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Alexandria, VA Estate Planning Blog

Friday, July 30, 2010

No Will? The Surviving Spouse Can Be Disinherited from 2/3 of Other Spouse's Probate Estate

Not many people know how the VA intestacy distribution rules (distribution of estate if no Last Will & Testament) operate and how disastrous they can be. It is important that everyone understand the issues. 

"If no will exists, then a surviving spouse generally only inherits 1/3 of the decedent spouse's probate estate if the decedent had a living child with another person".

If you or your spouse don't have a will, or your will is lost, stolen, destroyed, or successfully contested, then you may find that your probate estate will be distributed according to an intestacy statute. An intestacy statute is a statute that applies when someone dies without a will. In Virginia, if a person dies without a valid will, then the course of distribution may be as follows:
 
1) If children from a prior relationship, 1/3 to spouse and 2/3 to children
2) If no children from a prior relationship, 100% to the surviving spouse
3) If no surviving spouse, but surviving children, 100% to children
4) If no surviving spouse or surviving children, then 100% to the children’s descendants
5) If no surviving spouse, children, or children’s descendants, then 100% to the mother or father (or survivor)
6) If no surviving spouse, children, children’s descendants, or parents, then to the paternal and maternal kindred (very generally stated)
 
Please note that VA law only covers real property located in VA and it’s residents’ personal property (located in any state).

Caution!

Real property located in another state is governed by the law of the state where the property is located.

(In other words, you should have a will if you have property in another state)
 
Practice Tip: People in urgent need of a will because of intestacy laws include the following;
 1) Any person (or their spouse) who has children from a prior relationship
 2) Any person (or their spouse) who has deeded or real property in another state
 3) Any person (or their spouse) who doesn’t have a surviving spouse or children


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