If you own a home in the U.S., you will want to have set up an estate plan (or a Peace of Mind Plan as we prefer to call it) so that you can ensure that it goes to the individual(s) you want it to when you pass away. If your home is jointly owned with a spouse or others, the surviving owners are transferred your share of the house immediately upon your death. There are some legal formalities after that but the house title is quickly transferred.
But for those with no joint owners, the house will be part of your probate Estate unless you take certain action while you are alive. One option for your home is to place it in a Trust so that it will not only go to whom you desire, but it will also help you in avoiding the probate process, which can be both lengthy and expensive.
Another probate avoidance option available in Virginia and many other states (though sadly not Maryland or DC) is the use of a Transfer on Death Deed (TOD Deed) that states who gets your real estate upon your death and keeps it out of probate.
We can provide you with more information on the Trust or TOD Deed options if you contact us. If you have not placed your house in a Trust or used a Transfer on Death Deed, there are a number of different scenarios that could occur when you die that depend on whether you have a Will or not, and the makeup of your surviving heirs.
If You Have a Will
While those in Virginia who die with a Will can ensure that their property is inherited, as they so desire, their loved ones will still have to go through the probate process. In some states probate can be a long and expensive ordeal but Virginia probate is not bad in comparison to others–but can still take time and cost quite a bit. The only Estates of this kind that can avoid the probate process are those that are concerned “small.” A small Estate is one in which the decedent had no real property (home) and $50,000 or less in personal property. In such a situation the recipients would have to wait at least 60 days since the individual passed away. Any Estates with real property must go through the probate process.
If You Don’t Have a Will
If you die in Virginia without a Will, this is called dying “intestate.” Virginia has its own intestate succession laws that will apply. Under these laws the court will choose an Executor of the Estate, who will assist in settling the decedent’s debts, including any taxes he or she owed. The Estate will then be divided as follows:
- If the decedent has a surviving spouse and no children, the spouse will receive the entire estate; in this case the entire house (assuming he or she was not a joint owner already for all of these scenarios).
- If the decedent has a surviving spouse and children who are of them both, the surviving spouse will still receive the entire estate. It’s his or her decision to share it all or in part with the children. It’s important to note that Virginia doesn’t differentiate between a biological child and an adopted child.
- If the decedent has a surviving spouse and one or more children who are not born or adopted of that marriage, those children will receive two-thirds of the estate, divided equally among them. The surviving spouse will receive the other third of the estate. In such a situation, the house may have to be sold so that each recipient could receive the proceeds to which he or she is entitled. However, if the decedent had enough other assets that the children could receive their rightful share through other property, etc., then the surviving spouse could get to keep the house.
- If the decedent has children but does not have a spouse, the entire estate will be divided equally among them. In this case the children would receive equal shares of the house, or when possible the value of the house could be offset by other assets so as to allow one child the house while the others receive other assets of the same value.
- The decedent’s grandchildren are not automatically entitled to any inheritance under Virginia’s intestate succession laws – unless their parent died before he or she was born. If a child is born after his or her parent dies, he or she is then entitled to the same inheritance rights as if he or she was a child born during the decedent’s lifetime. This also holds true for children who are conceived via artificial insemination, using the DNA of their parent even after he or she has died.
- Virginia’s intestate laws differ from many other states in regards to children who are born out of wedlock. Without a will or a trust, these children may only inherit under two different circumstances:
- The decedent and the child’s mother were married at some point even though their marriage was later found illegal, voided or dissolved by the courts; or
- A genetic test reveals paternity, and the father acknowledges the child as his own at some time while he is still alive.
Virginia’s Intestate Succession Law Hierarchy
Finally, if the decedent has no surviving spouse and no children, his or her assets (including the home) will go to his or her parents. BUT:
|If the parents are not alive…||The assets will be split equally among any siblings.|
|If there are no siblings or they are no longer alive…||The assets will be split equally among any nieces and nephews.|
|If there are no nieces or nephews or if they are no longer alive…||The assets will be split equally among any paternal or material grandparents.|
|If there are no paternal or maternal grandparents or if they are no longer alive…||The assets will be split equally among any paternal or maternal aunts and uncles.|
|If there are no paternal/maternal aunts and uncles or if they are no longer alive…||The assets will be split equally among any paternal or maternal cousins.|
|If there are no paternal/maternal cousins or if they are no longer alive…||The assets will be split equally among any great-grandparents and great aunts and uncles.|
|If the decedent has no living family members…||The estate (which includes the house) will go to the state of Virginia.|
That’s why if you want to ensure that your Estate, including your house, goes to whom you desire, it’s important to consult with a knowledgeable and experienced Virginia estate planning attorney.
Reilly Law PLC Helps Those in Virginia Who Are in Need of a Comprehensive Peace of Mind Plan
At Reilly Law PLC, we understand the importance of protecting your assets – and your wishes. We will help you to create a comprehensive Peace of Mind Estate plan (which includes your house and other assets), as you desire, to make the lives of your loved ones easier. To learn more or to schedule a free consultation, contact us today!