What Happens if a Person Dies Without a Will in Virginia?

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Understanding Intestate Succession in Virginia and Why Having a Will Matters

Imagine this: you pass away unexpectedly, leaving behind loved ones, property, and personal belongings – and you didn’t have a will. What happens next, and who gets what?

If you don’t have a will in place, you’re not alone. According to a 2020 Gallup poll, less than half of all adults in the United States say they have a will. Many people assume they don’t have sufficient assets to warrant one, or they plan to get around to it at a later date. Unfortunately, waiting too long often leaves grieving families struggling with confusion, conflict, and legal delays at an already difficult time.

In Virginia, when someone dies without a valid will, their estate is distributed according to intestate succession laws. These laws determine who inherits your assets, following a strict legal formula that may not reflect your wishes. Understanding how these rules work and how you can take control through proper estate planning can help you protect your loved ones and avoid unnecessary complications.

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What Does “Dying Intestate” Mean?

The term “intestate” simply means dying without a will. When this happens, Virginia’s laws take over and decide how your property, money, and possessions are divided. This process follows a predetermined order, starting with your closest relatives and moving outward if no immediate family exists.

While these laws were developed to ensure that someone inherits your property even without a will, they may not match your personal preferences, such as if you wish to leave assets to a partner, friend, or charitable organization.

In short, dying intestate means leaving the distribution of your estate up to state law rather than your own wishes. While Virginia’s intestacy process ensures that your property goes to someone connected to you, it offers no flexibility for personal relationships or unique circumstances. The only way to ensure your wishes are followed and your loved ones protected is to create a valid, up-to-date will.

How Assets Are Divided in Virginia Without a Will

When someone dies without a will, Virginia law doesn’t leave the question of “who gets what” up to chance. Instead, it follows a detailed legal roadmap, which determines exactly how a person’s assets are distributed to surviving family members. The goal is to ensure that the estate passes to the deceased’s closest living relatives, but in practice, it can lead to outcomes that differ greatly from what that person would have chosen themselves.

The rules of intestate succession depend on your family situation at the time of death – whether you’re married, have children, or have living parents or siblings. The following outlines how Virginia courts divide assets when there is no valid will in place:

• If you are married with no children, your surviving spouse inherits your entire estate.
• If you are separated, but not yet divorced, your spouse will get everything.
• If you are married with children, and these children are from your spouse, your spouse still inherits everything.
• If you are married and have children from a previous relationship, your spouse receives one-third of your estate, and your children share the remaining two-thirds.
• If you are unmarried and have children, your children inherit everything in equal shares.
• If you have no spouse or children, your living parents inherit your estate.
• If your parents are no longer alive, your siblings inherit.
• If no immediate family remains, the law continues down the family tree – nieces, nephews, grandparents, aunts, uncles, and cousins – until a relative is found. If no relatives can be found, your estate eventually passes to the Commonwealth of Virginia.

This order may surprise many people who assume that unmarried partners, stepchildren, or close friends can inherit a portion of an estate. They will not under Virginia law unless a valid will specifies otherwise.

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What Property is Not Affected by Intestacy Laws?

While Virginia’s intestacy laws govern who inherits much of your estate when you die without a will, not every asset follows these rules.

Some types of property transfer automatically based on how they’re titled or who is listed as a beneficiary. These assets bypass probate – the court process that oversees estate distribution – and are never affected by whether there is a will in place or not. Understanding which assets fall into this category is essential because they can ensure a smoother transition for loved ones when properly managed.

The most common of these include:

• Life insurance policies
• Retirement accounts, such as 401(k)s and IRAs
• Payable-on-death (POD) or transfer-on-death (TOD) accounts
• Property held jointly with right of survivorship
• Trust assets

This means that even with a will – or without one – these assets may already have designated recipients. Reviewing and updating these beneficiary designations is just as important as creating or revising a will as you want to ensure that your designations match your most current wishes.

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Why You Should Have a Will

Creating a will is one of the most important steps you can take to protect your loved ones and ensure your wishes are honored. While Virginia’s intestacy laws provide a legal framework for distributing your assets, relying on these default rules means that you are letting the state make profoundly personal decisions on your behalf.

A will gives you the ability to take control by deciding who should inherit your property, handle your affairs, and how you want your legacy preserved. Without one, the courts will follow the rigid intestacy succession formula that may not reflect your relationships, priorities, or values.

You Decide Who Inherits Your Property

Without a will, Virginia’s intestacy laws determine who receives your assets, and those laws might not align with your preferences. For instance, a long-term partner, stepchild, or close friend would not inherit anything unless they are explicitly named in a will. Drafting a will allows you to choose who receives your property, ensuring your assets go to the people and causes that matter most to you. It also gives you the freedom to leave unequal shares or specific gifts, rather than letting state law divide everything by default.

