 years. While experienced in many parts of the law, Josh specializes in estate planning, estate administration, and elder law. He is licensed in both Virginia and West Virginia. Josh’s passion lies in helping people gain peace of mind about the future through holistic legal planning. When he isn’t meeting with clients or crafting legal documents, Josh enjoys spending time with his lovely wife, Jill, and their four vibrant children.