The High Stakes of Inaction: What Happens Without a Plan in Virginia?

Failing to create a legally valid estate plan in Virginia means you forfeit your right to decide who inherits your property and who manages your affairs. Instead, the Commonwealth of Virginia imposes its own rigid plan, a one-size-fits-all solution that rarely aligns with a person’s true intentions and can create significant hardship for surviving family members.

The most common question I hear from new clients is, “What really happens if I do nothing?” The answer is sobering. When a Virginia resident dies without a will, they are considered “intestate.” The distribution of their assets is then dictated by the laws of intestate succession, as outlined in the Code of Virginia § 64.2-200 et seq. These laws are unforgiving and do not account for modern family structures, personal relationships, or specific wishes.

Consider these common outcomes under Virginia’s intestacy laws:

• If you are married with no children: Your surviving spouse inherits your entire estate. This may seem straightforward, but what if you wished to leave a portion to a sibling, a parent, or a charity? The law makes no provision for this.
• If you are married with children (all of whom are also your spouse’s children): Again, your surviving spouse inherits the entire estate. The assumption is they will provide for the children, but this is not legally mandated.
• If you are married with children, at least one of whom is from a previous relationship: This is where it becomes particularly problematic. Your surviving spouse inherits one-third of your estate, and your children (from all relationships) divide the remaining two-thirds. This can create immediate financial strain on a surviving spouse and can lead to conflict between the spouse and children.
• If you are unmarried with children: Your children inherit your entire estate, in equal shares.
• If you have no spouse or children: Your estate passes to your parents, and if they are not living, to your siblings, and so on down a prescribed line of succession. A close, lifelong friend or unmarried partner receives nothing.

Beyond asset distribution, dying intestate guarantees your estate will go through the full, public probate process. The court, specifically the Alexandria Circuit Court, will have to appoint an Administrator to manage your estate. This person may not be who you would have chosen. The entire process—from inventorying assets to paying debts and distributing what’s left—is public record, stripping your family of privacy during a difficult time. The consequences are not just financial; they are emotional, procedural, and deeply personal.

The Virginia Estate Planning & Administration Process

The legal process for estate matters in Virginia involves two primary phases: the proactive creation of an estate plan and the reactive administration of an estate after death. Both processes are governed by state law and involve specific courts and officials, primarily the Alexandria Circuit Court and the Commissioner of Accounts for local matters.

Navigating these processes requires a clear understanding of the roles and steps involved. In my practice, I guide clients through both, ensuring clarity and compliance at every stage.

Phase 1: Proactively Creating Your Estate Plan

This is the foundational phase where you work with a knowledgeable attorney to build a plan that reflects your goals. It is a collaborative process.

1. Initial Assessment: The process begins with a detailed conversation about your family, your assets (real estate, investments, business interests, digital assets), and your objectives. Who do you want to provide for? How do you want to protect them? Do you have charitable goals?
2. Strategy and Document Selection: Based on the assessment, we determine the best tools for your situation. This isn’t about filling in templates; it’s about strategic selection. For many, a core plan includes:
   • Last Will and Testament: The cornerstone document that names an Executor to manage your estate, designates guardians for minor children, and directs the distribution of assets owned in your individual name. This is governed by Va. Code § 64.2-400 et seq.
   • Revocable Living Trust: A powerful tool for avoiding probate. Assets are transferred into the trust during your lifetime, managed by you as Trustee, and then seamlessly passed to your chosen Successor Trustee for distribution upon your death, according to your private instructions. This falls under Virginia’s Uniform Trust Code (Va. Code § 64.2-700 et seq.).
   • Durable Power of Attorney: This document allows you to appoint an “agent” to manage your financial and legal affairs if you become incapacitated. Without it, your family may need to pursue a costly and public guardianship proceeding. This is governed by the Uniform Power of Attorney Act (Va. Code § 64.2-2000 et seq.).
   • Advance Medical Directive (Living Will): As authorized by the Virginia Health Care Decisions Act (Va. Code § 64.2-1600 et seq.), this document outlines your wishes for end-of-life medical care and appoints a healthcare agent to make decisions on your behalf if you cannot.
3. Drafting and Review: Your attorney drafts the documents with precise legal language. You then have the opportunity to review them thoroughly, ask questions, and request revisions to ensure they perfectly capture your intent.
4. Formal Execution: This is a critical legal ceremony. Virginia has strict requirements for signing and witnessing wills and other documents. A mistake here can invalidate the entire plan.

