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The business of dying can be a complicated affair. Having to deal with funeral or celebration of life preparations while going through the grieving process can be overwhelming. Depending on whether or not the decedent had a will or any valuable assets to leave behind, matters can become more complicated after the loss of a loved one. In the United States, it is estimated that between 0.5% and 3% of wills are contested annually. While these percentages may sound small, given the fact that there are millions of wills probated each year, the number of contested wills is not insignificant. If you are the beneficiary of a will in the state of Virginia, or if you are preparing your own will, it’s important to know the ins and outs of Virginia inheritance laws, what to expect when it comes to taxes and other legal matters having to do with inheritances, estates, spousal or children’s rights, etc.  

Does Virginia Have an Inheritance or Estate Tax?

An inheritance tax is a state tax owed by the individual recipient(s) of property inherited from the estate of a deceased person. Property, in this case, refers to anything that someone can own. On the other hand, an estate tax is a tax levied against the entire estate owned by an individual at the time of their death. In the case of an estate tax, money owed would be paid by the estate itself before any other assets would be distributed to the heirs of the decedent. In the state of Virginia, there is neither an inheritance tax nor an estate tax. If, however, a resident of Virginia was heir to property inherited by a decedent in another state, they may be subject to that state’s inheritance and estate tax laws. Additionally, while Virginia has no estate tax, beneficiaries in the state of Virginia may have to pay federal estate taxes. 

Dying With a Will in Virginia

Dying with a will, also referred to as dying testate, means that you have left valid and legal instructions as to what to do with your property after you are gone and who will be the beneficiaries of your estate. If a will has been left behind at the time of someone’s passing in Virginia, it will need to go through probate to prove and record its authenticity. (Any estate valued at more than $50,000 at the time of death is required to go through this process.) There are no dedicated probate courts in Virginia, so wills needing to go through probate would do so in the circuit court in whichever city or county the decedent lived in at the time of passing. Typically, the probating of wills is handled by the clerk of the court, as opposed to a circuit court judge. 

There is no required time frame for probating a will. However, it is generally recommended to start the process within 30 days of the decedent’s death. When the time comes to probate the will, you should bring a copy of the death certificate with you to the court, and you should come armed with knowledge about the decedent’s assets and the value of those assets. If you have been appointed in the will as the executor of the estate, and assuming the court has deemed you competent enough to fulfill this duty, you will be asked to take an oath that you will faithfully perform any required duties. As executor, you will also be expected to provide a bond in an amount that is at least equal to the value of the estate being disbursed, and you may further be expected to give surety on that bond. 

What Happens if You Die Without a Will in Virginia?

Dying without a will, or dying intestate, means that you did not leave behind legally binding instructions regarding who may inherit your property after you are gone. In such cases, whatever state laws are in effect in Virginia at the time of your death will determine who your beneficiaries are. In general, it can be expected that any of your assets that have been through probate will pass on to your closest surviving relatives. Assets that have not been through probate will not be affected by intestate succession laws. 

Intestate Succession in Virginia

With no will in place, Virginia inheritance laws dictate that after all funerary costs have been accounted for and any other outstanding debts have been paid, the order of succession for heirs would go like this:

  • Everything goes to the surviving spouse unless there are surviving children (or their descendants) pertaining to someone other than the surviving spouse. In that case, one-third would go to the surviving spouse, and the other two-thirds would be evenly distributed between the surviving children. 

  • Without a surviving spouse, everything would go to any surviving children and their descendants. 

  • If there are no surviving spouses or children/descendants of children, then everything would pass on to both parents of the decedent or whichever parent is still alive. 

  • If there are no surviving parents, then everything would pass on to any surviving siblings and their descendants

  • If none of the above situations apply, there are further guidelines in place for who will inherit

Intestate succession laws only apply to assets that have been through probate (assets that were owned exclusively by the decedent at the time of their death).

Community Property in Virginia Inheritance Law

Community property” refers to any assets (or debts) acquired by either spouse during marriage.  In community property states, any asset acquired by either spouse during a marriage is deemed to belong to both spouses equally, regardless of who acquired said asset. Virginia is not a community property state. Even so, most assets acquired during a marriage in Virginia are considered to be marital property, with the exception of anything one spouse acquired by means of inheritance or bequest. Any such assets would be regarded as that spouse’s separate property. When a married person in Virginia passes away, half of their community property automatically belongs to the surviving spouse. That half would not be subject to the testamentary disposition of the deceased nor Virginia intestate succession laws. In other words, the decedent cannot bequeath their surviving spouse’s half of the community property to another, nor can the surviving spouse’s half of marital property be distributed among other heirs falling under the jurisdiction of intestate succession inheritance laws. In turn, the other half of the marital property, the half belonging to the deceased, would not be subject to the surviving spouse’s claims to an elective share. 

Separate Property in Virginia Inheritance Law

Separate property refers to anything that was purchased or acquired by one spouse prior to the marriage. It also refers to any property inherited by just one spouse during the marriage. Under Virginia inheritance laws, as previously mentioned, surviving spouses where there are no existing children of the deceased are entitled to inherit the decedent’s entire estate. This would include separate property. If the decedent left behind surviving children, the surviving spouse would only be entitled to one-third of the deceased’s total assets.

