If you die without legally designating in a “last will and testament” how your assets will be distributed and who is your executor, the court will appoint an executor and provide for the distribution of your assets through a slow (and potentially expensive to your heirs) process called probate of an intestate estate. Passing away without a will adds to your loved ones’ burdens at the worst possible time for them: when they’re mourning your loss.
What is a Will?
A last will and testament is a legal document that specifies a guardian for your children, if any, the distribution of your assets after death, and who you selected to handle these matters. A will details what you want to be done with your assets, including but not limited to:
- Real property, such as real estate, land, and buildings.
- Cash, such as money in checking, savings, and money market accounts.
- Intangible personal property, such as stocks and bonds.
- Other forms of business ownership, including intellectual property, royalties, patents, copyrights, etc.
- Valuable objects such as cars, artwork, jewelry, and furniture.
What Happens If You Pass Away Without a Will?
If someone dies with a will, they die “testate” and their assets are distributed according to their will. If someone dies without a will, they die “intestate” and their assets are distributed through intestate succession by a person selected by the court.
What do Virginia’s Laws of Intestate Succession Look Like?
Intestate succession takes place when personal property that has not been designated through a legal will is divided amongst living heirs. In Virginia, where your assets end up is determined by the types of close relatives you have. Here are a few of Virginia’s most common scenarios:
- If you die with children but no spouse, your children inherit everything.
- If you die with a spouse but no children, your spouse inherits everything.
- If you die with a spouse and children, your spouse inherits everything if the children are yours and your spouse’s; if not, the spouse inherits one-third and the children inherit two-thirds.
- If you die with siblings but no spouse or parents, your siblings inherit everything.
What are the Disadvantages of Dying Without a Will?
Dying without a will can result in a heated debate among family members, because the court will distribute assets based on certain criteria, not taking into account the relationship those surviving family members had with the deceased. There may also be disagreement as to who will handle these matters.
Can I Create a Will Online?
Do-it-yourself estate planning documents offered by low-cost online services may actually slow down the process. They may not distribute assets in the manner you intended, or they may not be valid at all in Virginia. When it comes to any kind of legal paperwork, it’s important to always consult a licensed estate planning attorney to ensure your wishes with respect to your life’s work are met.
Always Update Your Will to Reflect Life Changes
A will is not a one-and-done document. You need to update it to reflect significant life changes like divorce, remarriage, the birth of grandchildren, and other life milestones. By doing so, you ensure that your assets are distributed the way you want.
Consult a Virginia Estate Planning Attorney
If you are ready to start the process of creating your will, or you have a current will that you need to amend, contact Jason Smolen at jdsmolen@smolenplevy.com and Daniel Ruttenberg at dhruttenberg@smolenplevy.com.
About the Authors
Jason Smolen
Jason Smolen is a founding principal of SmolenPlevy. Smolen’s knowledge of complex estate and business issues has drawn the attention of ABC News, USA Today, E! Online, Realty Times and the Bank of America Small Business Online Community. Mr. Smolen is a graduate of the City College of the City University of New York and the George Mason University School of Law. Smolen also serves as a board member of a local citizens association and recently co-authored an article titled Why You Should Think About Spousal Limited Access Trusts (SLATS).
Daniel H. Ruttenberg
Daniel H. Ruttenberg, JD, CPA, LLM is a principal with the firm. Mr. Ruttenberg received his Bachelor of Science degree with a double major in Accounting and Finance from the University of Maryland. He earned his Juris Doctor with Honors from George Mason University School of Law and his Master of Laws in Taxation with Distinction from Georgetown University Law Center. Mr. Ruttenberg also served as the Director of the Fairfax Bar Association (FBA) for seven years. During this period, he was also elected president – the youngest in FBA history and served as a member of the Board of Directors for the Fairfax Law Foundation.