Phase 2: Estate Administration (Probate and Trust Administration)

After a person passes away, their estate must be legally settled. The path this takes depends on the planning they did.

If the estate requires probate (typically when assets are held only in the deceased’s name and are not transferred by a trust or beneficiary designation), the process in Alexandria generally follows these steps:

1. Qualification: The person named as Executor in the will presents the will to the Clerk of the Alexandria Circuit Court. If there is no will, an interested party petitions to be appointed as Administrator.
2. Oversight by the Commissioner of Accounts: Once qualified, the Executor/Administrator is under the supervision of the Commissioner of Accounts for the City of Alexandria. This is a lawyer appointed by the Circuit Court to oversee the proper administration of estates.
3. Marshalling Assets and Inventory: The Executor must identify, locate, and value all probate assets. A detailed inventory must be filed with the Commissioner of Accounts within four months of qualification.
4. Paying Debts and Taxes: The Executor pays the decedent’s final bills, taxes, and administration expenses from the estate’s assets.
5. Accounting and Distribution: The Executor must file a formal accounting with the Commissioner of Accounts, showing all money that came in and went out of the estate. Once the accounting is approved and all obligations are met, the remaining assets are distributed to the beneficiaries as directed by the will (or by state law if intestate).

If the estate was planned using a trust, the process is typically private and more efficient. The Successor Trustee takes control of the trust assets without court intervention. Their duties are similar—pay debts, manage assets, and distribute them to beneficiaries—but they do so according to the private terms of the trust document, without the direct oversight of the court or the Commissioner of Accounts. This is a primary reason many Alexandria residents choose trust-based planning.

The SRIS Virginia Estate Planning Foundation Checklist Tool

To build a strong house, you need a solid foundation. The same is true for your estate plan. This checklist is a practical tool I’ve developed over years of practice to help my clients organize their thoughts and information before our formal process begins, ensuring nothing is overlooked.

Use this guide to gather the necessary information and make preliminary decisions. This preparation makes the legal drafting process more efficient and ensures your final plan is truly comprehensive.

Step 1: Inventory Your Assets & Liabilities

Create a detailed list. The more thorough you are, the better.

• Real Estate: List all properties you own, including your primary residence, vacation homes, and rental properties. Note how the title is held (e.g., individual name, joint tenants with right of survivorship).
• Financial Accounts: Bank accounts (checking, savings), brokerage accounts, mutual funds, stocks, and bonds. Note the institution and account numbers.
• Retirement Accounts: 401(k)s, IRAs, pensions, etc. Critically, review and list the current beneficiary designations for each. These designations often override a will.
• Life Insurance: List all policies, their death benefits, and the named beneficiaries.
• Business Interests: If you own a business, detail your ownership percentage and have copies of any partnership or operating agreements.
• Personal Property: Note any particularly valuable items like art, jewelry, collectibles, or vehicles.
• Digital Assets: List important online accounts, social media profiles, and digital currencies. Include information on how they can be accessed.
• Liabilities: List all debts, including mortgages, car loans, credit card debt, and personal loans.

Step 2: Choose Your Fiduciaries

A fiduciary is a person or institution you entrust with legal and ethical responsibility. This is one of the most important decisions you will make.

• Executor (for your Will): Who will be in charge of carrying out your will’s instructions and navigating the probate process? Choose someone organized, trustworthy, and able to handle administrative tasks. Name at least one alternate.
• Trustee (for your Trust): If you create a trust, who will manage it after you? This could be the same person as your Executor, or it could be a different person or a corporate trustee (like a bank’s trust department). Name at least one successor.
• Guardian (for Minor Children): If you have children under 18, who do you want to raise them? This is a deeply personal choice. Name an alternate.
• Agent for Financial Power of Attorney: Who do you trust to manage your finances if you are unable to? This person will have significant power, so choose wisely.
• Agent for Advance Medical Directive: Who do you trust to make healthcare decisions for you based on your stated wishes? This person should be calm under pressure and able to advocate for you.

Step 3: Define Your Distribution Plan

Think about the “who, what, and when” of your legacy.

