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What happens after you die? While we don’t know all of the answers, we can tell you what will happen to your estate depending on what kind of legal documents you have in place (or not)! Death can be a sensitive and difficult subject for many people (that’s understandable and completely normal), but don’t let the discomfort keep you from getting the necessary legal documents in place to ensure that your estate and the legacy you’ve worked so hard to build are distributed according your wishes.

When considering estate planning, it’s crucial to understand how different scenarios impact the distribution of your assets. In Virginia, the fate of your estate varies significantly based on whether or not you have a will and/or a trust. Each option has distinct legal and practical implications for your loved ones.

Scenario 1: Dying Without a Will (Intestate)

When someone dies without a will, they are said to have died “intestate.” In Virginia, as in many states, the state laws of intestacy govern the distribution of the deceased person’s estate, which consists of all their assets both liquid (e.g., cash, stocks, bonds, etc.) and illiquid (e.g., real estate, jewelry, vehicles, etc.). This process can be complex, time-consuming, and sometimes costly. Here’s a detailed look at the procedures, the timeline, and the costs involved in intestate distribution:

1. Appointment of an Administrator: When a person dies intestate, the court appoints an administrator to manage the estate. Typically, the surviving spouse or a close family member will be given priority to serve as the administrator, but if none are able or available, the court may appoint a third party. Once approved by the court, the administrator will receive a qualification certificate from the court to show that he or she has the authority to act on behalf of the estate.

2. Inventory of the Estate: The administrator is responsible for identifying and valuing all assets of the deceased, including real estate, personal property, bank accounts, and other investments. An inventory of the estate must be filed with the Commissioner of Accounts within four months of the administrator’s appointment.

3. Notification of Heirs and Creditors: The administrator must notify all potential heirs and creditors of the deceased’s passing. Notices must be published in a local newspaper to alert unknown creditors and allow them time to make claims against the estate.

4. Payment of Debts and Taxes: The administrator uses the estate’s assets to pay off any debts, taxes, and expenses, including funeral costs and administrative fees. This step is crucial to ensure that the estate’s obligations are settled before distribution to heirs. The state strongly recommends that the administrator follow the proper Debts and Demands procedures, which includes scheduling a court hearing for any creditors to come forward and make a claim against the estate, unless they are absolutely sure they are aware of all of the decedent’s debts, accrued and contingent. Administrators can be held liable for unpaid debts after the distribution of an estate.

5. Distribution of the Estate: After debts and expenses are paid, the remaining assets are distributed according to Virginia’s intestate succession laws. The administrator must file a accountings with the Commissioner of Accounts, detailing all transactions and distributions. This typically involves:

·         Spousal Inheritance: If the deceased was married, the surviving spouse usually inherits the entire estate. However, if there are surviving children (minors or adults) from another relationship, the estate is divided, with the spouse receiving one-third and the children sharing two-thirds.

·         Children’s Inheritance: If there is no surviving spouse, the estate is divided equally among the deceased’s children. If a child predeceases the parent, that child’s share is distributed among their descendants (the deceased’s grandchildren).

·         Other Relatives: If there are no immediate family members (spouse or children), the estate is passed to more distant relatives based on a hierarchical system of kinship, starting with parents, siblings, and then more distant relatives like nieces, nephews, and cousins.

·         State Escheat: If no relatives can be found, the estate ultimately escheats to the state of Virginia.

Timeline for Intestate Distribution

The duration of the intestate distribution process can vary widely, but it generally takes at least one year to complete. Factors influencing the timeline include:

  • Complexity of the Estate: Larger or more complex estates with numerous assets can take longer to inventory and value.
  • Locating Heirs and Creditors: Finding all potential heirs and notifying creditors can extend the process.
  • Disputes and Challenges: Any legal disputes or challenges by heirs or creditors can significantly delay the administration.
  • Court Schedules: The availability and schedules of the courts and the Commissioner of Accounts can also affect the timeline.

Costs Involved in Intestate Distribution

The costs of administering an intestate estate can vary but typically include:

1. Court Fees: Fees for filing petitions and other required documents with the court.

2. Bond Premiums: The court may require the administrator to post a bond, ensuring the faithful performance of their duties. The premium for this bond is an estate expense.

