What Happens if You Die Without a Will in Virginia, Maryland, or Washington, D.C.?

Q. I am retired and recently moved to the DC area to be closer to my daughter, her husband, and my three grandchildren. I have lived a pretty simple life, and don’t have a lot. Although I am now in my early 70’s, I have never done estate planning. After reading your newsletter and perusing your website, I think it’s about time I should!

Now that I am in the right mindset to do my estate planning (better late than never!), I discussed it with my daughter. She is convinced that I don’t even need a Will, since I have little means, and the state will figure things out. She doesn’t think her family will need one either, and doesn’t like talking about it. What happens if you die without a Will in the DC area? In your opinion, do you think someone like me needs a Will, and what other estate planning documents would you recommend if I decide to move forward?

Thanks for your help!

A. Many people delay estate planning or do not think it is important, partly because for many it’s unpleasant to contemplate our own mortality, and partly because younger adults believe such paperwork isn’t necessary until they reach old age. It is commendable that you are making the decision to do your estate planning now. As you said, “it’s better late than never!”

Your daughter mentioned that “the state will figure things out.” Although this is true, it is a long, difficult, and painful process. If you don’t create an estate plan, you’re letting the state legislature and/or the courts decide how to divide your assets, which may not reflect your wishes. Without a road map, it just makes it much more difficult for everyone.

Most people work their entire lives to accumulate what they own. Everyone needs the peace of mind that comes with making sure that their legal and financial affairs are taken care of if they become incapacitated, that decisions about health care are carried out the way they’d like even if they’re not able to make them, and that their loved ones are taken care of when that time eventually comes. This is something to discuss with your daughter, and we have resources to get the conversation started here.

What Happens When You Don’t Have a Will in Place?

When many first consider Estate Planning, they immediately think of preparing a Last Will and Testament. While having a Will is slightly better than dying without a Will (i.e., dying intestate), Wills also have some major drawbacks – the biggest drawback being that a Will causes your estate to go through probate — the exact same probate process that you’re estate will go through if you die intestate. Here’s what happens if you die without a Will (intestate) in Virginia, Maryland, or Washington, DC:

Virginia

If you die intestate while residing in the Commonwealth of Virginia, the Commonwealth has established a number of laws known as “intestacy laws” or “laws of intestate succession.” These laws dictate that your probate property will be distributed as follows:

1. Your surviving spouse (unless you have children from a prior relationship, in which case two-thirds of your estate goes to your children and their descendants, and one-third of the estate goes to your surviving spouse;

2. If you have no surviving spouse, to your children and their descendants;

3. If you have no children, to your parents or your surviving parent;

4. If both parents are deceased, to your siblings and their descendants;

5. If there are no siblings and no descendants of siblings, then 1/2 to paternal next of kin and 1/2 to maternal next of kin.

Intestate succession in Virginia provides for an even more detailed line of succession after this point–you can read further in Va. Code § 64.2-200.

Keep in mind that this is the default succession path for an individual who dies in an uncomplicated family situation. Complications that occurred during life, such as divorce and remarriage may affect succession, and who inherits what share of an estate.

Washington, D.C.

D.C.’s intestacy law , like Virginia’s, passes your probate assets to your closest relatives, starting with your surviving spouse or surviving domestic partner. But how much goes to your surviving spouse or domestic partner is quite complicated and depends on a lot of different factors:

The intestate share of your surviving spouse or surviving domestic partner is:

(1) Your entire estate, if no descendant or parent survives you;

(2) Two-thirds of your estate if your surviving descendants are also descendants of your surviving spouse or domestic partner and there is no other descendant of your surviving spouse or surviving domestic partner who survives you;

(3) Three-fourths of your estate if no descendant of yours survives you, but a parent does survive you;

(4) One-half of your estate if all of your surviving descendants are also descendants of your surviving spouse or domestic partner and your surviving spouse or domestic partner has one or more surviving descendants who are not also your descendants; or

(5) One-half of your estate if one or more of your surviving descendants are not descendants of your surviving spouse or domestic partner.

