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WHAT HAPPENS IF I DON'T HAVE A WILL?

I have had many people ask me - what happens if I don't have a Will? Well, the simple answer is that your assets will pass per the intestate law in Virginia, which is found in Virginia Code 64.2-200 and 64.2-201.

What that code section states is the following order of distribution of your assets:

  1. To the surviving spouse, unless the deceased is survived by children or their descendants, and one or more of those children or descendants are not children or descendants of the surviving spouse, in which case, two-thirds of the estate descends and passes to the deceased person's children or descendants and one-third of the estate passes to the surviving spouse.
  2. If there is no surviving spouse, then the estate passes to children and their descendants.
  3. If there is no surviving spouse and no children or descendants, then the estate passes to the deceased person's parents, or to the surviving parent.
  4. If there is no surviving spouse, children, descendants, or parents, then the estate passes to the deceased person's brothers and sisters, and their descendants.
  5. If there are none of those types of persons named above, then one-half of the estate descends and passes to the paternal kindred and one-half descends and passes to the maternal kindred of the deceased person in the following order:
    1. To the grandparents.
    2. If there are no grandparents, then to uncles and aunts and their descendants.
    3. If there are none of the above, then to great-grandparents.
    4. If there are none of the above, then to the brothers and sisters of the deceased person's grandparents and their descendants.
    5. If there are none of the above, then passes to the nearest lineal ancestors and descendants of such ancestors.
    6. If there are no heirs at all, then it is subject to escheat to the Commonwealth of Virginia.

When you do not create a Will, you have no say in where your assets go. This is extremely important in blended family situations where you and your spouse have children from different relationships. This is also extremely important if you and your significant other are not married - because your significant other is not entitled to anything.

When you do not create a Will, you have no say in how assets passing to minors are handled. You are leaving it up to the court system to create a Trust for them and decide who will handle that minor's inheritance. Even if those receiving your estate are not minors, there may be a reason to put that person's inheritance into a Trust for them because either they are not yet responsible enough to handle the monies, they have creditor issues, they are receiving government benefits for a special need, or many other various reasons.

When you do not create a Will, you have no say in who the person is that will handle your estate through the probate office.

When you do not create a Will, you have no say in who can become the guardian of your minor children.

There are many reasons to have estate planning documents, and every person should at least have a basic Will in order to make sure their estate is handled the way they desire. Other documents that every person should have include an Advanced Medical Directive and a Financial Power of Attorney. If probate is a concern for you, another option is to create a Revocable Living Trust. You can learn more about Revocable Living Trusts in this prior blog post

Contact us at our office to sit down to discuss your estate plan as a whole. Call our office at 703-658-6050 or email Rebecca Evans at [email protected]

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Law Office of Deborah N. Arthur
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Annandale, VA 22003

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