If you're concerned about how your property or assets will be distributed upon your death, you should consider drafting a last will and testament. Each state has different laws concerning who may draft a will and how. In Virginia, wills and inheritance rules are covered under Title 64 of the state legislative code. If you're a Virginia resident who has not drafted a will, you need to understand what can happen if you die without one, or "intestate."
Probate is the legal process by which an individual's estate is administered after his death. In the state of Virginia, any interested party may initiate the probate process. If you wish to become the administrator of the decedent's estate, you must petition the Circuit Court in the county in which he lived. If no one petitions the court to act as administrator, the probate court will appoint one. The administrator is responsible for inventorying the decedent's assets and determining their value, paying any debts and/or taxes owed by the estate and finally, distributing the estate assets according to Virginia's laws of intestate succession.
Virginia law requires a decedent's property to be distributed according to statutory guidelines if there is no will in place at the time of death. According to Title 64, Chapter 1 of the state legislative code, the surviving spouse assumes first priority for inheriting the decedent's property. If there is no surviving spouse, the whole of the estate is passed on to the decedent's surviving children and their descendants. If the decedent has no spouse or children, his mother and/or father inherit the estate. If both the decedent's parents are deceased, the estate passes to his brothers and/or sisters equally.
An exception to the intestate succession rules may be allowed under certain circumstances. Under Virginia law, a spouse who willfully deserts her husband and maintains this condition at the time of his death is considered to have abandoned her interest in the estate as well. Likewise, a parent who willfully abandons a minor and/or incapacitated child relinquishes all rights to a share in the child's estate at the time of the child's death. The deserter must resume the parental or marital relationship prior to the child or spouse's death in order to reclaim the right of inheritance.
The probate process may not be necessary in cases where the decedent has only a small estate or all of the estate assets are owned jointly with right of survivorship with a spouse or other individual. Consider speaking with a qualified Virginia estate planning attorney to determine whether you need a will. Heirs who are related to the decedent through a half-blood connection are only entitled to half the inheritance share that a full-blood relative would receive. If the probate court cannot locate any heirs of the decedent, the entirety of the estate becomes the property of the Commonwealth of Virginia.
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