If you don’t have a spouse or domestic partner or descendants, your parents will get your property. If you don’t have a surviving spouse, descendants, or parents, then everything will go to your siblings and their descendants. If still no blood relatives, then the probate court will look for more distant relatives in degree of kinship. Like Virginia, only if there are no blood relatives will the DC government will take your property.

Maryland

In Maryland, if you are survived by a spouse and at least one child under the age of 18, your spouse will receive only one-half of your probate assets. Your child, or children, will receive the other half. If one of your children pre-deceases you, then the deceased child’s share will pass on to the deceased child’s children.

If you are married and all of your children are over the age of 18, your spouse will receive the first $15,000 of your probate assets, plus one-half of your remaining probate assets. The remaining half will pass to your children or your parents (if you have no descendants).

Your spouse will receive your entire estate only if you have no descendants or parents who survive you. If you have no surviving spouse, no descendants, and no surviving blood relatives, then your assets go to the government, specifically the county board of education.

A Will is NOT enough if you want to avoid probate (and trust us, you do!)

Do you really want the state to decide where everything you’ve worked your entire life to accumulate goes? Probably not. This is why although it’s better than nothing, it is generally unwise to use a last will and testament to distribute your estate at death. Instead, you should almost always use a living trust to avoid after-death probate, in the same way that almost everyone uses a general power of attorney to avoid lifetime probate. When you use a last will and testament instead of a living trust, your financial affairs – and the financial affairs of your beneficiaries –become known to the public and will have to go through the nightmare of probate.

Probate is the legal process that happens after a person (the “decedent“) dies, regardless of whether the person died with a valid will or without a valid will. If a decedent dies with a will, then their property is distributed according to the will. Probate isn’t always required after someone dies; it depends on what assets the decedent owned and exactly how they were titled. When probate is required, it is a nightmare because:

1. It requires frustrating intrusion by the court, lawyers, and the public into a very emotional, private, family time.

2. All of your affairs will become public knowledge. The contents of your last will and testament go on file in the courthouse, for all to read, including salesmen, newspaper reporters, scammers, con artists, and curious people who take advantage of the publicity required by the probate process.

3. Probate takes time. Probate laws in each state mandate a minimum time after your death during which your assets may not be distributed, to allow creditors time to petition the court for payment. Any assets distributed before that time come with a heavy cost for your executor — he or she may be personally liable for the repayment of all of this amount. Thus, your executor will likely be very hesitant to distribute before all debts and taxes are paid. The court, not your family, will supervise and authorize the settling of all debts and the payment of inheritances, in its time and with its inevitable delays.

4. Probate is expensive. On a national average the probate process takes from 5-8% of your family estate out of the hands of your beneficiaries and gives it to the courts and other outside individuals. Planning with a living trust can save the average American family about $30,000 in probate fees, attorney fees, and court costs alone, according to a national study by AARP.

A living trust combined with a power of attorney provides the most complete protection available.

For details on Virginia Probate, click here.

For details on Maryland Probate, click here.

For details on DC Probate, click here.

Here at the Farr Law Firm, attorney Sara Entis is a Virginia probate attorney, DC probate attorney, and Maryland probate attorney.

A proper Estate plan, using a living trust and kept up to date, helps minimize delays and costs and can provide for the prompt appointment of trustees, payment of expenses and taxes, and settlement of claims.

The best way to avoid probate is to consult with an experienced estate planning attorney such as all of our attorneys here at the Farr Law Firm, and to implement a fully funded Revocable Living Trust or a Living Trust Plus Asset Protection Trust, depending on your situation. Call us to make your appointment for a no-cost initial consultation:

Fairfax Probate and Estate Planning: 703-691-1888
Fredericksburg Probate and Estate Planning: 540-479-1435
Rockville Probate and Estate Planning: 301-519-8041
DC Probate and Estate Planning: 202-587-2797

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