3. Attorney Fees: Legal fees for an attorney to assist with the administration process can be substantial, especially if the estate is complex or there are disputes.

4. Accounting Fees: Fees for the preparation of required inventories, accountings, and tax returns.

5. Publication Costs: Costs associated with publishing notices to creditors in local newspapers.

6. Miscellaneous Expenses: Other expenses might include appraisal fees for valuing assets, costs for copying and mailing documents, and any other administrative costs.

In total, the cost of administering an intestate estate can range from a few thousand dollars to a substantial percentage of the estate’s value, particularly if legal and administrative fees are high.

Administering an intestate estate in Virginia involves a detailed legal process, with specific steps that must be followed to ensure a fair and lawful distribution of the deceased’s assets. The timeline can vary, but it often takes around a year to complete. Costs can add up quickly, impacting the value of the estate left for the heirs.

To avoid the uncertainties and potential complications of intestate distribution, it’s advisable to create a comprehensive estate plan, include a will and/or a trust. This ensures that your wishes are honored and can significantly streamline the process for your loved ones. For assistance with estate planning or navigating intestate succession, contact our experienced estate planning attorneys today.

Scenario 2: Dying with a Will (Testate)

Having a will in place (dying “testate”) provides significant control over how your estate is distributed. A will allows you to:

1. Choose Beneficiaries: You can specify exactly who will receive your assets, and in what proportions. This can include family members, friends, charities, or other organizations.

2. Appoint an Executor: You can designate an executor in your will to manage your estate. The executor will ensure that your wishes, as outlined in the will, are carried out, including paying off debts and distributing assets.

3. Appoint Guardianship for Minors: If you have minor children, your will can specify who you wish to be their guardian.

4. Make Specific Bequests: You can make specific bequests of particular items of personal property, like family heirlooms, jewelry, or real estate.

However, having a will does not avoid probate. Probate is the legal process of validating and recording a will in the jurisdiction where the deceased person last held a primary residence, which can be time-consuming and costly. The will becomes a public record, which means that the details of your estate are not kept private. While the probate process is substantially similar when you die  testate (with a will) and when you die intestate (without a will), the benefit of having a will is that you leave your loved ones and executor with a clear directive from you on how your estate should be handled and who has the authority to carry out your wishes.

Scenario 3: Dying with a Trust

A trust offers a different approach to estate planning, providing more control, privacy, and potential tax benefits. Here’s how it works:

1. Avoiding Probate: One of the main advantages of a trust is that it can help your estate avoid probate. Assets placed in a trust are managed according to the trust’s terms and are not considered a part of the probate estate to be handled through the probate process.

2. Continued Management: A trust allows for the continued management of your assets by a trustee. This can be particularly beneficial if you want to provide for minor children, individuals with special needs, a blended family structure, or to manage complex assets.

3. Privacy: Unlike a will, a trust is not a public document. The details of your estate, including who inherits what, remain private.

4. Flexibility and Control: Trusts can be tailored to meet specific needs, such as setting conditions for when and how beneficiaries receive their inheritance. This can include setting up staggered distributions or protecting assets from creditors.

5. Tax Benefits: Trusts can help minimize the tax burden on your beneficiaries, especially when it comes to estate taxes and future capital gains taxes.

6. How a Will Fits In: Even when you choose to create a trust, you should always still have a will in place. Often referred to as a “pour over will”, this shortened version of a will is done in conjunction with your trust to ensure that all of your assets are ultimately controlled by the terms of the trust.

Choosing between a will and a trust depends on your specific circumstances and estate planning goals, but each is substantially better than dying without any estate planning documents in place. While dying intestate leaves the distribution of your estate up to state law, having a will allows you to specify your wishes and appoint an executor. A trust offers the most control, privacy, and flexibility, and can help avoid probate.

It’s essential to consult with an experienced estate planning attorney in Virginia to understand the best options for your situation and to ensure your estate plan aligns with your wishes and provides for your loved ones effectively. Contact our office today to discuss your estate planning needs and secure peace of mind for the future.

This material is for informational purposes only. It is not intended as legal advice and does not create an attorney-client relationship between its readers and Dunlap Law. Consult an attorney before taking action on issues outlined here. This is attorney ADVERTISING MATERIAL.

Image by Susanne Nicolin from Pixabay


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