If you die without a will what happens?
The term intestate refers to the situation of dying without a will. When someone dies intestate, their estate (which includes their assets, possessions, and debts) is distributed according to the intestacy laws of the state or jurisdiction where they lived at the time of their death; otherwise known as intestate succession.
Dying without a will has a specific set of laws that provide a default set of rules for distributing the deceased person’s estate among their heirs, typically starting with a surviving spouse and children, and then moving on to other relatives in a specific order of priority (intestate succession). In the absence of a will, intestacy laws aim to ensure that the deceased person’s assets are distributed fairly among their surviving family members.
Is Dying Without a Will Bad?
Dying without a will is not inherently “bad,” but it can lead to a number of potential issues and complications. Here are some reasons why dying without a will can be problematic:
1. Lack of Control: When you die without a will, you lose the ability to dictate how your assets and property will be distributed after your death. This means that your assets will be distributed according to the intestacy laws of the state, which may not align with your wishes.
2. Potential Conflict: Intestate succession can sometimes lead to disputes and conflicts among family members over the distribution of assets. Without clear instructions in a will, disagreements can arise over who should inherit what, potentially straining relationships among loved ones.
3. Delays and Costs: The probate process for intestate estates can be more complex and time-consuming than for estates with a valid will. This can lead to delays in the distribution of assets and may result in increased legal fees and administrative costs.
4. Unintended Beneficiaries: Intestacy laws follow a predetermined hierarchy of beneficiaries, which may result in assets being distributed to individuals whom you may not have intended to inherit from your estate. This can lead to assets going to distant relatives or individuals with whom you may not have had a close relationship.
5. Risk of Assets Escheating: In some cases, if no eligible heirs are found, the assets of an individual who dies without a will may escheat to the state, meaning that the government takes possession of the assets. Ouch!
Given these potential challenges, it is generally advisable to create a will to ensure that your wishes are carried out and to simplify the process of estate administration for your loved ones after your passing. Planning ahead by creating a will can provide peace of mind and help prevent complications that may arise from dying without a will.
Now that we understand what intestate is (dying without a will) and some of the drawbacks, let’s look at the following 5 steps that should be taken to secure the effective transfer of real property:
5 Steps of Intestate Succession
1. Determine the authorized signatory for the deed and other closing documents.
When a decedent passes away without a will, the ownership of their real estate automatically transfers to their heirs. Typically, these heirs are authorized to sign the deed and other necessary documents for the property’s transfer. In some cases, the Circuit Court may grant powers to an Administrator of the estate, allowing them to sell the property and sign relevant paperwork. It’s essential to note that being appointed as an Administrator does not always include these powers. It is crucial to obtain a copy of the court order to verify the Administrator’s authorization before proceeding with any signings. Alternatively, all heirs may need to sign if the Administrator lacks the necessary powers.
2. Identify the beneficiaries using one of the documents listed below, which must be properly recorded in the Will Book of the circuit court in the county where the property is situated:
- A List of Heirs filed by a qualified Administrator
- If no administrator has been qualified within 30 days of the death of the decedent, a List of Heirs filed by an heir of the decedent
- A Real Estate Affidavit filed by a qualified Administrator or any person having an interest in the real estate
3. Understand the Limitations of a List of Heirs and Real Estate Affidavit:
It’s important to be cautious when signing documents that may only benefit a specific individual, especially if they could exclude other potential heirs. Errors are common in these situations, as the person completing the form may not fully grasp Virginia’s laws on kinship priority for intestate succession. For instance, someone might mistakenly believe that all surviving descendants of a deceased individual, such as a daughter and her son, are considered heirs at law. However, under the Virginia Code, only the daughter would be recognized as an heir, not her son.
4. Validate that the heirs’ identity (however established) aligns with the kinship priority list in Va. Code § 64.2-200.
This section of the Virginia Code outlines the hierarchy of estate ownership for individuals who pass away without a will. The rightful beneficiaries of the estate must fall under one of the specified categories in this Code. It is essential to note that this particular Code section has been subject to multiple statutory revisions. If the decedent’s date of death predates December 31, 1990, consider consulting your underwriter for further guidance.
5. Verify the identity of the heirs by acquiring an affidavit from two impartial individuals who are knowledgeable about the situation.
It is important that these individuals are not family members and do not have a vested interest in the transaction’s proceeds or benefits.
Let’s Bring it Home!
Dying without a will, a situation known as intestate succession, can have significant implications for the distribution of your assets and the financial well-being of your loved ones after your passing. When an individual passes away without a will in place, the intestacy laws of the state or jurisdiction where they lived will determine how their estate is divided among their heirs.
Creating a will allows you to specify how you want your assets to be distributed and provides clarity and direction for your family and beneficiaries. Dying without a will only adds an additional stress point for your family that can easily be avoided. By taking the time to outline your wishes in a legally valid will, you can ensure that your estate is distributed according to your desires and that your loved ones are provided for in the manner you intend.
Planning ahead and creating a will is an essential step in securing your legacy and ensuring that your assets are managed and distributed according to your wishes. By proactively addressing your estate planning needs, you can avoid the uncertainties and complexities of intestate succession and provide peace of mind for yourself and your loved ones. Don’t leave your legacy to chance—take control of your future by creating a comprehensive estate plan that reflects your values and priorities.