Every state has different laws, but in Virginia, if you die without a will, the state essentially drafts a will on your behalf in a process called “intestate succession.” In this situation, if you have a surviving spouse, they receive the assets that are co-owned, which may or may not be what you wish.
If your spouse is no longer alive, then your children would receive equal shares of your assets. For second and third marriages, your assets would be split accordingly between spouses and children.
Again, these consequences may be unintended and go against your wishes, which is why we recommend that everyone at least has a will or trust.
The probate process occurs after a loved one passes away. It starts with filing the probate worksheet, death certificate, and the will (if there is one) in the circuit court where the decedent resided. The probate process manages the distribution of the assets of the estate and settles the final debts of the decedent.
There are several steps involved, including:
- Naming an executor or personal representative
- Notifying heirs
- Appraising the all of the property
- Paying taxes, and creditors (including the IRS)
- Distributing leftover funds
While these steps seem linear and straightforward, a surprising number of things can go wrong that complicate the process. Not all items in a will can pass through probate, including life insurance policies, assets owned in a living trust, and titles deemed “joint tenants with right of survivorship.”
Further, if an heir feels slighted or believes other beneficiaries are receiving more than their fair share, then they can contest the will. When situations like these occur, it’s necessary to have an attorney to help resolve them.
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