Heir Rights (VA)
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As an heir, you likely have questions about the inheritance process in VA, and your rights.
Overall, if you are entitled to receive an inheritance, you have the right to expect to receive that inheritance ... eventually. While some states attempt to put deadlines on estate settlements, an average estate takes 16 months to settle, and some take years (see Inheritance Timing).
Rights Under VA Probate
Most estates are settled by an executor appointed by the court (often a family member), under a court-supervised process known as probate. The executor has significant discretionary power, but he or she has a fiduciary duty to act in the best interests of the estate, to follow the law, and to distribute estate proceeds to the rightful heirs.
However, VA estates must satisfy obligations according to priority (for example, debts take precedence over distributions), so in some cases your inheritance will be less than expected, or even be completely consumed by other estate priorities (which must generally affect all potential heirs proportionately). See Estate Expenses, Fees, and Taxes for more information, and note that for your protection, estate executors must document all estate transactions and make these records available to the courts ... and in some states, must proactively deliver these records in a Final Accounting to the heirs as well.
Your rights as an heir include:
- Notice: Many states have laws that require an estate executor to notify you of the death and the estate proceeding if you are mentioned in the will, if there is no will and you are entitled to inherit by intestate succession, or even if there is a will that doesn't mention you, but you would have been entitled to inherit by intestate succession (i.e., you are an "heir-at-law").
- Estate Information: Many states require the executor to provide you a copy of the estate inventory, as well as a Final Accounting (what happened to the inventory, what estate expenses were incurred, etc.). If the estate is undergoing probate, and the state does not require that the executor directly supply you the information, you can simply make a public records request for the reports filed with the court.
- VA Family Entitlements: If you are a surviving spouse or dependent child, you likely have additional rights that go beyond anything mentioned in the will or mandated by the laws of intestate succession. Surviving family members often have the right to remain living in the family home for a certain period of time, to automatically receive certain personal possessions, to receive a living allowance from the estate while it is being settled, and to receive certain minimum amounts (see VA Family Entitlement details for your state).
- Reasonable Timeframe: Unless the asset is one that automatically transfers on death (such as an IRA with a named beneficiary), you can expect the process to take 12-18 months on average, and sometimes considerably longer (see Inheritance Timing). An executor has a duty to settle an estate in a reasonable timeframe, but most states are very lenient about such timeframes, and there are legitimate reasons that some estates take years to settle. On the other hand, some executor simply cannot handle the task, or unreasonably delay, and those can be grounds to ask the court to remove the executor and appoint someone else.
- Court Objections: If the estate undergoes probate (and most do), you have the right to object to the probate court about anything you think is being done incorrectly or improperly. You can object to the appointment of a particular executor, you can object to the validity of a will, you can object to particular distributions (not just your own), you can object to sales of assets, you can object to how long things are taking ... in fact, you can object to almost anything. You just need to make sure you have valid grounds for doing so, and it's important to realize that settling an estate is a difficult task that takes time. See Court to find your particular court.
- Lawsuits: If the probate judge does not respond to your objection as desired, or if there is no probate proceeding, then you can file a civil lawsuit against the estate. Such lawsuits can be expensive, and should be considered only as a last resort.
Additional considerations:
- Expectations: Please keep in mind that although a will may be specific about an intended inheritance, other factors can sometimes intervene to modify or even entirely invalidate the inheritance. See VA Rules of Inheritance for details.
- Inheritance Taxes: Some states have inheritance taxes for which the executor has the responsibility of paying, out of your share, before giving you your remaining inheritance. If your executor is using EstateExec, it will tell him or her if such taxes apply.
- Executor Discretion: Unless the inheritance is a specific bequest, the executor may have some discretion in deciding how to give you your share of an estate. The executor may decide to liquidate assets and give you all cash (and cash equivalents), or the executor may mix and match assets to equal your share. You have to the right to ask for your share to be given in a certain form, but the executor does not have to respect your wishes. For this reason (and others), it is advisable to try to retain a good relationship with the executor (see Working with Executors).
- Inheritance Receipts: When you receive an inheritance, the executor will likely ask you to sign a receipt, which can be required. However, the executor will often ask you, as a condition of receiving the proceeds, to waive any rights you may to decide to sue the estate or the executor in the future. Such waivers are best practice for an executor, but heirs are not required to waive their rights, so the decision is up to you. It may be best to sign anyway, to preserve the relationship and to receive your inheritance in a timely manner, but your ultimate recourse is to either convince the executor to drop the waiver, or object to the court.
VA Small Estate Rights
Most states have laws enabling small estates to be settled without full probate, sometimes without any court involvement at all. In such cases, there may be no formally appointed executor, and the heir can directly collect any inheritance to which he or she is entitled, by providing appropriate documentation to the current asset holders.