• Primary Beneficiaries: Who should receive the bulk of your estate? Your spouse, children, etc.
• Specific Bequests: Is there a specific item (like a piece of jewelry) or a specific sum of money you want to go to a particular person or charity?
• Contingent Beneficiaries: If one of your primary beneficiaries predeceases you, who should receive their share? Their children? Another beneficiary?
• Distribution Timing: Should your beneficiaries receive their inheritance outright? Or should it be held in a trust for them until they reach a certain age or milestone (e.g., college graduation)? This is especially important for young beneficiaries.

Step 4: Document Your Healthcare Wishes

Consider your values regarding end-of-life care.

• Do you wish to receive life-prolonging procedures if you are in a terminal, irreversible condition?
• What are your wishes regarding pain management?
• Do you have any specific religious or personal beliefs that should be considered?

Advanced Legal Strategies for Comprehensive Estate Planning

A basic will is often insufficient for residents of a high-value area like Alexandria. Seasoned legal counsel involves employing sophisticated strategies to achieve specific goals like probate avoidance, tax minimization, asset protection, and providing for beneficiaries with special needs.

After practicing in this field for over twenty years, I’ve found that the most effective estate plans are not just reactive documents but proactive strategies. Here are some of the approaches we often discuss with clients at Law Offices Of SRIS, P.C. to create a truly robust plan.

Strategy 1: Probate Avoidance Through Trust-Based Planning

The primary tool for avoiding probate in Virginia is the Revocable Living Trust. By titling your major assets (your home, investment accounts) in the name of your trust, you technically no longer own them as an individual. You control them as the trustee during your lifetime, but upon your death, they are not part of your “probate estate.” Your chosen successor trustee can then manage and distribute these assets privately and efficiently, according to the detailed instructions you’ve left in the trust document. This saves time, reduces administrative costs, and, crucially, keeps your family’s financial affairs out of the public record of the Alexandria Circuit Court.

Strategy 2: Planning for Blended Families

Second marriages with children from prior relationships present a classic estate planning challenge. A common goal is to provide for the surviving spouse for the remainder of their life while ensuring that the remaining assets ultimately pass to the children of the first spouse to die. A simple will often fails at this. A more effective strategy is to use a specific type of trust, often a Qualified Terminable Interest Property (QTIP) trust or a simple bypass trust. This allows the surviving spouse to benefit from the trust’s income and/or principal during their lifetime, but upon their death, the trust assets are distributed to the beneficiaries you named (e.g., your children), not to the surviving spouse’s heirs.

Strategy 3: Asset Protection for Beneficiaries

What if you are concerned about a beneficiary’s ability to manage money, their potential for divorce, or their exposure to creditors or lawsuits? Leaving an inheritance outright in their name exposes it to all these risks. A better strategy is to leave their inheritance in a “spendthrift trust.” The assets are held and managed by a trustee on the beneficiary’s behalf. The trust terms can dictate how funds are distributed (e.g., for health, education, and support). Because the beneficiary doesn’t directly own or control the assets, they are generally protected from the beneficiary’s creditors and are not considered marital property in a divorce.

Strategy 4: Planning for Incapacity

A comprehensive plan isn’t just about what happens after you die; it’s about protecting you while you’re alive. A critical mistake I see is focusing only on the will and ignoring the possibility of mental or physical incapacity due to illness or injury. A robust plan must include a Durable Power of Attorney and an Advance Medical Directive. These documents, established under Virginia law, ensure that people you choose and trust are legally authorized to make financial and healthcare decisions for you. This avoids the need for your family to go to court to establish a costly and intrusive guardianship and conservatorship over you.

Common and Costly Mistakes to Avoid in Estate Planning

In my years of practice, I’ve seen how small oversights can unravel a person’s best intentions. Avoiding these common mistakes is as crucial as drafting the documents themselves, ensuring your plan works as intended when it’s needed most.

A well-drafted plan can be rendered ineffective by a simple error in execution or follow-through. Here are the most frequent and damaging mistakes I counsel my Alexandria clients to avoid.