You Choose Who Manages Your Estate

Every estate requires someone to gather assets, pay bills, and ensure the terms of the will are followed. Without a will, the court appoints an administrator, which might not be the person you would have chosen. By creating a will, you appoint a trusted executor who understands your wishes and can manage your estate responsibly. Selecting this person in advance can prevent confusion, delays, and potential disputes among family members later on.

You Can Name a Guardian for Your Minor Children

For parents, a will is the only way to formally name a guardian for minor children. Without that designation, a judge decides who will care for your children, which can lead to family disagreements or outcomes that don’t reflect your preferences. Naming a guardian in your will gives you the reassurance that your children will be raised by someone who shares your parenting values and will provide a stable, loving home.

You Reduce Family Conflict

One of the greatest gifts you can leave behind is transparency. When loved ones are already coping with loss, uncertainty about how to divide assets and belongings can lead to arguments and lasting divisions within the family. A clear, legally valid will minimizes the chance of family disputes because it provides written proof of your intentions. Even if your estate is modest, formalizing your wishes helps prevent misunderstandings and gives your family peace of mind during an emotional time.

You Provide Security and Peace of Mind

Creating a will isn’t just about legal formalities – it’s about providing security, stability, and peace of mind for the people you love. Having your affairs in order helps your family avoid unnecessary court proceedings, extra costs, and months of uncertainty. It also offers peace of mind in the present, knowing that your loved ones will be cared for, and your values will continue to guide decisions after you’re gone.

How to Prepare a Will in Virginia

Creating a will may sound intimidating, but with a little preparation and the right legal guidance, you can take proactive steps to protect your family’s future and feel secure knowing your plans are in place.

• Meet the basic legal requirements – To make a valid will in Virginia, you must be at least 18 years old and of sound mind. The will must be in writing, signed willingly by you, and witnessed by two competent adults who are present at the time of signing.
• Clearly state your wishes – Your will should reflect exactly how you want your estate to be handled. This means identifying beneficiaries and describing what each should inherit. You can leave specific gifts such as family heirlooms, make charitable donations, or distribute your estate in percentages. The more precise you are, the less room there is for confusion or disagreement after your passing.
• Appoint an executor you trust – Your executor is responsible for carrying out the terms of your will. Choosing the right person for this role is crucial. Select someone you trust to be organized, responsible, and fair, and make sure they’re willing to serve before naming them. This can be a family member, friend, or professional executor, such as an attorney or financial advisor.
• Name a guardian for your minor children – If you have children under 18, you will want to name a guardian who will care for them if you and the other parent are no longer able to do so. This is one of the most important decisions you will make. You will want to choose someone who shares your values and also has the stability, time, and willingness to take on the role.
• Store it safely and share its location – After your will is signed, store it in a safe, accessible place and share its location. Let your executor and at least one trusted family member know where the original document is kept.

Life changes, and many life transitions – births, deaths, marriage, divorce – can affect your estate. Reviewing it every three to five years, or after any major life event, ensures it stays current and aligned with your goals. Many people also take this opportunity to update related estate planning documents, such as powers of attorney or medical directives, so their overall plan remains consistent.

Frequently Asked Questions

1. What happens to my property if I die without a will in Virginia?

If you die without a will, your estate is distributed according to Virginia’s intestate succession laws. That means the state decides who inherits your property, typically starting with your spouse, children, and closest family members. Having a valid will ensures your assets go exactly where you intend.

2. Can an unmarried partner or stepchild inherit from me if I don’t have a will?

No. Under Virginia’s intestacy laws, only legal spouses and blood relatives are entitled to inherit. To include unmarried partners, stepchildren, close friends, or charities, you must name them as beneficiaries in a valid will or other estate planning documents.

3. What happens if someone contests my will?

If someone believes your will is invalid, they may contest it in court. This can delay the probate process and lead to costly legal disputes. Working with an experienced estate planning attorney helps ensure your will is properly executed, witnessed, and worded, making it far less likely to be successfully challenged.

Take the Next Step Toward Protecting Your Legacy

Estate planning isn’t just legal paperwork; it’s protecting the loved ones and people who matter most to you. Whether you’re creating a first will, updating an existing one, or simply exploring your options, taking the time to prepare now can spare your loved ones stress and uncertainty later.

At Melone Hatley, P.C., our experienced estate planning attorneys help Virginia families design plans that reflect their goals, relationships, and long-term priorities. We will walk you through each step, ensuring your wishes are clear and legally sound. Call us at 800-479-9124 or contact us through our website to schedule a free consultation with one of our Client Services Coordinators.

Written By Charles HatleyCharles D. Hatley, Esq. is the Chief Executive Officer of Melone Hatley P.C., where he combines visionary leadership with entrepreneurial drive to shape the firm’s growth, strategy, and culture. Recognized for building high-performing teams and fostering innovation, Charles is committed to creating a workplace where collaboration, professional development, and accountability drive both employee success and client satisfaction.View Profile

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