Intestate Estate FAQs
Who inherits the property of an intestate (person dying without a will)?
If a person dies without a will, Virginia law provides a course of descents as follows (after payment of funeral expenses, debts and cost of administration):
- All to the surviving spouse, unless there are children (or their descendants) of someone other than with the surviving spouse, in which case, one-third passes to the surviving spouse and the remaining two-thirds is divided among all children.
- If no surviving spouse, all assets pass to the children and their descendants.
- If none, then all assets pass to the deceased's father and mother, or the survivor.
- If none, than all passes to the deceased's brothers and sisters or their descendants.
How is qualification as an administrator determined if there is no will?
Administration shall be granted as follows:
- During the first thirty days following the intestate's death, the clerk may grant administration (i) to a sole distributee or his designee or (ii) in the absence of a sole distributee, to any distributee or his designee who presents written waivers of right to qualify from all other competent distributees.
- After thirty days have passed since the intestate's death, the clerk may grant administration to the first distributee, or his designee, who applies therefore, without either waiting for any further period of time, or requiring the consent or waiver of any other distributee; provided, however, that if, during the first thirty days following the intestate's death, more than one distributee notifies the clerk of an intent to qualify after the thirty-day period has elapsed, the clerk shall not appoint any distributee, or his designee, until the clerk has given all such distributees an opportunity to be heard.
- After 45 days have passed since the intestate's death, the clerk may grant administration to any nonprofit charitable organization that operated as a conservator or guardian for the decedent at the time of his death; however, (i) if, during the first 45 days following the intestate's death, any distributee notifies the clerk of an intent to qualify after the 45-day period has elapsed, the clerk shall not appoint any such organization administrator until the clerk has given all such distributees an opportunity to be heard, and (ii) such organization certifies that it has made a diligent search to find an address for any sole distributee and has given not less than 30 days notice by certified mail of its intention to apply for administration to the last known address or addresses of the distributee discovered or, alternatively, that it has not been able to find any such address. Qualification of such organization is not subject to challenge on account of a failure to have made the certification herein required.
- After sixty days have passed since the intestate's death, the clerk may grant administration to one or more of the creditors or to any other person, provided such creditor or other person certifies that he has made diligent search to find an address for any sole distributee and has given not less than thirty days notice by certified mail of his intention to apply for administration to the last known address or addresses of the distributee discovered or alternatively, that he has not been able to find any such address. Qualification of a creditor or person other than a distributee is not subject to challenge on account of a failure to have made the certification herein required.
- The court may appoint administrators under the same conditions as herein provided for the clerk, and when the court determines that it is in the best interests of an intestate's estate, the court may depart there from at any time and appoint such person as the court, in the exercise of its discretion, deems most appropriate.
B. The court or clerk shall not grant administration to any person unless satisfied that he is suitable and competent to perform the duties of his office. A person under a disability as defined in § 8.01-2 is not eligible to qualify.
C.If any beneficiary of the estate objects, no husband, wife or parent who has been barred from all interest in the estate because of desertion or abandonment as provided under § 64.2-308 is suitable to serve as an administrator of the estate of the deceased spouse or child, as the case may be.
Qualifying as an administrator does not automatically make one a beneficiary to the decedent’s estate. The beneficiaries in an intestate estate are the legal heirs at law. Heirs at law are set forth by statute. (See §64.2-200 of the 1950 Code of Virginia, as amended.)
Where should I go to qualify as personal representative for an estate?
To the clerk’s office of the circuit court of the jurisdiction:
- where the decedent was last known to reside, (this includes assisted living facilities) if none, then;
- where the decedent owned real estate, if none; then
- where the decedent died or had any estate.
For persons residing in a nursing home/convalescent home, pursuant to §64.2-454of the 1950 Code of Virginia, as amended, the place of legal residence of such person shall be presumed to be the same as it was before such person became a patient; however, that presumption may be rebutted in Court by competent evidence.
What if the property is held jointly with the right of survivorship?
The property will pass automatically. If there are no other assets than you will not to file anything with Clerk's Office. In order to remove the deceased from the tax records you may need to provide a death certificate to the Commissioner of Revenue.
What does dying “testate” or “intestate” mean?
A person dies testate if he/she left a valid will. A person dies intestate if he/she did not leave a valid will. If a person dies intestate, then the laws of the Commonwealth of Virginia, in effect at the time of death, determine who the heirs are and hence who receives the decedent’s property.
What are the fees associated with probate?
The Code of Virginia mandates fees for probate. State Tax is $1.00 per $1,000. Currently, Dinwiddie County does not charge a local probate tax. Additional fees will vary depending on the type of estate but it will usually range from $20 to $100. The statutes may change annually; therefore, check with the Probate Division for updates.
How is the value of an estate determined?
To determine the value of the estate you will need to compute separate sub-totals for real estate/property and personal estate/property.
Real Estate/Property - The value of all real estate that was solely in the decedent's name. Do not include property that was held jointly with the right of survivorship. The local county/city assessment will be used to determine the value. Dinwiddie County's assessments can be viewed online. The tax map also has the assessments. Do not deduct any mortgages or debts on the property.
Personal Estate - Personal assets that was in the decedent's name only at the time of his/her death which may include: bank accounts, savings accounts, certificate of deposits, stocks and bonds, retirement accounts, life insurance policies and other types of securities, as well as personal belongings and vehicles. Do not include accounts that are held jointly or assets payable to a named beneficiary (e.g. life insurance policies with a named beneficiary) or assets in a trust or assets payable on death. Estimate the fair market value of the assets as of the decedent's date of death. Sometimes you will only have an estimate of the value. An estimate is sufficient but try to make it as close as possible. Do not deduct debts owed, loans or mortgage amounts.
What does bond with surety mean?
A surety bond is a guarantee by a third party (usually an insurance or bonding company) that an Executor/Administrator will properly account for all money and property in the estate and that the Executor/Administrator will discharge his/her Executor/Administrator duties as required by law.