When you lose a loved one, the last thing you want to think about is how their property and assets will be distributed. This is an especially difficult task to tackle when the deceased individual died without a valid Will, otherwise known as “dying intestate.”
If you are the spouse, adult child, or close family member of someone who recently died, you may be chosen by a probate court as the appointed the Personal Administrator of your loved one’s estate. Here is an overview of the probate process when a person has died without a Will, and what you as the Personal Administrator will be responsible for handling.
How does the probate process work if someone died without a Will?
Whether a person has a valid Will or not when they die, their estate may be subject to probate. This is the process by which the court reviews a person’s estate plans (if any) and coordinates with an appointed Personal Administrator to distribute the decedent’s assets and settle their affairs.
In the absence of a Will, the family of the decedent may disagree over their loved one’s true wishes and argue about who inherits which assets. That’s why there are succession laws to determine the appropriate heirs and beneficiaries when a person dies intestate:
- If the person was married, the surviving spouse will inherit the decedent’s entire estate, even if they had children together. If however, the decedent had natural or adopted children from a previous marriage, the surviving spouse will only receive one-third of the estate, with the remaining two-thirds divided among their children.
- If the person does not have a surviving spouse but has children, the children will inherit the entire estate. This applies to both natural and adopted children. However, inheritance rights do not extend to stepchildren or foster children unless the decedent had legally adopted them before their death.
- If the person was unmarried with no children, succession laws dictate that their estate is distributed in the following order to the following relatives: first, to parents in equal shares if living; second, if no living parents, then to siblings in equal shares if living; third, the descendants of siblings in equal shares, if living. If none of these relatives is living, then Virginia’s intestacy statute creates another hierarchy of distribution prioritizing among grandparents, then aunts and uncles, then descendants of aunts and uncles, then great-grandparents, and so on. See Va. Code 64.2-200.
As the court-appointed Personal Administrator, you will be responsible for overseeing the distribution of your loved one’s assets according to Virginia’s intestate succession laws.
Which assets are not subject to intestate succession?
In the Commonwealth of Virginia, there are certain assets that are subject to the “right of survivorship” or “payable on death,” meaning they bypass the probate process and are transferred to the appropriate survivor or named beneficiary (including non-blood relations if so named), regardless of where that person falls in the hierarchy of intestate succession laws.
This often includes jointly owned real estate, retirement accounts with named beneficiaries, life insurance with named beneficiaries, and jointly owned bank accounts, or property held by a Trust (though it is highly unlikely an individual who has a Trust would not also have a Will because all Trust Plans typically include a special type of Will called a “pour-over will” used to add assets to the Trust that pass through probate).
Need help with a probate case? Contact My Legal Case Coach for help.
If you find yourself responsible for administering a loved one’s estate and aren’t sure how to proceed, My Legal Case Coach may be able to help. We offer a specialized case form packet for probate matters, including one (1) free hour of virtual legal coaching with your purchase. We also offer ongoing legal coaching available in prepaid blocks of time.
Contact us today to schedule a free 15-minute consultation and learn how we can help you navigate this difficult time for you and your family.