Questions concerning Wills, Trusts, and Estates
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What Happens if I Don't have A Will?
In Virginia, statute controls who inherits if you don’t have a Will. If you have a spouse, and all of your children are with that spouse, then your spouse inherits 100% of your probate estate. If you have children from a prior marriage, your spouse receives only 1/3 of your probate estate, and your children receive the other 2/3.
Joint assets and assets that pass by beneficiary designation are not affected by your will unless the beneficiary or joint owner dies before you do. If any such asset does not have a valid beneficiary designation, that asset also becomes part of your probate estate.
If you don’t have a spouse or children, then your assets go to other family members: first, your parents, then your siblings, then your nieces and nephews, then split between your maternal and paternal families from grandparents down, etc. If there is truly no heir and no family member can be located, then the Commonwealth of Virginia inherits your assets. This is rare, but not unheard of. A will allows you to choose who you want to inherit in the unlikely event that your immediate family dies before or with you. You may wish to have your favorite charity inherit your assets instead of your mom’s cousin who you’ve never met.
If you have minor children, and both parents are deceased, the court will decide who should have custody of your children instead of you.