What Happens When a Parent Dies Without a Will in Virginia With Children From Another Marriage?

Full question:

I live in Virginia. My father died 11 years ago without a will. The only asset he had was a house. He purchased the house in 1958, together with my mother. During the 80's my mom was having serious health issue, and they were afraid that creditors might come after the house for medical bills. They removed my mom's name from the house deed. My father passed away first, in 2001. My mom passed away just recently. After my mother passing, I found out that my father was divorced, and that he had two children from his first marriage, both are now in their 60s. My half brother and half sister, whom I never met, are suing my full brother and I for the this house. He is saying that they are entitled to 2/3 of this house, and that my brother and I are only entitled to 1/3. But this house was bought during my parents 50 years marriage, and was purchased with both their money, as my mother had been working, and she was not a stay at home mom. I don't know why she did not take care of this issue during her lifetime, after my father's passing, but one main reason was that she was confined to a bed for a long time, and unable to go to court, get things done etc. What are my brother and I rights? My brother is the person that resides in the home now, and has done so all his life as he is mentally disabled. I need to know what to do, to insure he does not end up kicked out of the only home he ever knew.

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

Answer:

The following Virginia law applies when a person without a will dies as a resident of Virgina. 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.

According to VA intestacy laws, a surviving spouse, your mother, would inherit all of the husband's estate unless children with a previous spouse exist. When children not of the surviving spouse exist, they get 2/3 of the estate and the surviving spouse gets 1/3. If your mother also died without a will, then her estate would go to her children, since she had no surviving spouse. 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.

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.