In Virginia, probate is not required for "small" estates, and there are several alternatives available. Regardless of estate size, probate is also not required if an estate contains only assets exempt from probate.
Personal Property
In VA, you can bypass probate if the personal property is worth <$50,000.
Estate Valuation
When determining whether a VA estate qualifies as "small", you should value assets as of the date of death, and ignore any debts.
Do not include assets that would not normally go through probate, such as community property with right of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
Small Estate Affidavit
You can skip probate and handle things yourself if:
- The personal property in the estate (i.e., everything except real estate) is worth <$50,000
- At least 60 days have passed since the death
- There is no application for personal representative pending or granted
- The will (if any) has been filed with the court
If the estate meets the above criteria, you can
- Prepare a small estate affidavit
- Everyone entitled to receive an inheritance must sign the affidavit in front of a notary
- Use the notarized affidavit to obtain possession of estate assets from their current custodians
- Settle the estate in the normal manner (pay all debts, distribute assets)
If everything goes smoothly with this process, you will not need any court involvement at all (other than filing the will if one exists, and paying taxes).
See VA Code § 64.2-601.
Small Assets Without Affidavit
You may be able to collect individual assets worth up to $25,000 without even bothering to create a small estate affidavit as described above.
Current custodians of such estate assets are allowed to give them to you as long 60 days have passed since the death, and no application for a personal representative is pending or has been made.
Note that under this approach, current asset custodians are allowed to give you assets, but are not required to do so. If you run into difficulty, you may have to use the small estate affidavit approach instead, or even full probate.
If you do collect estate assets this way, you then have responsibility for settling the estate in the normal manner (pay all debts, distribute assets).
See VA Code § 64.2-602.
Real Property
If the estate contains only real property (i.e., real estate), you may be able to avoid probate regardless of overall estate value.
When a Will Exists
If there is a valid will, you may be able to file the will with the court to record that fact that title of the real estate should pass to the new owner, without requiring a personal representative to be officially appointed and going through full probate.
Without a Will
If the decedent died without a will, any interested person may file an Real Estate Affidavit (Form CC-1612) with the court describing the real estate, acknowledging there is no will, and providing the names and addresses of the heirs-at-law. The court will then indicate to the local Commissioner of Revenue that the property may be transferred to the inheritors.
If the real estate needs to be sold, or if there are estate creditors that will not otherwise be satisfied, you will have to go through probate.
See VA Code § 64.2-510.
Vehicles
Regardless of the size of the estate, if no personal representative has been appointed or has an application pending, then inheritors may go directly to the DMV and apply to have the title of any motor vehicle transferred. Use Form VSA-24.
You can take similar action for watercraft registered with the US Coast Guard: see VA Code § 64.2-606.
Estate Settlement Considerations
Before paying any debts or making any distributions, be sure to account for any Family Entitlements in VA, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
Even if the estate does not go through probate, you may still be entitled to Executor Compensation in VA, and this compensation also has priority over most estate debts.
Estate debts have priority over most distributions in turn, so before distributing assets you should resolve any estate debts. If the estate makes any distributions beyond amounts set aside for family entitlements, unpaid creditors have the right to sue the recipients for repayment using those excess distributions. Consequently, even if the settlement process does not require you to publish a Notice to Creditors, you may want to follow VA probate rules for finding estate debts, since doing so may limit the time creditors have to pursue repayment.
If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.
See also Making Distributions.
Intestate Inheritance
If the decedent died without a will, he or she is considered to have died "intestate", and thus the course of descents will determine who should inherit the estate: the "heirs-at-law" (surviving spouse, children, parents, siblings, etc.). See VA Code § 64.2-200 for details.
Court
In Virginia, the local Circuit Court handles wills and estate probate, If you are using EstateExec and you enter the decedent's county of legal residence on the Decedent tab, you will see a direct link to the appropriate court here.
The only court involvement required for small VA estates is to file the will, if one exists. You must also file an estate valuation with the court so that taxes can be determined if the estate is worth >$15,000: use Form CC-1651.
Estate Debts
Finally, note that as an heir, you are NOT responsible for paying the debts of the VA estate out of your own funds. You do NOT inherit responsibility for paying the debts of parents, for example. If the estate is insolvent (i.e., cannot pay all its bills), then creditors simply end up with less than owed, or even nothing ... as do you.
If an estate ends up being insolvent, and you somehow received a distribution anyway (perhaps through a small estate process), some states allow creditors to sue you to reclaim any amounts they are still owed. So you can't inherit a debt outright, but if you receive a distribution that the estate needed to pay its bills, you may be forced to pay out some or all of that distribution.
Additional Information
For more information about inheritances in general, see EstateExec Heir Guide.
In case you're interested, heir rights in other states can be found here:
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