Spousal Rights According to Virginia Inheritance Law

If a surviving spouse is not mentioned in their partner's will, if their partner passed away without a will, or if they are unhappy with the amount they received, they can request a portion of their deceased partner's increased estate. The augmented estate includes both probate and non-probate assets. Under the right of election, the surviving spouse is entitled to receive an elective share amount equal to 50% of the value of the marital-property portion of the augmented estate. If the surviving spouse chooses to exercise their right to an elective share, their homestead allowance, exempt property, and family allowance, if these things exist, are not charged against. Rather they are in addition to the elective share amount. The deadline to file for elective share is six months from the date of probate of the will or date of qualification of an administrator in the case of an intestate situation. 

In Virginia, if the decedent created their will before marriage and never updated it, their surviving spouse is considered pretermitted. This means they will have the right to inherit as if there were no will. 

Children’s Rights to Inheritance According to Virginia Law

If there is no surviving spouse, the children of the decedent are entitled to inherit their entire estate. If there is a surviving spouse, who also happens to be the parent of the surviving children, the spouse would receive everything, and the children would receive nothing. If there is a surviving spouse, but the surviving children do not pertain to that surviving spouse, then the spouse would receive one-third of the entire estate, and the children would receive the remaining two-thirds. Adoptive children and biological children are treated the same under Virginia inheritance laws. If a child of the deceased has not yet been born at the time of death, they will still have the same inheritance rights as their siblings after they are born. 

Illegitimate Children

Under Virginia law, an illegitimate child is defined as a child born outside of marriage. Such a child will only receive an inheritance in Virginia if one of the following situations applies to them:

  • If a genetic test has proven paternity, the deceased parent recognized the child as their own, and they did not deny child support payments 

  • If the deceased and the other parent were at some point married, but their marriage was in some way determined to be either illegal or was voided or dissolved by the court

Outside these two circumstances, an illegitimate child is not guaranteed inheritance rights, though they could be added to the will before their parent dies. 

Single and Childless in Virginia Inheritance Law

When a person in Virginia passes away, and they were unmarried and had no children, the guidelines laid out by Virginia’s intestate succession laws would be used to determine which family members are next in line to receive the inheritance. The order of succession in a case where there are no surviving spouses or children looks like this:

  • Entire estate to surviving parent(s) 

  • Estate evenly divided between surviving siblings

  • Estate evenly divided between surviving nieces or nephews

  • Estate evenly divided between any surviving grandparents

  • Estate evenly divided between any surviving aunts or uncles

  • Estate evenly divided between any surviving great-grandparents

  • Estate evenly divided between any surviving great-aunts/uncles

  • Entire estate to former spouse’s family if the spouse dies while married to the decedent

Non-Probate Virginia Inheritances

Non-probate assets are any assets that a decedent owned jointly with another individual. Such assets are typically known as ‘joint assets with rights of survivorship.’ This means that if one of the owners dies, the other owner automatically retains the ownership rights to the asset.

Here are some examples of certain assets that might not have been through probate. These non-probate assets would not be subject to intestate succession laws or elective share laws:

  • Retirement funds that have an assigned beneficiary (IRA, 401k, etc.)

  • Life insurance funds that have a named beneficiary

  • Any property that has been transferred to a living trust

  • Anything that has been set up as a “transfer-upon-death” situation, such as bank accounts, real estate, vehicles, or securities

  • Any property owned in joint tenancy with another individual

Unique Situations in Virginia Inheritance Law

If a decedent had a child that predeceased them, it is possible (though not guaranteed) that the decedent’s grandchildren from the child who predeceased them will receive whatever portion of an inheritance their parent would have received when evenly distributing the estate between the decedent’s children. 

If someone dies in Virginia and they have no heirs or surviving relatives, their estate and assets will become the property of the state of Virginia under a legal process called “escheat,” which basically dictates that the property of a decedent will always have a recognized owner. (In this case, the owner becomes the state.)

How Long Do You Have to Contest a Will in Virginia

There are many reasons a person may decide to contest a will, such as:

  • The person who made the will has been found to be mentally ill or incapacitated

  • The will is incomplete or faulty

  • There is evidence of fraud

  • If the will was unlawfully altered

  • The will did not comply with statutory requirements

  • A breach of fiduciary duty

  • Forgery

  • Duress

In Virginia, interested parties (persons who stand to gain something if the will is declared invalid) typically have one year from the date of probate to contest a will. In some circumstances, the statute of limitations for contesting a will in Virginia could be shortened. For minors or incapacitated individuals, the statute of limitations for contesting a will could also be extended. 

If you or someone you know has questions about Virginia inheritance laws, or if you need assistance making a will, or understanding your rights as an heir, be sure to contact a qualified attorney. They can help answer your questions and ensure you aren’t taken advantage of or mistreated. 

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