How is an Intestate Estate Distributed in Virginia?

Full question:

My husband recently passed away, my question is this. Him and his brother were owners of a piece of property in Virginia. The deed reads 1 half to each and it says nothing about suriviors. Does his part fall to me or does it fall back to his brother and also would his daughter have any claim in it. She is my stepdaughter.

• Category: Wills and Estates
• Subcategory: Intestacy
• Date: 04/07/2025
• State: Virginia

Answer:

When a person dies, their assets are distributed in the probate process. If a person dies without a valid will, an administrator is named to handle the distribution of the estate after a petition to probate the estate is filed with the court in the county where the deceased resided. The court will issue letters testamentary of letters of administration, giving the administrator authority to collect the assets and pay the debts of the decedent.

In cases where the decedent didn't own property valued at more than a certain amount, which varies by state, the estate may go through a small estate administration process, rather than the formal probate process. The amount is $50,000 in Virginia to collect property by affidavit. To dispose of the real property interests of the decedent, the executor or administrator executes an executor's deed or fiduciary deed. For example, if a person who is a joint tenant dies without a will, the administrator of the estate can execute a fiduciary deed transferring their interest to the remaining joint tenants, or other person entitled to receive the interest under intestacy laws of the state.

An intestate estate is any part of the estate of a decedent not effectively disposed of by his will, which passes to his heirs as prescribed in the applicable state's laws of intestate succession. The estate of a decedent who dies intestate is distributed according to the intestacy laws where the decedent was domiciled and/or where the decedent owned real property. Under the intestate laws of succession, the spouse and heirs will receive property by the laws of descent and distribution and marital rights in the estate which may apply to a surviving spouse. Each state has an intestacy law which specifies who is to inherit property in the absence of a will. If a person dies without a will, the probate court will appoint a personal representative (or administrator) for his or her estate to receive creditors' claims against the estate, pay debts, and distribute the deceased person’s remaining property according to state laws. Certain assets are not included as part of a person's estate and may pass outside of probate, such as trust assets and transfer on death accounts or property owned by joint tenants which passes under a right of survivorship when one tenant dies.

Joint tenancy is a form of ownership by two or more individuals together. It differs from other types of co-ownership in that the surviving joint tenant immediately becomes the owner of the whole property upon the death of the other joint tenant. State law, which varies by state, controls the creation of a joint tenancy in both real and personal property. Joint tenancy property passes outside of probate, however, it may be severed so that the property becomes part of one person's estate and passes to that person's heirs. A joint tenancy between a husband and wife is sometimes known as a tenancy by the entirety. Tenancy by the entirety has some characteristics different than other joint tenancies, such as the inability of one joint tenant to sever the ownership and differences in tax treatment. In some jurisdictions, to create a tenancy by the entirety the parties must specify in the deed that the property is being conveyed to the couple "as tenants by the entirety," while in others, a conveyance to a married couple is presumed to create a tenancy by the entirety unless the deed specifies otherwise. Each joint tenant has an equal, undivided interest in the whole property. All joint tenants, and their spouses, must sign deeds and contracts to transfer or sell real estate. A joint tenant may convey his or her interest to a third party, depending on applicable state law. This conversion would in effect terminate the joint tenancy and create a tenancy in common.

Tenants in common hold title to real or personal property so that each has an "undivided interest" in the property and all have an equal right to use the property. Tenants in common each own a portion of the property, which may be unequal, but have the right to possess the entire property. There is no "right of survivorship" if one of the tenants in common dies, and each interest may be separately sold, mortgaged or willed to another. A tenancy in common interest is distinguished from a joint tenancy interest, which passes automatically to the survivor. Upon the death of a tenant in common there must be a court supervised administration of the estate of the deceased to transfer the interest in the tenancy in common.

In the case of a life tenant who holds a life estate, when the life tenant dies, their interest may pass to the remaindermen. Title may also return to the person giving or deeding the property or to his/her surviving children or descendants upon the death of the life tenant--this is called "reversion."

The answer will depend on whether the estate has been probated and the nature of the title, such as whether the property was owned a joint tenants or tenants in common, and whether anyone else has a claim on the property. I suggest you contact a local attorney who can review all the facts and documents involved.

Please see the following VA statute:

§ 64.1-1. Course of descents generally. —

When any person having title to any real estate of inheritance shall
die intestate as to such estate, it shall descend and pass in parcenary
to such of his kindred, male and female, in the following course:

First. To the surviving spouse of the intestate, unless the intestate
is survived by children or their descendants, one or more of whom are not
children or their descendants of the surviving spouse, in which case
two-thirds of such estate shall pass to all the intestate's children and
their descendants and the remaining one-third of such estate shall pass
to the intestate's surviving spouse.

Second. If there be no surviving spouse, then the whole shall go to all
the intestate's children and their descendants.

Third. If there be none such, then to his or her father and mother or
the survivor.

Fourth. If there be none such, then to his or her brothers and
sisters, and their descendants.

Fifth. If there be none such, then one moiety shall go to the
paternal, the other to the maternal kindred, of the intestate, in the
following course:

Sixth. First to the grandfather and grandmother or the survivor.

Seventh. If there be none, then to the uncles and aunts, and their
descendants.

Eighth. If there be none such, then to the great grandfathers or great
grandfather, and great grandmothers or great grandmother.

Ninth. If there be none, then to the brothers and sisters of the
grandfathers and grandmothers, and their descendants.

Tenth. And so on, in other cases, without end, passing to the nearest
lineal ancestors, and the descendants of such ancestors.

Eleventh. If there be no paternal kindred the whole shall go to the
maternal kindred; and if there be no maternal kindred, the whole shall go
to the paternal kindred. If there be neither maternal nor paternal
kindred, the whole shall go to the kindred of the husband or wife, in the
like course as if such husband or wife had died entitled to the estate.