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Fairfax, VA Probate Blog

Tuesday, February 11, 2014

Distinguishing Intestate Probate Assets from Non-Probate Assets

Under Virginia Law, if a decedent dies without a duly executed Last Will & Testament, then that person's probate assets will be distributed according to statutory law. We say that said person died intestate (without a valid Will).  Additionally we refer to the process as intestacy and the decedent's probate estate as the decedent's intestacy estate. 

Critical Distinction: If a decedent dies intestate, probate assets generally are distributed in accordance with intestacy law. However non-probate assets generally don't pass according to intestacy law.

It is crucial to note that their is a significant difference between probate and non-probate assets. Probate assets are assets that have not otherwise been validly designated to go to another person, business or charity. Non-probate assets are assets that have been designated to go to another person, business or charity. Typical non-probate assets include assets that pass to a beneficiary (not the decedent's estate) via a beneficiary designation or right of survivorship. 

The Virginia law applying to the intestacy distribution of real estate has been provided below.

 

Virginia Code Section 64.1-1 Course of decents generally 

When any person having title to any real estate of inheritance shall die intestate as to such estate, it shall descend and pass in parcenary to such of his kindred, male and female, in the following course:

First. To the surviving spouse of the intestate, unless the intestate is survived by children or their descendants, one or more of whom are not children or their descendants of the surviving spouse, in which case two-thirds of such estate shall pass to all the intestate's children and their descendants and the remaining one-third of such estate shall pass to the intestate's surviving spouse.

Second. If there be no surviving spouse, then the whole shall go to all the intestate's children and their descendants.

Third. If there be none such, then to his or her father and mother or the survivor.

Fourth. If there be none such, then to his or her brothers and sisters, and their descendants.

Fifth. If there be none such, then one moiety shall go to the paternal, the other to the maternal kindred, of the intestate, in the following course:

Sixth. First to the grandfather and grandmother or the survivor.

Seventh. If there be none, then to the uncles and aunts, and their descendants.

Eighth. If there be none such, then to the great grandfathers or great grandfather, and great grandmothers or great grandmother.

Ninth. If there be none, then to the brothers and sisters of the grandfathers and grandmothers, and their descendants.

Tenth. And so on, in other cases, without end, passing to the nearest lineal ancestors, and the descendants of such ancestors.

Eleventh. If there be no paternal kindred the whole shall go to the maternal kindred; and if there be no maternal kindred, the whole shall go to the paternal kindred. If there be neither maternal nor paternal kindred, the whole shall go to the kindred of the husband or wife, in the like course as if such husband or wife had died entitled to the estate.

 

Virginia Code Section 64.1-11 Distribution of personal estate

When any person shall die intestate as to his personal estate or any part thereof, the surplus (subject to the provisions of Article 5.1 (Sec. 64.1-151.1 et seq.) of Chapter 6 of this title), after payment of funeral expenses, charges of administration and debts, shall pass and be distributed to and among the same persons, and in the same proportions, to whom and in which real estate is directed to descend. However, if the intestate was married, the surviving spouse shall be entitled to one-third of such surplus, if the intestate left surviving children or their descendants, one or more of whom are not children or descendants of the surviving spouse. If no such children or their descendants survive, the surviving spouse shall be entitled to the whole of such surplus.




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