1. Using DIY or Online “Will Kits” for Complex Situations. While a simple online will might seem like a cost-saving measure, it’s often a case of being “penny wise and pound foolish.” These generic templates cannot provide legal advice or account for the specifics of Virginia law, your unique family dynamics, or your specific assets. I have seen many DIY wills that were improperly signed and witnessed, making them invalid, or that created ambiguities that led to costly court battles among heirs.
2. Failing to Fund Your Revocable Living Trust. This is perhaps the most common critical error. You can have a perfectly drafted trust, but if you don’t legally transfer your assets into it (a process called “funding”), the trust is an empty vessel. Assets not titled in the name of the trust will still have to go through probate, defeating one of the primary purposes of creating the trust in the first place.
3. Neglecting Beneficiary Designations. Many assets pass outside of your will or trust, directly to a named beneficiary. These include retirement accounts (IRAs, 401(k)s) and life insurance policies. A huge mistake is failing to update these designations after a major life event. If your ex-spouse is still named as the beneficiary on your life insurance policy, they will likely receive the proceeds, regardless of what your will says.
4. Choosing the Wrong Fiduciaries. Naming an untrustworthy, disorganized, or conflict-prone individual as your Executor, Trustee, or Agent is a recipe for disaster. It’s not always about naming your oldest child or a close friend; it’s about choosing the person with the right temperament, skills, and integrity for the specific role.
5. Failing to Plan for Digital Assets. In 2025, a significant portion of our lives exists online. Your estate plan must account for your digital assets, from social media accounts to cryptocurrency wallets to online business platforms. Virginia has laws governing access to these assets, but you must provide your Executor with an inventory and instructions for accessing or disposing of them.
6. Not Updating Your Plan. An estate plan is not a “set it and forget it” document. Life changes, laws change, and your relationships change. You should review your plan with your attorney every 3-5 years, or immediately following any major life event such as a marriage, divorce, death of a beneficiary or fiduciary, birth or adoption of a child, or a substantial change in your financial situation.

Glossary of Key Virginia Estate Planning Terms

Testator

The person who creates a will.

Intestate

The legal term for dying without a valid will. The estate is then distributed according to Virginia’s laws of intestacy.

Fiduciary

An individual or institution legally entrusted to act in the best interests of another. Examples include an Executor, Trustee, or Agent under a Power of Attorney.

Probate

The official legal process of proving a will’s validity in court, inventorying the deceased’s assets, paying their debts and taxes, and distributing the remaining assets to the beneficiaries. In Alexandria, this is handled by the Circuit Court.

Revocable Living Trust

A legal entity created to hold your assets during your lifetime. You can change it at any time. It allows your estate to avoid probate upon your death.

Durable Power of Attorney

A legal document that grants a person you choose (your “agent”) the authority to handle your financial and legal matters if you become incapacitated.

Advance Medical Directive

Also known as a living will, this document states your wishes regarding medical treatment at the end of life and appoints a healthcare agent to make decisions for you if you cannot.

Common Scenarios for Alexandria Residents

The principles of estate planning become clearer when applied to real-life situations. Here are a few common scenarios I encounter in my Alexandria practice, reflecting the questions and concerns of many local residents.

Scenario 1: “We’re a blended family. My spouse has two children, and I have one from a previous marriage. How do we ensure everyone is treated fairly?”

This is a very common and important concern. Relying on simple “I love you” wills where everything goes to the surviving spouse is risky. The surviving spouse could later change their will and disinherit the deceased spouse’s children. A strategic approach is often to use a trust. For example, a joint trust can be structured to provide for the surviving spouse for their lifetime, but upon the survivor’s death, the remaining assets are divided among all the children from both sides, according to the original couple’s wishes. This protects both the surviving spouse and the children’s inheritance.

Scenario 2: “My parents are getting older and live in Old Town. They haven’t done any planning and I’m worried. What are the most critical things they need to address?”

The two most immediate priorities for your parents are planning for potential incapacity and avoiding probate. They urgently need to execute a Durable Power of Attorney and an Advance Medical Directive. This will allow a chosen agent (perhaps you or a sibling) to manage their finances and make healthcare decisions if they are no longer able to. Without these, the family might face a lengthy and expensive guardianship proceeding. Secondly, they should explore a Revocable Living Trust to hold their primary assets, especially their home. This will ensure a smooth transition of assets without the public and often slow probate process through the Alexandria court.

Scenario 3: “I own a successful small consulting business based in Carlyle. How does my business factor into my estate plan?”

Business ownership adds a significant layer of complexity. Your estate plan must include a business succession plan. First, your operating agreement or bylaws should contain provisions for what happens upon the death or disability of an owner. Second, your personal estate planning documents, like a will or trust, need to coordinate with the business plan. You must decide: Will the business be sold? Will it be passed to a family member or key employee? Your trust can be funded with your business interests, and the trust document can provide detailed instructions for your trustee on how to manage or liquidate your share of the business. This prevents a “fire sale” and ensures the value you built is preserved for your beneficiaries.

