Over two-thirds of U.S. adults have no Last Will and Testament or Estate Plan, according to a recent Caring.com study.
Dying without a Will (and without an Estate Plan that uses a Living Trust as a Will substitute to avoid probate) means that your state’s probate court will force the distribution of your assets according to the intestate succession laws (also called the laws of intestate) in your state. State intestacy laws differ from state to state.
What Happens if You Die Intestate?
If you die intestate, the probate process must be followed to give notice to appropriate persons and creditors and to eventually distribute your remaining estate to your family members pursuant to your state’s laws of intestacy. Here are some things you should know:
- If you die intestate, the first step of the probate process is for someone, typically one of your family members, to present themselves to the probate court and offer to be the administrator of your intestate estate. Each state has an order of priority that determines which family members may serve in this role.
- One of the first jobs of the administrator is to identify your surviving next of kin to determine your legal heirs. These legal heirs are all entitled to receive written notice of your death and the right to participate in probate proceedings. Even if you die with a Will, these individuals who would have been your heirs under the intestacy laws must be given notice of your death and the right to participate in any activities in your estate, including distributions. This required notice provides for the opportunity for legal heirs to raise objections and concerns. Examples of objections and concerns include challenging a fraudulent will, claiming you were incompetent or under undue influence or duress when you signed your will, and seeking to remove a personal representative who fails to meet their duties.
- The process of identifying your heirs at law is often straightforward but might take a considerable amount of time if you were not married, left no children, left children from more than one relationship, left deceased children, left children from whom you were estranged, or left children with whom you had no contact.
- If you don’t have a surviving spouse or children, your parents or siblings will likely inherit from your intestate estate. If you have a deceased child, your grandchildren will typically inherit the portion of your estate that your deceased child would otherwise have inherited.
- While intestate succession laws go a long way in preventing your assets from escheating (going to the state), there are situations in which escheat can happen.
Who Inherits under Intestate Succession Laws in Virginia, Maryland, and Washington, DC?
While dying without a Will or a trust-based Estate Plan is not recommended, when it happens, your state’s intestate succession laws determine who your surviving heirs are.
Adopted children receive an intestate share as if they are biological children.
Foster children and stepchildren do not receive an automatic share, but stepchildren may receive a share in Virginia and Maryland if you have no biological relatives of your own.
Below are the laws regarding intestacy in Virginia, Maryland, and Washington, DC:
Virginia Intestacy Law
§ 64.2-200. Course of descents generally; right of Commonwealth if no other heir.
In Virginia, if you have any relatives (even relatives of your deceased spouse), no matter how distant, they will inherit your estate rather than your estate escheating and going to the state. If you die intestate as a resident of Virginia, the intestate succession law dictates that your assets go in the following course:
- If you have a surviving spouse, all of your estate goes to your surviving spouse unless you’re also survived by children or their descendants, one or more of whom are not children or descendants of your surviving spouse, in which case two-thirds of your estate goes to your children and their descendants, and one-third of your estate goes to your surviving spouse.
- If you do not have a surviving spouse, then your estate goes to your children and their descendants. Half-blood relatives get half as much of a share as a whole-blood relative would. VA Code § 64.2-202(B).
- If you die with no surviving spouse and no descendants, then your estate goes to your parents or to your surviving parent.
- If you die with none of the foregoing, then your estate goes to your siblings and their descendants.
- If you die with none of the foregoing, one-half of your estate goes to the next of kin of one of your parents, and one-half goes to the next of kin of your other parent in the following course:
- To your grandparents or to the surviving grandparent.
- If you have no grandparent, then to your aunts and uncles and their descendants.
- If there are none of the foregoing, then to your great-grandparents.
- If there are none of the foregoing, then to the siblings of your grandparents and their descendants.
- And so on, in other cases, without end, passing to the nearest lineal ancestors and the descendants of such ancestors.
- If there are no surviving kin of one of your parents, your whole estate goes to the surviving kin of your other parent. If there are no kin of either parent, your whole estate goes to the next of kin of your most recent spouse, if any, provided that you and your spouse were married at the time of your spouse’s death.
- If there is no other heir of your estate, then your estate is subject to escheat to the Commonwealth of Virginia in accordance with Virginia Code Section 55.1-2400 et seq.
Maryland Intestacy Law
In Maryland, like Virginia, if you have any relatives (even relatives of your deceased spouse), no matter how distant, they will inherit your estate rather than your estate escheating and going to the state. Without a valid Will or trust-based Estate Plan, your personal representative must distribute your property according to Maryland intestacy law:
If you left a spouse (or registered domestic partner, who is included for the purpose of these intestacy laws in the definition of spouse), but no living children:
- Your surviving spouse inherits everything. Md. Code, Estates and Trusts, § 3–102(a)
If you left a spouse and children who are minors (under 18):
- Your surviving spouse inherits 50 percent, and your children inherit 50 percent. Md. Code, Estates and Trusts, § 3–102(b)
If you left a surviving spouse and descendants (who are not descendants of the surviving spouse) but no minor children, Md. Code, Estates and Trusts, § 3–102(c) says:
- Your surviving spouse inherits the first $100,000 of your intestate assets and half of the rest; and
- Your descendants inherit everything else.
If you left children but no spouse:
- Children inherit everything. Code, Estates and Trusts § 3–103.
Md. Code, Estates and Trusts, § 3–104 covers the remaining heirs.
If you left surviving parents but no spouse or descendants:
- Your parents (or your surviving parent) inherit everything.
If you left surviving siblings but no surviving spouse, descendants, or parents:
- Your siblings inherit everything.
