Virginia

Intestacy

General Definition

A decedent's intestate estate is defined as any part of the estate not effectively disposed of by a valid will.

Order of Distribution

When any person having title to any real estate of inheritance dies intestate their estate will descend in the following manner:

1. 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.
2. If there is no surviving spouse, then the estate descends and passes to the decedent's children and their descendants.
3. If there is none of the foregoing, then to the decedent's parents, or to the surviving parent.
4. If there is none of the foregoing, then to the decedent's brothers and sisters, and their descendants.
5. If there is none of the foregoing, 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 decedent in the following course:
   1. To the decedent's grandparents, or to the surviving grandparent.
   2. If there is none of the foregoing, then to the decedent's uncles and aunts, and their descendants.
   3. If there is none of the foregoing, then to the decedent's great-grandparents.
   4. If there is none of the foregoing, then to the brothers and sisters of the decedent's grandparents, and their descendants.
   5. And so on, in other cases, without end, passing to the nearest lineal ancestors, and the descendants of such ancestors.
6. If there are no surviving kindred of one of the decedent's parents, the whole estate descends and passes to 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.
7. If no other takers, then to the state. Sec 64.2-200.

Until the surviving spouse's rights in the principal family residence have been determined and satisfied by an agreement between the parties or a final court decree, in cases (i) where the principal family residence passes by intestate succession and the deceased spouse is survived by children or their descendants, one or more of whom are not children or their descendants of the surviving spouse, or (ii) where the surviving spouse claims an elective share in the deceased spouse's augmented estate, the surviving spouse may hold, occupy and enjoy the principal family residence and curtilage without charge for rent, repairs, taxes, or insurance. Sec. 64.2-307.

Will Qualifications

Common Law or Community Property

Virginia is a common law, elective share state.

Capacity

The testator of a valid will must be at least 18 years of age and of sound mind. Sec. 64.2-401.

Drafting

Every will must be in writing and signed by the testator, or by some other person in his presence and by his direction, in such manner as to make it manifest that the name is intended as a signature. Unless the will is a holographic will, written completely in the handwriting of the testator, the signature must be made or the will acknowledged by him in the presence of at least two competent witnesses, present at the same time. The witnesses must sign the will in the presence of the testator, but no form of attestation is necessary. If the will is holographic, in the handwriting of the testator, that fact must be proved by at least two disinterested witnesses. Sec. 64.2-403.

A will, at the time of its execution or at any subsequent date, may be made self-proved by the acknowledgment by the testator and the affidavits of the attesting witnesses, each made before an officer authorized to administer oaths and evidenced by the officer's certificate, attached or annexed to the will. Sec. 64.2-452

A surviving spouse sacrifices any homestead allowance upon exercising the right to elective share. Sec. 64.2-311

Beneficiaries

A beneficiary is any person who has any present and/or future interest, vested or contingent.

If property distribution depends upon an individual surviving another, an individual who is not established by clear and convincing evidence to have survived the other individual by 120 hours is deemed to have predeceased the other. However, this does not apply if it would result in a taking of an intestate estate by the state. Sec. 64.2-2201.

Modifications

If a testator with the intent to revoke, or some person at his direction and in his presence, cuts, tears, burns, obliterates, cancels or destroys a will or codicil, or the signature or some provision, the will, codicil or provision is thereby void and of no effect. If a testator executes a will or other writing in the manner in which a will is required to be executed, and the will or other writing expressly revokes a previous will, such previous will, including any codicil, is thereby void and of no effect. Sec. 64.2-410.

If a testator duly executes a will or codicil which does not expressly revoke a former will or codicil, but which expressly revokes a part or contains provisions inconsistent with the will, the former will or codicil is revoked and superseded to the extent of the express revocation or inconsistency if the later will or codicil becomes effective upon the death of the testator. Sec. 64.2-410.

If, after making a will, the testator is divorced or his marriage is annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse. Any provision conferring a general or special power of appointment on the former spouse and any nomination of the former spouse as executor, trustee, conservator or guardian is revoked unless the will expressly provides otherwise. Property will pass as if the former spouse failed to survive the testator. These provisions will be revived upon the testator's remarriage to the former spouse. Sec. 64.2-412.

Probate Process

Naming of Executor

The decedent has the right to name the executor of his or her estate through a validly constructed will. If there is no executor appointed by will or if all of the executors named refuse the executorship or fail to give bond when required, the court or clerk may grant administration to a person who is a beneficiary under the will, or his designee. If any of these persons fail to apply for administration within 30 days of decedent's death, the court will grant administration rights to a person who would have been entitled to administration if there had been no will, provided that this person takes an oath and the court or clerk is satisfied that he is suitable and competent to perform the duties of the office. Sec. 64.2-500.

Admission to Probate

After the will of the decedent is admitted to record, there may be a grant of probate or administration, after reasonable notice is made to creditors or other interested parties. Sec. 64.2-502.