Frequently Asked Questions (FAQ)

What is the difference between a will and a trust?

A will is a document that takes effect only after you die. It directs the distribution of your assets but must go through the court’s probate process. A revocable living trust takes effect as soon as you create and fund it. It holds your assets and allows them to be managed during your life, incapacity, and after death, typically avoiding the probate process entirely.

Do I need an attorney to create a will in Virginia?

While Virginia law does not strictly require an attorney to draft a will, it is highly recommended. The legal requirements for validity (known as “testamentary formalities”) are strict. An experienced attorney ensures the will is legally sound, unambiguous, and integrated into a comprehensive plan that achieves all your goals, which a simple template cannot do.

How much does estate planning cost?

The cost varies depending on the complexity of your assets and family situation. A simple will-based plan will cost less than a complex, trust-based plan with business succession planning. However, it is essential to view this cost as an investment. The expense of proper planning is almost always significantly less than the costs of probate, potential litigation, or the financial consequences of an inadequate plan.

What is probate and why do people want to avoid it?

Probate is the court-supervised process of administering a deceased person’s estate. People often seek to avoid it because it can be (1) Public, making all your assets and their distribution a public record; (2) Time-consuming, often taking a year or more in Virginia; and (3) Expensive, with fees for the court, executor, and potentially attorneys.

How often should I update my estate plan?

A good rule of thumb is to review your plan with an attorney every 3-5 years. You should update it immediately after any major life event, such as marriage, divorce, the birth or adoption of a child, the death of a beneficiary or fiduciary, or a significant change in your financial circumstances.

Can my will be challenged in Virginia?

Yes, a will can be challenged (contested) on grounds such as lack of testamentary capacity, undue influence, fraud, or improper execution. Working with a seasoned attorney who follows a formal signing process can significantly reduce the likelihood of a successful challenge.

What happens to my debts when I die?

Your debts do not disappear. Your estate is responsible for paying your valid debts before any assets are distributed to your beneficiaries. Your Executor or Trustee is responsible for handling this process.

Do I need an estate plan if I’m not wealthy?

Yes. Estate planning is for everyone. If you have minor children, you need a will to name their guardian. If you own a home, you need a plan to transfer it. Everyone needs to plan for potential incapacity with a power of attorney and advance directive. Planning ensures that what you do have is protected and handled according to your wishes.

What is a “pour-over” will?

A pour-over will is a specific type of will used in conjunction with a revocable living trust. It acts as a safety net, directing that any assets you owned in your individual name at death (and forgot to put in your trust) should be “poured over” into the trust. These assets will still have to go through probate, but they will ultimately be distributed according to the terms of your trust.

Does Virginia have an estate tax or inheritance tax?

As of 2025, Virginia does not have its own estate tax or inheritance tax. However, very large estates may be subject to the federal estate tax. The federal exemption amount changes, so it’s important to consult with a knowledgeable attorney about potential tax implications.

Can I disinherit a child in Virginia?

Yes, you can intentionally disinherit an adult child in Virginia. This must be done with very clear and unambiguous language in your will or trust to avoid a potential legal challenge.

Can I disinherit my spouse in Virginia?

No, not entirely. Virginia law gives a surviving spouse the right to claim an “elective share” of the deceased spouse’s estate, regardless of what the will says. This is a complex calculation, but it prevents a spouse from being completely disinherited.

What is a Commissioner of Accounts?

In Virginia, the Commissioner of Accounts is a lawyer appointed by the Circuit Court in each locality (like Alexandria) to oversee the administration of estates in probate. The Executor or Administrator must file a detailed inventory and regular accountings with the Commissioner for approval.

Take Control of Your Future with Law Offices Of SRIS, P.C.

Creating a comprehensive estate plan is one of the most significant and responsible actions you can take for yourself and your loved ones. It replaces uncertainty with a clear, legally sound strategy. If you are ready to discuss your unique situation and secure your legacy, our seasoned attorneys are here to provide the guidance you need. We invite you to contact our office to schedule a confidential case assessment.

Call the Law Offices Of SRIS, P.C. today at 888-437-7747 to begin the conversation.