If you left none of the foregoing, then your estate gets distributed in the following order:
- One-half to each pair of grandparents (if only one grandparent of a pair survives, one-half to the survivor).
- If neither grandparent of a pair survives, one-half to the issue of that pair of grandparents, by representation.
- In the event that neither of one pair of grandparents and none of the issue of either of that pair survives, the one-half share applicable shall be distributed to:
- The other pair of grandparents;
- The survivor of the other pair of grandparents; or
- The issue of either of the other pair of grandparents, in the same manner as prescribed for their half share.
In this subsection, “stepchild” means the child of your spouse so long as you and your spouse were not divorced when you died.
- If there is no surviving blood relative entitled to inherit under this section, your net estate shall be divided into as many equal shares as there are:
- Stepchildren who survive you; and
- Stepchildren who predeceased you with surviving descendants.
- Each stepchild who did survive you shall receive one share.
- The issue of each stepchild who did not survive you shall receive one share apportioned by representation.
In Maryland, unlike Virginia, a relative of the half-blood has the same status as a relative of the whole blood of the same degree. Md. Code, Estates and Trusts § 1-204.
Only if there is no heir of your estate, then your estate is subject to escheat to the state, which means that your property will go to the Maryland Department of Health or the county board of education in the county where you were domiciled.
District of Columbia Intestacy Law
In the District of Columbia, the personal estate of a deceased resident, if not bequeathed, is distributed to the surviving spouse or surviving domestic partner, children, and other persons as designated in this section of DC’s intestacy law.
The intestate share of a decedent’s surviving spouse or surviving domestic partner is:
(i) The entire estate, if no descendant or parent of the decedent survives the decedent;
(ii) Two-thirds of any balance of the estate, if the decedent’s surviving descendants are also descendants of the surviving spouse or surviving domestic partner, and there is no other descendant of the surviving spouse or surviving domestic partner who survives the decedent;
(iii) Three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent;
(iv) One-half of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse or surviving domestic partner and the surviving spouse or surviving domestic partner has one or more surviving descendants who are not descendants of the decedent; or
(v) One-half of any balance of the intestate estate, if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse or surviving domestic partner.
If you die intestate in the District of Columbia, your unborn child has the same right of inheritance as a living child. However, if you are unmarried and have no children, an unborn sibling or other relative doesn’t have the same right to inherit as a living sibling or other relative.
When you die intestate and leave children but no other descendants, the surplus is divided equally among them.
- 19–307. Grandchildren’s share.
- Subject to subsection (b) of this section, and to Section 19-319, when you die intestate, your living children inherit, and the children of any deceased children, i.e., your grandchildren, take the deceased child’s share.
- Those in equal degree claiming in the place of an ancestor take equal shares.
- 19–308. Share of father and mother.
When you leave no child or other descendant, the whole is divided equally between your father and mother or their survivor.
If you leave a brother or sister, or child or descendant of a brother or sister, and no child, descendant, or father or mother, the brother, sister, or child or descendant of your brother or sister is entitled to the whole.
Each of your brothers and sisters is entitled to an equal share, and the children or descendants of your brother or sister stand in the place of their deceased parents respectively.
If you have no children, descendants, parents, brothers, sisters, nieces, or nephews, all collateral relations in equal degree share, and representation among the collaterals is not allowed.
Your grandparents, or such of them as survive, share alike where there are no collaterals.
When a person entitled to distribution dies before the distribution is made, the person’s share goes to the person’s estate or legal representatives.
There is no distinction between the kindred of the whole- and the half-blood (different than Virginia but the same as Maryland).
Can a Person Handle Probate Alone?
Although intrusive, expensive, and typically an all-around nightmare, an individual can handle the process of probate alone. However, if there are conflicts within the family, large numbers of assets, or certain types of assets (such as a business or intellectual property), you should engage an Estate Planning attorney for trust administration, which is an area we handle at the Farr Law Firm.
Avoiding Probate
To avoid the nightmare of probate, better Estate Planning typically involves using a Revocable Living Trust to distribute your assets upon your death and having a trusted family member or a professional trustee that you choose distribute your assets.
A Revocable Living Trust to avoid after-death probate, along with a Financial Power of Attorney and an Advance Medical Directive to avoid lifetime probate, will give you much-needed peace of mind and save your family a tremendous amount of stress, time, and money should something happen to you.
- A Living Trust allows for the distribution of assets after death according to your wishes and without court involvement.
- A General Power of Attorney names someone you trust to make financial decisions on your behalf if you become incapacitated, thus avoiding the need for a conservatorship (called guardianship of the property in Maryland and some other states), which is the court-supervised process of living probate.
- An Advance Medical Directive names someone you trust to make medical decisions for you if you’re not able to, thus avoiding the court-supervised guardianship process that’s also part of lifetime probate.
Plan in Advance to Avoid Probate
As you can see, if you die without proper Estate Planning, it could create unnecessary headaches for those left behind and needlessly waste a significant portion of your assets on taxes, attorney’s fees, and probate expenses. This is why it is important to have an experienced Estate Planning attorney, such as those here at the Farr Law Firm, to create your estate plan and be sure to keep everything up-to-date.
Once completed, it is important to review your estate plan at least every 3 to 5 years and make necessary updates accordingly, or to join our Lifetime Protection Plan® to ensure that your documents are up-to-date each year or whenever needed.
If you have not done your Estate Planning, Incapacity Planning, or retirement planning or had your planning documents reviewed this year, please call us to make an appointment:
Estate Planning Fairfax: 703-691-1888
Elder Law Fredericksburg: 540-479-1435
Retirement Planning Rockville: 301-519-8041
Elder Care DC: 202-587-2797
About Evan H Farr, CELA, CAP
