Virginia Probate – When the Decedent Does not Leave a Will

Northern Virginia Probate Lawyer

Living with the grief from the death of a loved one can be painful. In addition to making arrangements for a funeral or memorial service, family members often must also prepare for probate, which can be a daunting task.

“Probate” is the term used generally to refer to the entire process of administering an estate. An estate must be probated when the decedent has solely-held assets that do not have a joint or co-owner with rights of survivorship, a beneficiary (not in a will but actually on the account or security), or a payable-on-death designee. Assets include real property and personal property. Personal property includes bank accounts, stocks and bonds, retirement accounts, life insurance policies and other types of securities, as well as personal belongings and vehicles.

If the decedent died with a valid will, then he or she died testate, and the Circuit Court with jurisdiction over the estate ensures that the executor distributes the assets of the estate according to the directives in the will. But, even with a will, legal challenges may still arise.

If you are involved in a stressful or complicated probate proceeding in Northern Virginia, we can help. At Surovell Isaacs & Levy PLC, our attorneys have assisted many clients through the probate process.

Virginia Probate – When the Decedent Does Not Leave a Will

If the decedent died without a valid will, then he or she died intestate. If a person dies intestate with assets that must be probated, an administrator of the estate must be appointed. Section 64.2-502 of the Code of Virginia determines the order of preference when appointing an administrator.

Qualifying as an administrator does not automatically make one a beneficiary of the decedent’s estate. The beneficiaries in an intestate estate are the legal heirs at law. Heirs at law are set forth by statute. Generally, after payment of any debts and claims against the estate, the remaining assets of an intestate estate pass as follows:

  • The entire remaining estate passes to the decedent’s surviving spouse;
  • If the decedent had any children (by birth or adoption) with someone other than his or her surviving spouse, then one-third of the estate will pass to the surviving spouse and the remaining two-thirds will be divided among all of the decedent’s children;
  • If no surviving spouse exists, the remaining estate passes to the decedent’s children and their children and grandchildren; and
  • If there is no surviving spouse or children, grandchildren, etc., then Virginia law provides for further contingencies.

Many issues can arise when dealing with the administration of a loved one’s intestate estate. Perhaps there is an argument over who should be appointed as administrator, or an appointed administrator fails to account for a child of the deceased and he or she does not receive his or her share of the estate. Potential heirs can file inheritance claims in Court asserting their rights to inherit some or all of the estate.

Challenging the Validity of Wills in Virginia Probate Courts

Wills are essential tools that allow people to direct the disbursement of their property. Unfortunately, some wills are created under circumstances which can make them invalid. In order to contest the validity of a will, you must be an “interested person.” The Code of Virginia defines an interested person as someone who:

  • Is entitled to receive a portion of the estate as indicated in a will; or
  • Has a right to a portion of the estate under Virginia’s intestate laws that govern the distribution of assets when a person dies without a will.

In Virginia, an interested person can challenge a will based on several different legal grounds, such as, if the decedent:

  • Was mentally incapacitated when he or she created the will;
  • Did not execute the will according to the formalities required by Virginia law;
  • Was unduly influenced by another when creating the will;
  • Made the will under duress; or
  • Was tricked into making the will through the fraudulent acts of another.

In addition, Virginia residents cannot completely exclude a spouse from inheriting their estates. Surviving spouses can make a claim for what is called an “elective share.” The amount of a spouse’s elective share is determined based on factors laid out in the Code of Virginia.

The Northern Virginia probate attorneys at Surovell Isaacs & Levy PLC can help you determine whether or not you are an interested party. We can also advise you as to the potential validity of a will or on the viability of a claim for invalidating a will.

Our Lawyers are Skilled Probate Litigators

When negotiations do not achieve desired outcomes, probate litigation can become necessary. The probate litigation attorneys at Surovell Isaacs & Levy PLC are seasoned litigators. We have the trial experience needed to advocate persuasively on behalf of our clients. We have skillfully represented clients in regard to many types of probate issues including, but not limited to:

  • Initiating administrative or probate proceedings;
  • Challenging the actions taken by estate representatives;
  • Bringing suits against estate representatives for failure to provide adequate accounting;
  • Challenging the disbursement of funds when a person dies intestate; and
  • Challenging the validity of wills.

At Surovell Isaacs & Levy PLC, We Help Our Clients Throughout the Probate Process

Making your way through the probate process after a loved one’s death can be stressful and overwhelming. That is why our full-service law firm offers our clients assistance throughout the entire probate process. Whether you need help in filing the will with the proper Circuit Court and managing the probate requirements, or contesting a will, filing a claim against an estate representative, or engaging in probate litigation, we can help.  Contact our Fairfax, Virginia, law office to set up an initial consultation.


Posted in: Estate planning/Trusts