Dying Intestate

Dying Intestate

When a person dies without a will or with an invalid will it is considered dying intestate.

Dying intestate means that a person never made a will or they tried to but it was invalid. In cases of intestacy, default rules in Virginia law determine how property is distributed and who takes care of that. Even if you do not have a preference about these matters, dying without a valid will means that you will have less money to pass to your heirs and they will have more stress and difficulty with administering your estate.

To begin with, a last will and testament is the only way a Virginia resident can waive an insurance requirement for his executor. The amount of insurance (called a surety bond) varies with the amount of property owned at death, but is at least a few hundred dollars. In addition, a will allows for tangible personal property (things) to pass easily from one person to another and modern wills have directions for personal property that can be updated even after the will is written. This means that with properly written estate planning documents a person can change her mind about tangible property without having to re-write her will.

Why avoid dying intestate?

One of the most important reasons to avoid intestacy is to give an executor the power of sale over real estate. Without a will, real estate goes instantly to a person’s heirs at law at the time she dies. This means that if a person was married the real estate goes to his spouse. If there was no surviving spouse, it goes to their children. Then if there are no children, it goes to their parents. If their parents are not living it goes to their siblings. This can cause problems because often multiple owners of property cannot agree on what is to be done with it. Even if they can agree, dying without a will means that a considerable amount of money (often thousands of dollars) will be paid in taxes and fees. Many of these can be avoided with planning.

The importance of a will

No one who has children should be without a will. This is because a will is the way to name a guardian if a parent becomes incapacitated or dies. This is a way to prevent expensive and time-consuming court proceedings if a guardian for minor children ever becomes necessary. Another important consideration is what to do about finances for children if a parent dies before a child turns 18. Many people without wills wrongly believe that children will have access to money if they are names as alternate beneficiaries on life insurance policies. They will not if they are under 18. They money will be withheld and not available until they turn 18. At that time, the money will be paid over to them in a lump sum. It cannot be held longer or used only for certain purposes when someone dies without a will. So remember if you have life insurance or any property that you want to be available for school or other expenses (maybe just to help a guardian offset the cost of room and board) you have to have a will. If properly written, the provisions about minors will simply fade away when those persons reach a specified age.

When is the right time to create a will?

There has never been a better time to create or update a will. Recent changes in federal tax laws and Virginia’s laws about wills and trusts mean that a properly written will can be used to provide for beneficiaries with little or no taxes and fees. Best of all, a will can be used as a roadmap to alert you to future planning opportunities that will save you lots of time and save your estate lots of money. Taking some straightforward steps during life to means that the people you care about will have less stress and fewer worries. That’s a legacy to be proud of.

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