When the will is presented for probate, the personal representative will furnish the court or clerk where he qualifies and the clerk of the circuit court of the city or county where real estate that is an asset of the decedent's estate is located, a list of heirs of the estate. Sec. 64.2-509.

Notifications

A personal representative of a decedent's estate or a proponent of a decedent's will must provide written notice of qualification or probate, and notice of entitlement to copies of wills, inventories, accounts, and reports, to the following persons:

1. The surviving spouse of the decedent, if any;
2. All heirs at law of the decedent, whether or not there is a will;
3. All living and ascertained beneficiaries under the will of the decedent and beneficiaries of any trust created by the will; and
4. All living and ascertained beneficiaries under any will of the decedent previously probated in the same court. Sec. 64.2-508.

Elective Share, Family Allowance, Exempt Property and the Homestead

When a married person dies, the surviving spouse is entitled to an elective share of the estate. The right to an elective share is in addition to a right to family allowance and exempt property. Sec. 64.2-309, Sec. 64.2-310.

Upon death, the surviving spouse and minor children are entitled to a reasonable allowance out of the estate for their maintenance during the period of administration. The allowance may not continue for longer than one year if the estate is inadequate to discharge all allowed claims. The family allowance may be paid as a lump sum not to exceed $24,000, or in one or more installments or in periodic installments not to exceed $2,000 per month for one year. It is payable to the surviving spouse, if living, for the use of the surviving spouse and minor children, otherwise, to the person having the care and custody of the minor children; but in case any minor child is not living with the surviving spouse, the family allowance may be made partially to the spouse and partially to the person having the child's care and custody as their needs may appear. If there are no minor children the allowance is payable to the surviving spouse. The family allowance has priority over all claims against the estate.

The family allowance is in addition to any benefit or share passing to the surviving spouse or minor children by the will of the decedent, by intestate succession, or by way of elective share. The death of any person entitled to family allowance terminates the person's right to any allowance not yet paid. Sec. 64.2-309.

In addition to the family allowance, the surviving is entitled to value not exceeding $20,000 in household furniture, automobiles, furnishings, appliances and personal effects. If there is no surviving spouse, the minor children of the decedent are entitled in equal shares to the same value. If encumbered assets are selected and if the value in excess of security interests, plus that of other exempt property, is less than $20,000, or if there is not $20,000 worth of exempt property in the estate, the spouse or minor children are entitled to other assets of the estate, if any, to the extent necessary to make up the $20,000 value. Rights to exempt property and assets needed to make up a deficiency of exempt property have priority over all claims against the estate, but not over the family allowance.

The right to exempt property is in addition to any benefit or share passing to the surviving spouse or minor children by the will of the decedent, by intestate succession, or by way of elective share. Sec. 64.2-310.

The surviving spouse is entitled to a homestead allowance of $20,000. If there is no surviving spouse, each minor child of the decedent is entitled to a homestead allowance amounting to $20,000, divided by the number of minor children of the decedent. The homestead allowance has priority over all claims against the estate, but not over the right to family allowance and exempt property.

The homestead allowance is in lieu of any share passing to the surviving spouse or minor children by the will of the decedent or by intestate succession; provided, however, if the amount passing to the surviving spouse and minor children by the will of the decedent or by intestate succession is less than $20,000, then the surviving spouse or minor children shall be entitled to a homestead allowance in an amount which, when added to the property passing to the surviving spouse and minor children by the will of the decedent or by intestate succession, will equal the sum of $20,000.

If the surviving spouse claims and receives an elective share of the decedent's estate, the surviving spouse shall not have the benefit of any homestead allowance. Sec. 64.2-311.

Debts and Distributions

When the assets of the decedent in the hands of his personal representative are not sufficient for the satisfaction of all demands against him, debts will be paid in the following order:

1. Costs and expenses of administration;
2. Family allowances;
3. Funeral expenses not to exceed $4,000;
4. Debts and taxes with preference under federal law;
5. Medical and hospital expenses of the last illness of the decedent, including compensation of persons attending him not to exceed $2,150 for each hospital and nursing home and $425 for each person furnishing services or goods;
6. Debts and taxes due this Commonwealth;
7. Debts due as trustee for persons under disabilities, as receiver or commissioner under decree of court of this Commonwealth, as personal representative, guardian, conservator or committee, when the qualification was in this Commonwealth and for moneys collected by anyone to the credit of another and not paid over, regardless of whether or not a bond has been executed for the faithful performance of the duties of the party so collecting such funds;
8. Debts for child support arrearages
9. Debts and taxes due localities and municipal corporations of the Commonwealth;
10. All other claims. Sec. 64.2-528.

Estate/Inheritance Tax

There is no current estate tax in Virginia.

Income Tax Charitable Deductions and/or Credits

Virginia allows a taxpaying resident to deduct itemized charitable gifts in the same manner as the IRS. Va. Code Ann. §58.1-322.